Thông tư 11/2015/TT-BKHDT

CIRCULAR

GUIDELINES FOR MAKING REQUEST FOR PROPOSALS IN CASE OF DIRECT CONTRACTING AND COMPETITIVE OFFERING

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

Pursuant to the Government's Decree No. 63/2014/NĐ-CP dated June 26, 2014 on guidelines for some Articles on contractor selection of the Law on Bidding;

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 promulgates a Circular to provide guidelines for making request for proposals in case of direct contracting and competitive offering.

Article 1. Scope

This Circular provides guidelines for making request for proposals of procurements regulated by Article 1 of the Law on Bidding as follows:

1. The model request for proposals applied to domestic direct contracting for construction and installation following normal procedures (Form No. 01)

2. The model request for proposals applied to domestic direct contracting for goods procurement following normal procedures (Form No. 02);

3. The model request for proposals applied to domestic competitive offering for construction and installation following normal procedures (Form No. 03);

4. The model request for proposals applied to domestic competitive offering for goods procurement following normal procedures (Form No. 04);

5. The model request for proposals applied to domestic competitive offering for construction and installation, goods procurement following abridged procedures (Form No. 05 – Quotation request);

6. Draft contract for construction and installation, goods procurement within the direct contracting limits (Form No. 06 – Draft Contract for abridged direct contracting).

Article 2. Regulated entities

This Circular applies to organizations and individuals (hereinafter referred to as entities) that participate in or involve in selection of contractors for the procurements prescribed in Clause 1 of this Circular.

Article 3. Application of direct contracting, competitive offering processes, model request for proposals, request for quotation, and draft contract

1. Direct contracting under normal procedures is applied to the procurements mentioned in Points b through dd and the procurements that require protection of state secrets mentioned in Point a Clause 1 Article 22 of the Law on Bidding, and satisfy the conditions prescribed in Clause 2 Article 22 of the Law on Bidding.

Direct contracting under abridged procedures is applied to the procurements mentioned in Point a Clause 1 Article 22 of the Law on Bidding (except for procurements that require protection of State secret) and procurements whose prices do not exceed the direct contracting limits prescribed in Article 54 of Decree No. 63/2014/ND-CP. Form No. 6 enclosed herewith shall apply to procurements whose prices do not exceed the direct contracting limits; Form No. 1 and No. 2 enclosed herewith shall apply to the procurements mentioned in Point a Clause 1 Article 22 of the Law on Bidding if their prices exceed the direct contracting limits.

2. Competitive offering under normal procedures is applied to the procurements mentioned in Article 23 of the Law on Bidding and Clause 1 Article 57 of Decree No. 63/2014/ND-CP.

Competitive offering under abridged procedures is applied to the procurements mentioned in Article 23 of the Law on Bidding and Clause 2 Article 57 of Decree No. 63/2014/ND-CP.

3. When making, appraising, approving a request for proposals in case of direct contracting for construction and installation, goods procurement under normal procedures, Form No. 1 or No. 2 enclosed herewith shall be applied depending on the scale, characteristics of each procurement in order to put forwards appropriate requirements, ensure transparency and economic efficiency.

When making, appraising, approving a request for proposals in case of competitive offering or request for quotation, Form No. 3, Form No. 4, or Form No. 5 enclosed herewith shall be applied depending on the scale, characteristics of each procurement in order to put forwards appropriate requirements, ensure transparency and economic efficiency. It is prohibited to set down conditions that are meant to restrict participation of bidders or bring advantages to one or some bidders and thus cause unfair competition.

4. In case the regulations of the model request for proposals, request for quotation, or draft contract are amended, the entity that makes, appraises, approves it must ensure that the amendments are conformable, scientific, reasonable, and do not contravene regulations of law on bidding. The application for approval for the request for proposals or request for quotation must specify such amendments and reasons for making amendments in order for the investor to consider.

5. In case of direct contracting or competitive offering for non-consulting services, the request for proposals, request for quotation, and draft contract shall be made according to the Forms enclosed herewith.

6. In case of international direct contracting or competitive offering for the procurements regulated by Article 1 of this Circular, depending on the scale and characteristics of each procurement, the investor or procuring entity shall change regulations on language, currency, time, and relevant contents to ensure conformity with the Law on Bidding and Decree No. 63/2014/ND-CP.

7. With regard to procurements of projects funded by ODA or concessional loans derived from an international agreement between Vietnam and a sponsor, the models request for proposals, request for quotation, and draft contract enclosed herewith may be applied if they are agreed by the sponsor.

Article 4. Brand names and goods origins

1. In case of direct contracting, the brand names and origins of goods may be specified in the request for proposals.

2. In case of competitive offering, it is necessary to apply specifications, production standards, and technologies that are general; do not apply special specifications and standards that can be met by only few bidders in order to restrict participation of bidders and thus cause unfair competition.

If goods cannot be described by the specifications and standards in the request for proposals or request for quotation, the brand name or category of a specific product may be used to illustrate the technical requirements of goods as long as they go with the phrase “ hoặc tương đương” (“ or the equivalent”); specify the equivalent specifications, uses, standards, and other contents without equivalent origins. Bidders participating in competitive offer may offer goods the brand names specified in the request for proposals/request for quotation, or other brand names if they can prove that such goods are equivalent to or better than goods with the brand names specified in the request for proposals/request for quotation.

Article 5. Implementation

1. This Circular comes into force from December 22, 2015 and replaces Circular No. 04/2010/TT-BKH dated February 01, 2010, Circular No. 11/2010/TT-BKH dated May 27, 2010 of the Ministry of Planning and Investment.

2. Ministries, ministerial agencies, Governmental agencies, other central agencies, the People’s Committees, and relevant entities are responsible for the implementation of this Circular. Difficulties that arise during the implementation of this Circular should be reported to the Ministry of Planning and Investment for guidance./.