Thông tư 11/2010/TT-BKH

CIRCULAR

REGULATING IN DETAILS ON COMPETITIVE OFFER

Pursuant to the Procurement Law No.61/2005/QH11 dated November 29, 2005;

Pursuant to the Law amending and supplementing some Articles of the laws relating to basic construction investment No.38/2009/QH12 dated June 19, 2009;

Pursuant to the Decree No.85/2009/ND-CP dated October 15, 2009 of the Government guiding the implementation of the Law on Procurement and selection of construction contractors under the Construction Law;

Pursuant to the Decree No.116/2008/ND-CP dated November 14, 2008 of the Government regulating functions, duties, powers and organizational structure of Ministry of Planning and Investment,

The Ministry of Planning and Investment specifies the competitive offer as follows:

Article 1. Scope of governing

Goods procurement bid packages under the projects defined in Article 1 of the Procurement Law when applying the form of competitive offer must satisfy the following conditions:

- There is a bid package value less than two billion;

- As a common type of goods (with many users and supply source to be ensured, stable), available on the market (the goods are delivered immediately upon demand without going through the order for design, processing, fabrication, production), with technical characteristics to be standardized (by Vietnam standards, basic standards, international standards or foreign standards) and similar in quality (be able to replace each other by the same technical features, usability and other features).

Article 2. Subjects of application

Domestic organizations or individuals applying the form of competitive offer to procure goods.

Article 3. Document Forms requesting for competitive offer

1. The document forms requesting for competitive offer issued together with this Circular apply to form of domestic competitive offer. In case of application of the form of international competitive offer, contents prescribed in this form may be amended and supplemented accordingly.

2. For goods procurement bid packages under the ODA-funded projects, the cases approved by the sponsors shall comply with these forms or they may be modified, added some contents in accordance with provisions on bidding in the treaties in which the socialist Republic of Vietnam is a member or the international agreement which has signed by the agency or organization authorized by the Socialist Republic of Vietnam.

3. The document forms requesting for competitive offer issued together with this Circular include:

- Document form requesting for competitive offer (Form A) applying to the bid packages with value at 500 million VND to less than 2 billion VND;

- Document form requesting for reducing competitive offer (Form B) applying to the bid packages with value at less than $ 500 million VND.

In these forms, the words in italic are the contents as a guide, illustration and will be specified by users based on the size and nature of the bid package. In case of amendments, addition to the part in normal in these forms, the organizations and individuals document for competitive offer must explain in writing and ensure not contrary to the provisions of the legislation on bidding; investors must take responsibility before law for the amendments and supplements.

Article 4. Organization of implementation

1. This Circular takes effect as from August 01, 2010.

2. The ministries, ministerial-level agencies, Governmental agencies, other central agencies, the People's Committees at all levels, concerned organizations and individuals shall implement this Circular.

3. During the execution, if any problems arise, the ministries, ministerial-level agencies, Governmental agencies, other central agencies, the People's Committees at all levels and concerned organizations and individuals shall send comments to the Ministry of Planning and Investment for timely review and revision.

FORM A

DOCUMENT FORM REQUESTING FOR COMPETITIVE OFFER
(Issued together with Circular No.11/2010/TT-BKH dated May 27, 2010 the Ministry of Planning and Investment)

DOCUMENTS REQUESTING FOR COMPETITIVE OFFER

(Name of bid package)

(Name of project)

(Name of investor)

TABLE OF CONTENTS

Abbreviated terms ...............................................................................................................

A. Instructions to bidders.....................................................................................................

B. Technical requirements and evaluation criteria................................................................

C. Forms .............................................................................................................................

Form No.1. The tender application..........................................................................................

Form No.2. Power of Attorney................................................................................................

Form No.3. Partnership agreement..........................................................................................

Form No.4. Price list .............................................................................................................

D. The draft contract. ...........................................................................................................

ABBREVIATED TERMS

A. INSTRUCTIONS TO BIDDERS

Section 1. Contents of the bid package

The bid inviter shall invite the bidders to participate in competitive offer for the package _______ [Insert name of the bid package according to the approved procurement plan](1) under the project ______________ [Insert name of the approved project].

Section 2. Scope of supply

Scope of supply includes ___________ [state requirements on quantity/scope of supply of goods]⁽²⁾

Section 3. Time limit for providing goods

The time limit for supply of goods is within _______ days [state number of days] days after the contract takes effect.

Section 4. Content of HSDX

1. HSDX well as all texts and documents exchanged between the bid inviter and contractors related to competitive offer must be written in Vietnamese.

2. HSDX prepared by the contractor including the following contents:

- Documents proving the validity of the contractors (certificates of business registration, investment certificates issued under the provisions of law or the establishment decision for the organizations having no business registration);

- The tender application in Form No.1, Part C;

- The price list in Form No.4, Part C;

- Written agreements between the members under Form No.3, Part C in case of joint-names;

- Other documents (if any).

Section 5. Tender application

Tender application is fully recorded in Form No.1, Part C, signed by the legal representative of the contractor (the legal representative of the contractor or authorized person accompanied with a duly letter of attorney in Form No.2, Part C).

Section 6. Offer price(3)

1. Offer price is the price stated in the tender application by the contractor after deducting the discount (if any). The offer price must include all expenses necessary to carry the bid package on the basis of HSYC requirements. The offer price is offered in the currency of Vietnam

2. In case the contractor has letter of discount, it may be submitted together with HSDX or may be submitted separately but must ensure that the bid inviter is received before the deadline of HSDX submission. Where the letter of discount is submitted with together HSDX, the contractor shall notify the bid inviter before the deadline of HSDX submission or it must have a list of HSDX components including the letter of discount. In the letter of discount, it needs to specify the content, the way of discount for each specific type of goods specified in offer price list with absolute value. In case of not clearly stating the content, the way of discount, it is known as decreased evenly for all goods specified in the offer price list.

3. The offer price list must be fully recorded in the Form No.4 of Part C, signed by the legal representative of the contractor.

Section 7. Validity of HSDX

Validity of HSDX is _____ days from the deadline for HSDX submission to be ______ o’clock, day ___ month ___ year _________.

[List the number of days based on the size and nature of the bid package. For example, the validity of HSDX is 30 days from 10 o’clock, December 01, 2009, state clearly the HSDX is effect from 10 o’clock, December 01, 2009 to 24 o’clock, December 30, 2009]

Section 8. Preparation and submission of HSDX

1. HSDX prepared by the bidder must be typed, printed with indelible ink, written page numbers in consecutive order. The tender application, offer price list, letter of discount (if any) and additional documents to clarify HSDX (if any) must be signed and sealed (if any) by the legal representative of the contractor. The letters inserted centrally, erased or overwritten the printing version is valid only when it is signed (by the signer of tender application) beside and sealed (if any).

2. Contractors shall submit the HSDX to the bid inviter by person, or by post or fax but it must ensure that the bid inviter is received before the deadline of HSDX submission to be ___ o’clock, day ___ month ___ year ____ [Record the deadline of HSDX submission, to meet the regulations of time from the HSYC issuance to the HSDX submission deadline is at least 5 days]. HSDX of the contractor sent after the deadline of HSDX submission is invalid and rejected.

Section 9. Clarification of HSDX

1. In the evaluation process of HSDX, the bid inviter may request bidders to clarify the content of HSDX (including the clarification of abnormal unit price) and to provide additional documents in the case HSDX is lack of documentation as required by HSYC provided that it does not make the basic content of submitted HSDX change, does not make the offer price change.

2. The clarification of HSDX is made between the bid inviter and contractors with HSDX needs to be clarified under the form of direct exchange (the bid inviter invites the contractors to meet directly to exchange, the contents of question and answer must be made in writing) or indirectly (the bid inviter sends written requests for clarification and the contractor shall reply in writing). In a written request for clarification, it needs to specify the time limit for the contractor’s clarification. Content of HSDX clarification presented in writing is preserved by the bid inviter as part of HSDX. In case of beyond  the deadline to clarify but the bid inviter has not received written clarification or in case the contractor sends a written clarification but it does not meet the requirements of the bid inviter, the bid inviter shall consider and handle according to the provisions of current law.

Section 10. Evaluation of HSDX

HSDX assessment is done in the following order:

1. Inspection of the validity of HSDX, including:

a) Eligibility of bidders as specified in Clause 2, Section 4 of this Section (after clarification or providing additional documents at the request of the bid inviter);

b) The time and valid signatures in the documents such as the tender application, the offer price list, joint-name agreement (if any);

c) Effect of HSDX as prescribed in Section 7 of this Part.

HSDX of contractor will be removed and not be further considered if the contractor does not meet one of the above contents.

2. Technical evaluation: The bid inviter evaluates by the technical requirements stated in the HSYC for the HSDX meeting requirements on eligibility. The evaluation of the technical requirements is made by the method according to the criterion "satisfactory" or "unsatisfactory". HSDX shall pass the technical evaluation when all technical requirements are evaluated as "satisfactory".

3. Comparison of the offer price:

a) The bid inviter repairs the fault and rectifies errors (if any) as prescribed in Article 30 of Decree 85/CP.

b) The bid inviter compares the offer prices of HSDX meeting the technical requirements to determine that the HSDX with lowest offer price shall be ranked first.

Section 11. Conditions for the bidder proposed as a bid winner

The bidder shall be proposed to be the bid winner as meeting all the following conditions:

- Having valid HSDX and meeting the technical requirements in HSYC;

- Having no name in two or more HSDX as the main contractor and not violating the prohibited acts prescribed by law on bidding;

- Having the lowest offer price after repairing faults, rectifying errors, and not exceeding the price of bid package.

Section 12. Announcement of offer result

The bid inviter announces the offer result in writing to all contractors participating in HSDX after having the decision on approving the result of offer. For the successful contractor, it must specify the time and place for negotiation and contract finalization.

Section 13. Negotiation, finalization and signing of contracts

The bid inviter conducts negotiation, finalization of contract with the successful bidder for the investor to sign contract.

Section 14. Petition in bidding

1. The bidders may petition the results of offer and the related issues in the process of participating in competitive offer upon their rights, interests to be affected under the provisions of Article 72 and Article 73 of the Procurement Law, Chapter X of the Decree 85/CP.

2. In case the bidder has petition on the result of offer and sends the competent person and the Advisory Council on the petition settlement, the bidder will have to pay a fee amount of VND 2,000,000 for permanent assisting department of the Advisory Council on petition settlement. Where the bidder’s petition is concluded as true, the fee paid by the bidder will be reimbursed by individuals and organizations with joint liability.

a) Address to receive letter of petition of the bid inviter: _______ [Record the address to receive letter, fax number, contact phone].

b) Address to receive letter of petition of the investor: _______ [Record the address to receive letter, fax number, contact phone].

c) Address to receive letter of petition of the competent person: _______ [Record the address to receive letter, fax number, contact phone].

d) Address of the permanent assisting department of the Advisory Council: : _______ [Record the address to receive letter, fax number, contact phone].

Section 15. Handling of violations

In case the bidders commit acts of violations on procurement law, depending on the seriousness of the violation will be handled by the provisions of the Procurement Law, the Law Amending, the Decree 85/CP and the regulations of other relevant laws.

B. TECHNICAL REQUIREMENTS AND EVALUATION CRITERIA

1. Technical requirements

Depending on the size and nature of the bid package, the bid inviter shall specify the technical requirements in the below Table properly.

Note:

The technical requirements are not given the conditions to limit the participation of bidders or to create advantages for one or several bidders causing unfair competition. In special cases, if necessary to name brand, catalog of a certain manufacturer, or goods from a certain country or territory for reference, illustration for the technical requirements of the goods, it must be together with the phrase "or equivalent" after the brand, catalog or origin mentioned, and clearly define the concept of equivalence means that there is a similar specification, features to be equivalent to the goods stated for not creating a orientation for a product or a certain bidder.

2. Standards for assessment

Using the method according to the criteria "satisfactory" or "unsatisfactory ", HSDX is assessed as meeting the technical requirements when all technical requirements are evaluated as "satisfactory",

For example, standards of technical evaluation by the criteria "satisfactory" or "unsatisfactory" are given in Appendix 1 of this HSYC Form.

C. FORM

Form No.1

TENDER APPLICATION

____, day____ month ___ year ______

To: ____________________ [Name of the bid inviter]

(Hereinafter called as the bid inviter)

After studying the HSYC for competitive offer and Amendments of HSYC Number _____ [Enter the number, day of the amendments, if any] that we have received, we , ____ [Insert name of bidder], commit to perform the bid package ____ [Insert name of the bid package] according to the requirements of the HSYC with a total amount of _____ [write a value in numbers, in words] together with price list attached.

If our HSDX is accepted, we commit to deliver goods in accordance with the terms agreed in the contract.

This HSDX is valid in a period_____ days [write the number of days], from ___ am/pm, day ___ month ___ year ____ [record deadline of the HSDX submission].

Note:

(1) Where the legal representative of the bidder authorizes his/her subordinate to sign the tender application, it must be attached the Power of Attorney in Form No.2 of this Part. Where the company charter, decisions to establish branches or the other concerned documents has an assignment of responsibilities for the subordinates to sign in the tender application, it must be enclosed with copies of documents, texts (it is no need to make the Power of attorney in Form No.2 of this Part). Before signing the contract, the bid winner investor shall submit to the investor the certified copies of these documents, texts. When the initial declared information is detected incorrect, then the bidder is considered as violation of clause 2 of Article 12 of the Procurement Law and shall be handled as prescribed in Section 15 of Part A of this HSYC.

Form No.2

POWER OF ATTORNEY ⁽¹⁾

Today, day ___ month ___ year ___, at ______________

I am _____ [Insert name, ID number or passport number and title of legal representative of the bidder], is the legal representative of _____ [Enter the name of the bidder] with address at _____ [Record address of the bidder] hereby authorize the ____ [Insert name, ID number or passport number and title of authorized person] to perform the following tasks in the process of participating in competitive offer for the bid package _____ [Enter the name of bid package] under the project ____ [Insert name of the project] held by _____ [Enter the name of the bid inviter]:

[- Signing the tender application;

- Signing the joint-names agreement (if any);

- Signing documents and materials for dealing with the bid inviter in the process of participating in competitive offer, including a written explanation, clarification of HSDX;

- Participating in the process of negotiation and finalization of the contract;

- Signing a contract with the investor if winning the bid.]⁽²⁾

The above mentioned authorized person only performs the works within the scope authorized as legal representative of the _____ [Enter the name of the bidder]. ______ [Enter the name of the bidder] takes completely responsibility for the works performed by _____ [Enter the name of authorized person] ​​within the scope of authorization.

This Power of attorney takes effect from _____ until _____ ⁽³⁾. This Power of attorney is made in ___ copies with the same legal value, the authorizing person keeps ____copy, the authorized person keeps ___ copy.

Note:

(1) In case of authorization, the original of the power of attorney must be sent to the bid inviter together with the tender application as prescribed in Section 5, Part A. The authorization of the legal representative of the bidder to the deputy, subordinate, branch manager, and head of representative office of the bidder on behalf of the legal representative of the bidder in performing one or more of the contents of work mentioned above. The use of seal in case of authorization could be a seal of the bidder or of the unit that the concerned individual is authorized. Authorized person is not continued to authorize others.

(2) Scope of authorization is decided by the authorized person, including one or more of the above works.

(3) Enter the effective date and expiry date of the power of attorney in accordance with the process participating in the competitive offer.

Form No.3

JOINT-NAME AGREEMENT⁽¹⁾

______, day ___ month ____ year ___

Bid package: ______________________ [Enter name of the bid package]

Under the project: _____________________ [Enter name of the project]

- Based on⁽²⁾ ___________ [the Procurement Law No.61/2005/QH11 dated 29/11/2005 of the National Assembly];

- Based on ⁽²⁾ __________ [the Law amending and supplementing some Articles of the laws relating to basic construction investment No.38/2009/QH12 of the National Assembly on 19/6/2009];

- Based on ⁽²⁾_________ [the Decree No.85/2009/ND-CP dated 15/10/2009 of the Government guiding the implementation of the Law on Procurement and selection of construction contractors under the Construction Law];

- Based on the HSYC for bid package competitive offer _____ [Enter the name of bid package] day ___ month ___ year ____ [date to be recorded in HSYC];

We, the representatives of the parties of the joint-name agreement, include:

Names of members of the joint-names _____ [Enter the name of each member of the joint-names]

Represented by: __________________________________________________________________

Position:_________________________________________________________________________

Address: ________________________________________________________________________

Tel: _____________________________________________________________________________

Fax:_____________________________________________________________________________

E-mail: __________________________________________________________________________

Account no.: _____________________________________________________________________

Tax code: _______________________________________________________________________

Power of Attorney No.___ day ___ month___ year ______ (in case of authorization) The parties (hereinafter referred to as members) agree to sign this joint-name agreement with the following contents:

Article 1. General rules

1. The members voluntarily establish joint-names to participate in the bid package ______ [write name of bid package] under the project ______ [write name the project].

2. The members agree the name of the joint-names for any transactions related to this bid package as: ______ [write name of the joint-names as agreed].

3. The members commit that there is not any member to arbitrarily join independently in or joint-names with other members to participate in this bid package. In case of winning the bid, there is not any member to have the right to refuse performance of the responsibilities and obligations stipulated in the Agreement unless expressly agreed in writing by the members of the joint-names. Where a member of the joint-names refuses to complete its own responsibilities as agreed, that member shall be handled as follows:

- Pay compensation for damages caused to the parties in the joint-names.

- Pay compensation for damages caused to the investors as specified in the Contract.

- Other forms of handling ______ [Specify other forms of handling].

Article 2. Assignment of responsibilities

The members agree to assign responsibilities for implementation of the bid package ______ [write name of package] under the project ______ [write name of project], for each member as follows:

1. Member head of the joint-names:

The parties agree to authorize to ______ [Write name a party] as a member heading the joint-names, representing the joint-names in the following part of work(3):

[- Signing the tender application;

- Signing documents and materials for dealing with the bid inviter in the course of participating in the competitive offer, including a written request to clarify HSYC and written explanation to clarify HSDX;

- Participating in the process of negotiation and finalization of the Contract;

- Signing a petition in the case of the Contractor’s proposals;

- Other works except for signing Contract ______ [specify the content of other jobs (if any)].

2. The members of the joint-names ______ [Specify the work and responsibility of each member, including member heading the joint-names and if possible, record the percentage of respective value].

Article 3. Effect of joint-name Agreement

1. Joint-name Agreement takes effect from its signing date.

2. Joint-name Agreement terminates its effect in the following cases:

- The parties fulfilled their responsibility, their obligations and carry out the liquidation of the Agreement;

- The parties agree to terminate;

- The joint-name bidder does not win the bidding;

- Cancellation to participate in bid package of competitive offer ______ [Write name package] under the project ______ [Write name of project] as notified by the bid inviter.

Joint-name Agreement is made into ­____ copies, each party keeps ____ copy, the copies have the same legal value:

LEGAL REPRESENTATIVE OF MEMBER HEADING THE JOINT-NAMES
[Full name, title, signature and stamp]

LEGAL REPRESENTATIVE OF MEMBERS OF JOINT-NAMES
[Full name of each member, title, signature and stamp]

 ⁽¹⁾ Depending on the size and nature of the bid package, content of joint-name agreement under this Form can be amended and supplemented accordingly.

⁽²⁾ Update the current legal documents

⁽³⁾ Scope of authorization includes one or more of the above works.

Form No.4

OFFER PRICE LIST

D. DRAFT CONTRACT (1)

_____, day ____ month ___ year ____

Contract No.: ___________

Bid package: _____ [name of bid package]

Under the project: _____ [name of project]

- Based on ^([2])  _____ (The Civil code No.33/2005/QH11 of the National Assembly dated 14/6/2005);

- Based on (2) _____ [The Procurement Law No.61/2005/QH11 dated 29/11/2005 of the National Assembly];

- Based on ⁽²⁾ _____ [The Law amending and supplementing some Articles of the law relating to basic construction investment No.38/2009/QH12 of the National Assembly on 19/6/2009];

- Based on ⁽²⁾_____ [The Decree No.85/2009/ND-CP dated 15/10/2009 of the Government guiding the implementation of the Law on Procurement and Selection of construction Contractors under the Construction Law];

- Based on the Decision No. _____ day ___ month ___ year ____ of ____ on the approval of bid package competitive offer results _____ [Enter the name of bid package] and notice of the bid package competitive offer result No. ____day ____month ____ year ____ of the bid inviter;

- Based on the record of negotiation and finalization of the Contract signed by the bid inviter and the successful Contractor on ___ month ___ year ______;

We, representing the Contracting parties, include:

Investor (hereinafter referred to as Party A)

Name of the investor [Write name of investor]: ________________________

Address: _______________________________________________

Tel: _____________________________________________

Fax: __________________________________________________

E-mail: ________________________________________________

Account: _____________________________________________

Tax Code: ____________________________________________

Represented by Mr./Ms.: ______________________________________

Position: _____________________________________________

Power of Attorney to sign contract No.____ day___ month ___ year ______(in case of authorization).

Contractor (hereinafter referred to as Party B)

Name of the contractor [Write name of contractor]: ____________________

Address: _______________________________________________

Tel: _____________________________________________

Fax: __________________________________________________

E-mail: ________________________________________________

Account: _____________________________________________

Tax Code: ____________________________________________

Represented by Mr./Ms.: ______________________________________

Position: _____________________________________________

Power of Attorney to sign contract No.____ day___ month ___ year ______(in case of authorization) or other concerned documents.

The two sides sign this Contract of goods provision with the following contents:

Article 1. Objects of the Contract

Objects of the Contract are the goods stated in detail in Appendix attached herewith.

Article 2. Components of Contract

Components of Contract and legal order of priority are as follows:

1. This written Contract (together with Appendices);

2. Minutes of negotiation and finalization of the Contract;

3. Decision on approving offer results;

4. The proposal contract and documents clarifying HSDX of successful contractor (if any);

5. HSYC of competitive offer and documents supplementing to the HSYC of competitive offer (if any);

6. The other attached documents (if any).

Article 3. Responsibilities of Party A

Party A commits to pay to Party B according to the Contract price and the payment method stated in Article 5 of this Contract as well as to fulfill other duties and responsibilities specified in the Contract.

Article 4. Responsibilities of Party B

Party B commits to provide Party A full range of the goods as stated in Article 1 of this Contract, and also pledges to fulfill the obligations and responsibilities stated in the Contract.

Article 5. Contract price and payment method

1. Contract price: __________ [Specify a value in figures and in words]

2. Payment Method:

a) Payment form_________ [Based on the nature and requirements of the bid package to specify payment in cash, by cheque, or bank transfer …].

b) Payment term ______ [Based on the nature and requirements of the bid package to prescribe the immediate payment or payment within a certain number of days since the contractor has presented all the documents as requested. At the same time, it should specify the payment vouchers in accordance with the provisions of the law].

c) The times of payments ________ [Based on the nature and requirements of the bid package to prescribe the times of payments, it may be following the stages, the work parts which have already completed or one-time payment upon completion of all contract works].

Article 6. Form of Contract: packaged

[Specify the forms of contract in accordance with Article 6 DKCT].

Article 7. Duration of Contract performance:

Duration of Contract performance: __________ [Record duration of Contract performance in accordance with Section 3, Part A, HSDX and the result of negotiation and finalization of the contract between the parties].

Article 8. Correction, addition to contract

1. Correction, addition to contracts may be made in the following cases:

a) Change of the mode of transport;

b) Change of the place of delivery;

c) Change of the duration of the contract performance;

d) Other items (if any).

2. Party A and Party B shall conduct negotiations for used as a basis for signing additional appendix to the contract in case of correction, addition to contract.

Article 9. Guarantee for contract performance

1. Party B shall take measures to ensure contract performance by the following requirements:

- Deadline to submit guarantee of contract performance: __________ [Depending on the size and nature of the bid package to specify time limit, for example: The deadline to submit guarantee of contract performance is ____ days before signing contract]

- Form of contract performance guarantee: ______ [Specify form of contract performance guarantee. Based on the requirements of the bid package to provide for the application of one or forms of guarantee such as: deposit, escrow or letter of guarantee from banks, financial institutions]

- Value of the contract performance guarantee: _____% of the contract value [write a value of the contract performance guarantee equal to 3% of contract price].

- Effect of the contract performance guarantee: since the effective date of the contract until the end of day ___ month ___ year _____ [Based on the nature and requirements of the bid package to prescribe this time limit, for example: contract performance guarantee shall be effective until all the goods are handed over, the two sides signed the minutes of acceptance and Party B switches to the warranty obligations as prescribed].

2. The contract performance guarantee will be paid to Party A if Party B does not complete its obligations and its responsibilities under the contract causing damage to Party A.

3. Party A shall return guarantee of contract performance to Party B within the time limit: _____ [state time limit for returning guarantee of contract performance based on the nature and requirements of the bid package].

Article 10. Termination of contract

1. Party A or Party B may terminate the contract if either party has violated basically the contract as follows:

a) Party B fails to perform part or all of the contents of the contract within the time limit stated in the contract or within the period extended by Party A;

b) Party B is bankrupt or dissolved;

c) Other acts (if any).

2. In the case Party A terminates the contract under Point a, Clause 1 of this Article, Party A may contract with other suppliers for performing the contract part that Party B has not done. Party B will be responsible for paying compensation to Party A the excess costs for the implementation of this contract part. However, Party B must continue to perform the contract that Party B is doing and takes responsibility for the warranty for that work part.

3. In case Party A terminates contract under point b, Clause 1 of this Article, Party A is not submitted any cost for compensation. The termination of this contract does not undermine Party A’s entitled rights under the provisions of the contract and law.

Article 11. The validity of goods

Party B shall clearly state the origin of goods; symbol code, labeling of the products and the accompanying documents to prove the validity of the goods and must comply with the provisions of the current standards in the country or territory where the goods originate.

Article 12. Supply, transportation, inspection and testing of goods

1. Party B shall provide the goods and deliver documents and vouchers (attached) according to the schedule outlined in HSYC, namely: _______ [Depending on the size and nature of the bid package to specify the delivery and materials, documents attached].

2. Requirements for goods transportation: _____ [Specify requirements for goods transportation, including delivery locations based on the size and nature of the bid package].

3. Party A or Party A's representative may inspect and test provided goods to ensure that goods have technical specifications in accordance with contract requirements. Time, place and manner of inspection and testing: ______ [state time, location, manner, cost for the inspection, testing ... as well as regulate on the method to deal with unsatisfactory goods through inspection, testing]. Where goods are not in accordance with technical specifications under the contract, Party A has the right to refuse and Party B should be responsible for replacing or carrying out the necessary adjustments to meet the requirements on technical specifications. If Party B cannot afford to replace or repair the unsatisfactory goods, Party A shall have the right to organize the replacement or adjustment if necessary, all risks, and concerned costs shall be incurred by Party B. Party A’s inspection and testing of the goods does not lead to immunity from Party B’s warranty obligations or other obligations under the contract.

Article 13. Copyright and goods insurance

1. Party B shall be fully liable for all damages arising from third-party claims of infringement of intellectual property rights relating to goods supplied by Party B to Party

2. Goods provided by Party B must be fully insured to cover such losses, extraordinary losses during transportation, storage and delivery as follows: ______ [Based on the nature and requirements of the bid package to specify this content on the basis of ensuring compliance with the provisions of the law].

Article 14. Warranty

1. Party B ensures that goods supplied under the contract are new, unused, are ensured quality by manufacturing standard without defects arising leading to any disadvantage in the course of using the goods.

2. Warranty requirements for goods as follows: _____ [State the warranty requirements (if any) as follows: the time limit for warranty, warranty card enclosed, settlement mechanism for damages, defects arising during use of the goods in the warranty period ...].

Article 15. Settlement of disputes

1. Party A and Party B are responsible for settling disputes arising between the parties through negotiation or conciliation.

2. If the disputes cannot be settled through negotiation, conciliation within a period: ____ days [specify time] after the disputes arise, any party may also lodge the dispute for settlement by the mechanism: ______ [state the dispute settlement mechanism].

Article 16. Validity of the contract

1. The contract is effective from _____ [specify the effective date of the contract].

2. The contract expires after the two sides conduct the liquidation of contracts according to law.

The contract is made into ____copies, the investor keeps ____copy, the contractor keeps___ copy, the copies of contract have the same legal value.

APPENDIX

LIST OF GOODS UNDER CONTRACT

(Attached to Contract No. ____, ___ day ___ month ___ year ___)

[This Appendix is prepared on the basis of HSYC, HSDX and agreements reached during the negotiation and finalization of the contract, including the list of goods provided].

The list of goods:

1…..

2…..

3…..

…..

APPENDIX 1

FOR EXAMPLE

Organization to valuate technique according to criterion “satisfactory”, “unsatisfactory” for the bid package “Procurement of A4 printers”

FORM B

DOCUMENT FORM REQUESTING FOR REDUCED COMPETITIVE OFFER
(Issued together with Circular No.11/2010/TT-BKH dated May 27, 2010 the Ministry of Planning and Investment)

DOCUMENTS REQUESTING FOR REDUCED COMPETITIVE OFFER

(Name of bid package)

(Name of project)

(Name of investor)

TABLE OF CONTENTS

A. Request for offer.................................................................................................................

B. Proposal documents........................................................................................................

Form No.1. The tender application..........................................................................................

Form No.2. Power of Attorney................................................................................................

Form No.4. Price list..............................................................................................................

C. The draft contract. ...........................................................................................................

A. REQUEST FOR OFFER

The bid inviter invites the bidders to participate in competitive offer for the bid package _______ [Insert name of the bid package according to the approved procurement plan](1) under the project ______________ [Insert name of the approved project] with scope of supply includes ___________ [state requirements on quantity/scope of supply of goods] (2).

Goods must meet the technical requirements in the Table below and are provided within ____ days [Record number of days] after the contract takes effect.

Note:

The technical requirements are not given the conditions to limit the participation of bidders or to create advantages for one or several bidders causing unfair competition. In special cases, if necessary to name brand, catalog of a certain manufacturer, or goods from a certain country or territory for reference, illustration for the technical requirements of the goods, it must be together with the phrase "or equivalent" after the brand, catalog or origin mentioned, and clearly define the concept of equivalence means that there is a similar specification, features to be equivalent to the goods stated for not creating a orientation for a product or a certain bidder.

B. PROPOSAL DOCUMENTS

Proposal documents submitted by the bidders to the bid inviter include:

- The tender application is fully recorded in Form No.1 of this Part, is signed by the legal representative of the bidder (the legal representative of the bidder or authorized person accompanied by a duly power of attorney under Form No.2 of this Part).

- The price list is fully recorded in Form No.3 of this Part, is signed by the legal representative of the bidder.

Form No.1

TENDER APPLICATION

____, day____ month ___ year ______

To: ____________________ [Name of the bid inviter]

(Hereinafter called as the bid inviter)

After studying the HSYC for competitive offer and Amendments of HSYC for competitive offer Number _____ [Enter the number, day of the amendments, if any] that we have received, we , ____ [Insert name of bidder], commit to perform the bid package ____ [Insert name of the bid package] according to the requirements of the HSYC with a total amount of _____ [write a value in numbers, in words] together with price list attached.

If our HSDX is accepted, we commit to deliver goods in accordance with the terms agreed in the contract.

This HSDX is valid in a period_____ days [write the number of days], from ___ am/pm, day ___ month ___ year ____ [record deadline of the HSDX submission].

Note:

(1) Where the legal representative of the bidder authorizes his/her subordinate to sign the tender application, it must be attached the Power of Attorney in Form No.2 of this Part. Where the company charter, decisions to establish branches or the other concerned documents has an assignment of responsibilities for the subordinates to sign in the tender application, it must be enclosed with copies of documents, texts (it is no need to make the Power of attorney in Form No.2 of this Part). Before signing the contract, the bid winner shall submit to the investor the certified copies of these documents, texts. When the initial declared information is detected incorrect, then the bidder is considered as violation of clause 2 of Article 12 of the Procurement Law and shall be handled as prescribed of current law on procurement.

Form No.2

POWER OF ATTORNEY ⁽¹⁾

Today, day ___ month ___ year ___, at ______________

I am _____ [Insert name, ID number or passport number and title of legal representative of the bidder], is the legal representative of _____ [Enter the name of the bidder] with address at _____ [Record address of the bidder] hereby authorize the ____ [Insert name, ID number or passport number and title of authorized person] to perform the following tasks in the process of participating in competitive offer for the bid package _____ [Enter the name of bid package] under the project ____ [Insert name of the project] held by _____ [Enter the name of the bid inviter]:

[- Signing the tender application;

- Signing the joint-names agreement (if any);

- Signing documents and materials for dealing with the bid inviter in the process of participating in competitive offer, including a written explanation, clarification of HSDX;

- Participating in the process of negotiation and finalization of the contract;

- Signing a contract with the investor if winning the bid.]⁽²⁾

The above mentioned authorized person only performs the works within the scope authorized as legal representative of the _____ [Enter the name of the bidder]. ______ [Enter the name of the bidder] takes completely responsibility for the works performed by _____ [Enter the name of authorized person] ​​within the scope of authorization.

This Power of attorney takes effect from _____ until _____ ⁽³⁾. This Power of attorney is made in ___ copies with the same legal value, the authorizing person keeps ____copy, the authorized person keeps ___ copy.

Notes:
(1) In case of authorization, the original of the power of attorney must be sent to the bid inviter together with the tender application as prescribed in this Section. The authorization of the legal representative of the bidder to the deputy, subordinate, branch manager, and head of representative office of the bidder on behalf of the legal representative of the bidder in performing one or more of the contents of work mentioned above. The use of seal in case of authorization could be a seal of the bidder or of the unit that the concerned individual is authorized. Authorized person is not continued to authorize to others.

(2) Scope of authorization is decided by the authorized person, including one or more of the above works.

(3) Enter the effective date and expiry date of the power of attorney in accordance with the process participating in the competitive offer.

Form No.3

PRICE LIST

C. DRAFT CONTRACT (1)

_____, day ____ month ___ year ____

Contract No.: ___________

Bid package: _____ [name of bid package]

Under the project: _____ [name of project]

- Based on ^([2])  _____ (The Civil code No.33/2005/QH11 of the National Assembly dated 14/6/2005);

- Based on (2) _____ [The Procurement Law No.61/2005/QH11 dated 29/11/2005 of the National Assembly];

- Based on ⁽²⁾ _____ [The Law amending and supplementing some Articles of the law relating to basic construction investment No.38/2009/QH12 of the National Assembly on 19/6/2009];

- Based on ⁽²⁾_____ [The Decree No.85/2009/ND-CP dated 15/10/2009 of the Government guiding the implementation of the Law on Procurement and Selection of construction Contractors under the Construction Law];

- Based on the Decision No. _____ day ___ month ___ year ____ of ____ on the approval of bid package competitive offer results _____ [Enter the name of bid package] and notice of the bid package competitive offer result No. ____day ____month ____ year ____ of the bid inviter;

- Based on the record of negotiation and finalization of the Contract signed by the bid inviter and the successful Contractor on ___ month ___ year ______;

We, representing the Contracting parties, include:

Investor (hereinafter referred to as Party A)

Name of the investor [Write name of investor]: ________________________

Address: _______________________________________________

Tel: _____________________________________________

Fax: __________________________________________________

E-mail: ________________________________________________

Account: _____________________________________________

Tax Code: ____________________________________________

Represented by Mr./Ms.: ______________________________________

Position: _____________________________________________

Power of Attorney to sign contract No.____ day___ month ___ year ______(in case of authorization).

Contractor (hereinafter referred to as Party B)

Name of the contractor [Write name of contractor]: ____________________

Address: _______________________________________________

Tel: _____________________________________________

Fax: __________________________________________________

E-mail: ________________________________________________

Account: _____________________________________________

Tax Code: ____________________________________________

Represented by Mr./Ms.: ______________________________________

Position: _____________________________________________

Power of Attorney to sign contract No.____ day___ month ___ year ______(in case of authorization) or other concerned documents.

The two sides sign this Contract of goods provision with the following contents:

Article 1. Objects of the Contract

Objects of the Contract are the goods stated in detail in Appendix attached herewith.

Article 2. Components of Contract  

Components of Contract and legal order of priority are as follows:

1. This written Contract (together with Appendices);

2. Minutes of negotiation and finalization of the Contract;

3. Decision on approving offer results;

4. HSDX and documents clarifying HSDX of successful contractor (if any);

5. HSYC of competitive offer and documents supplementing to the HSYC of competitive offer (if any);

6. The other attached documents (if any).

Article 3. Responsibilities of Party A

Party A commits to pay to Party B according to the Contract price and the payment method stated in Article 5 of this Contract as well as to fulfill other duties and responsibilities specified in the Contract.

Article 4. Responsibilities of Party B

Party B commits to provide Party A full range of the goods as stated in Article 1 of this Contract, and also pledges to fulfill the obligations and responsibilities stated in the Contract.

Article 5. Contract price and payment method

1. Contract price: __________ [Specify a value in figures and in words]

2. Payment Method:

a) Payment form_________ [Based on the nature and requirements of the bid package to specify payment in cash, by cheque, or bank transfer …].

b) Payment term ______ [Based on the nature and requirements of the bid package to prescribe the immediate payment or payment within a certain number of days since the contractor has presented all the documents as requested. At the same time, it should specify the payment vouchers in accordance with the provisions of the law].

c) The times of payments ________ [Based on the nature and requirements of the bid package to prescribe the number of payments, it may be following the stages, the work parts which have already completed or one-time payment upon completion of all contract works].

Article 6. Form of Contract: packaged

Article 7. Duration of Contract performance:

Duration of Contract performance: __________ [Record duration of Contract performance in accordance with Part A, HSDX and the result of negotiation and finalization of the contract between the parties].

Article 8. Supply, transportation, inspection and testing of goods

1. Party B shall provide the goods and deliver documents and vouchers (attached) according to the schedule outlined in HSYC, namely: _______ [Depending on the size and nature of the bid package to specify the delivery and materials, documents attached].

2. Requirements for goods transportation: _____ [Specify requirements for goods transportation, including delivery locations based on the size and nature of the bid package].

3. Party A or Party A's representative may inspect and test provided goods. Time, place and manner of inspection and testing: ______ [state time, location, manner, cost for the inspection, testing ... as well as regulate on the method to deal with unsatisfactory goods through inspection, testing].

Article 9. Warranty

Warranty requirements for goods as follows: _____ [State the warranty requirements as follows: the time limit for warranty, warranty card enclosed, settlement mechanism for damages, defects arising during use of the goods in the warranty period ...].

Article 10. Settlement of disputes

1. Party A and Party B are responsible for settling disputes arising between the parties through negotiation or conciliation.

2. If the disputes cannot be settled through negotiation, conciliation within a period: ____ days [specify time] after the disputes arise, any party may also lodge the dispute for settlement by the mechanism: ______ [state the dispute settlement mechanism].

Article 11. Validity of the contract

1. The contract is effective from _____ [specify the effective date of the contract].

2. The contract expires after the two sides conduct the liquidation of contracts according to law.

The contract is made into ____copies, the investor keeps ____copy, the contractor keeps___ copy, the copies of contract have the same legal value.

APPENDIX

LIST OF GOODS UNDER CONTRACT

(Attached to Contract No. ____, ___ day ___ month ___ year ___)

[This Appendix is prepared on the basis of HSYC, HSDX and agreements reached during the negotiation and finalization of the contract, including the list of goods provided].

The list of goods:

1…..

2…..

3…..

…..