Công văn 6144/BKHDT-QLDT

The Government has promulgated Resolution No. 79/NQ-CP dated July 22, 2021 on procurement of medicines, chemicals, supplies, devices and equipment for prevention and control of Covid-19 pandemic (Resolution No. 79/NQ-CP) and Resolution No. 86/NQ-CP dated August 6, 2021 (Resolution No. 86/NQ-CP) on urgent solutions for Covid-19 prevention and control to implement Resolution No. 30/2021/QH15 dated July 28, 2021 by the 15th  National Assembly.

To perform the assignments in the foregoing Resolutions, for consistent, timely, and effective implementation of the procurement law and Resolutions of the Government on particular mechanism and forms of procurement for prevention and control of COVID-19 pandemic, the Ministry of Planning and Investment hereby gives certain instructions to the Ministries, ministerial-level agencies or Governmental agencies, the People’s Committees of provinces and central-affiliated cities as follows:

I. Method of selection of preferred bidders

The Ministries, local governments, and agencies may apply every method of selection of preferred bidders in accordance with the procurement law. In the course of procurement, it is noted to apply certain forms of procurement as prescribed in the Procurement Law and the above-mentioned Resolutions as follows:

1. Competitive bidding

a) In case of e-competitive bidding for procurement of supplies, chemicals, biologicals, medical devices, equipment, and other necessary goods for prevention and control of Covid-19 pandemic, the time for preparation of a bid is at least 10 days. In case of procurement not for prevention and control of Covid-19 pandemic, the time for preparation of a bid shall conform to the Procurement Law.

b) In case of competitive bidding (whether online or not), the competent person or investor shall consider splitting the procurement into packages with suitable scope in a manner appropriate to the bidder's supply capacity and experience.

2. Direct procurement

In case of direct procurement mentioned in Article 24 of the Procurement Law, the investor may apply the result of competitive bidding or limited source bidding of the procurement of goods within 12 months of the ministries, local governments, not only necessarily apply the result of bidding of their own ministries, local governments or agencies. This provision generally applies to all kinds of goods prescribed in Article 4(25) of the Procurement Law, including the procurement not for anti-pandemic purpose.

3. Direct contracting

a) The procurement that needs to be carried out immediately to not cause damage directly to life, health and assets of the community (including procurement of works, goods, non-consulting services and consulting services) and the procurement of drugs, chemicals, supplies, and medical devices for prevention and control of Covid-19 pandemic fall under urgent cases eligible for direct contracting as prescribed in Article 22(1)(a) of the Procurement Law and are not subject to limits of approved budget.

b) With regard to drugs, chemicals, supplies, medical devices, equipment on the list of centralized procurement of a local government and the agency in charge of centralized procurement have aggregated the data of the needs but the competitive bidding has not been carried out, in case of urgency for anti-pandemic purpose, it is necessary to split the quantity of drugs, chemicals, supplies, medical devices, equipment immediately needed for direct contracting as prescribed in Article 22(1)(a) of the Procurement Law.  In case the centralized procurement is carried out in form of online competitive bidding, the time for preparation of a bid is at least 10 days.

c) The direct contracting is carried out under simplified procedures as prescribed in Article 56(1) of Decree No. 63/2014/ND-CP. Pursuant to Article 6(8) of Circular No. 10/2015/TT-BKHDT dated October 26, 2015 of the Ministry of Planning and Investment, after the investor or an authority in charge of procurement awards the contract to a qualified and responsive bidder to perform as quickly as possible, within 7 working days from the date of contract award, the investor shall seek the approval for the plan for selection of preferred bidder from the competent person without prior assessment of plan for selection of preferred bidder.

In respect of simplified direct contracting, it is not required to determine qualifications and experience of the bidder based on the regulations in forms of bidding documents enclosed with Circular No. 01/2015/TT-BKHDT dated February 14, 2015, Circular No. 03/2015/TT-BKHDT dated May 6, 2015, Circular No. 05/2015/TT-BKHDT dated June 16, 2015, Circular No. 14/2016/TT-BKHDT dated September 29, 2016, Circular No. the Circular No. 04/2017/TT-BKHDT dated November 15, 2017. The investor shall be held liable if the bidder fails to perform the contract on schedule and meet quality and effectiveness requirements.

The competent person may approve the plan for selection of preferred bidder before or after the direct contracting based on the extent of urgency for anti-pandemic practices.

4. Selection of preferred bidders in special cases

Selection of preferred bidders in special cases as prescribed in Article 26 of the Procurement Law shall be carried out in accordance with Article 2(4)(a) and Article 2(4)(b) of Resolution No. 86/NQ-CP as follows:

a) The ministries and authorities shall submit the plan for selection of preferred bidders to the Prime Minister for approval based on the assessment of Ministry of Planning and Investment;

b) In case of selection of preferred bidders in special cases as prescribed in Article 26 of the Procurement Law, the President of People’s Committee of province may prepare, assess and approve the plan for selection of preferred bidders at his/her discretion.

II. Determination of budget for procurement

1. The budget for procurement of chemicals, materials, equipment, and services for COVID-19 prevention and control shall be determined in accordance with Article 2(4)(c), Article 2(4)(d) and Article 2(4)(dd) of Resolution No. 86/NQ-CP .

If the budget for procurement is determined in accordance with Article 2(4)(c) of Resolution No. 86/NQ-CP , it is not required to take account of the successful bid (of competitive bidding, shopping method, direct contracting) within the last 6 months if the such successful bid is lower than the market price or lower than 3 quotation prices of suppliers. The budget for procurement may be determined only based on one of the documents mentioned in with Article 2(4)(c) of Resolution No. 86/NQ-CP.

During the selection of preferred bidders, if all bidders offer bid prices higher than the approved budget, the investor shall consider taking appropriate actions as prescribed in Article 117(8) of Decree No. 63/2014/ND-CP .

2. In case of procurement of medicines, the determination of budget for procurement shall comply with Article 14(4) of Circular No. 15/2019/TT-BYT dated July 11, 2019 of the Ministry of Health on procurement of medicines in public health facilities.

In every circumstance, the procuring entity shall ensure that the approved budget is reasonable with the market at the procurement time and avoid any loss and waste.

III. Other contents

1. Preparation of plan for selection of preferred bidders

The plan for selection of preferred bidders shall be prepared for the whole project or procurement project as prescribed in Article 33 of the Procurement Law. If it fails to meet all the conditions to prepare a plan for selection of preferred bidders for the whole project or procurement project, a plan for selection of preferred bidders for one or certain packages shall be prepared in advance. The plan for selection of preferred bidders shall be prepared based on the plan for fund allocation for the whole project, not only based on the plan for fund allocation in each year.

2. Lump sum contract

The lump sum contract for a procurement of goods is determined a lump sum according to the quantities of work. If the quantity in the contract for procurement of medicines decreases since the relevant demand is down, the investor and procuring entity shall reach an arrangement with the supplier to sign an addendum to change the quantity and value of the contract.

3. Decision-makers of procurement

Pursuant to Article 5 of Circular No. 58/2016/TT-BTC dated March 29, 2016 of the Ministry of Finance, Ministers, heads of ministerial-level agencies, heads of other agencies of central government may, on their own or delegate authority to other agencies to, decide the procurement for regulatory agencies within their scope of administration. The People’s Council of province shall delegate authority to other agencies to decide the procurement for regulatory agencies within their scope of administration. The heads of budget-estimate units may decide the procurement of assets, goods, services within the list of estimated items with the value and scope delegated by the competent authority; and decide to procure the list of estimated items not greater than 100 million dong within the given budget estimate authorized by the competent authority.

Based on the foregoing provisions, the ministries, local governments, and entities may delegate authority to budget-estimate units to make procurement. The heads of budget-estimate units may decide the procurement of assets, goods, services within the list of estimated items with the value and scope delegated by the competent authority; and decide to procure items in the package not greater than 100 million dong.

4. Procurement of locally produced items

Comply with Section I hereof or placing order, task assignment as specified in Decree No. 32/2019/ND-CP dated April 10, 2019 of the Government.

5. Publishing procurement information

The information during selection of preferred bidders (plan for selection of preferred bidders, invitation to bid, result of selection of preferred bidders, bid opening result via the online procurement network, etc.) shall be published in accordance with Circular No. 11/2019/TT-BKHDT dated December 16, 2019 of the Ministry of Planning and Investment.

All of the above are opinions of the Ministry of Planning and Investment in implementation of certain issues related to procurement for prevention and control of COVID-19 pandemic. Difficulties which may arise in connection with the implementation should be reported to the Ministry of Planning and Investment, the Ministry of Health and Ministry of Finance for further guidance./.