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DECISION

ON THE APPLICATION OF CONTRACTOR APPOINTMENT TO BID PACKAGES IN SPECIAL CASES CONSIDERED AND DECIDED BY THE PRIME MINISTER

Pursuant to Law on Organization of the Government dated December 25th 2001;

Pursuant to Law on Bidding No.61/2005/QH11 dated November 29th 2005;

Pursuant to Law No. 38/ 2009/QH12 dated June 19th 2009, amending and supplementing the laws related to investment in fundamental construction;

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

Pursuant to the Government’s Decree No. 68/2012/ND-CP dated September 12th 2012, amending and supplementing a number of articles of the Government’s Decree No. 85/ 2009/ND-CP dated October 15th 2009, guiding the Law on Bidding and the selection of contractors under the Law on Construction;

At the proposal of the Minister of Planning and Investment.

The Prime Minister issues the Decision on the application of contractor appointment to bid packages in special cases considered and decided by the Prime Minister.

Article 1. Scope of regulation and subjects of application

This Decision is applicable to the ministries, ministerial-level agencies, Governmental agencies, other central agencies, People’s Committees, state-owned economic corporations, state-owned general companies, related organizations and persons when deploying bid packages on the projects regulated by the Law on Bidding which satisfy the conditions specified in Articles 2 and 3 of this Decision.

Article 2. Special cases eligible for contractor appointment

The special cases that are considered and decided by the Prime Minister are specified in Point k Clause 2 Article 40 of Decree No. 85/2009/ND- CP, including:

1. Urgent bid packages for holding national important events which have been decided by the Prime Minister;

2. Urgent bid packages for protecting the sovereignty of the country, the frontier and islands.

3. Bid packages for preparing urgent projects which must be immediately implemented so as to attract and raise capital from foreign sponsors.

4. Urgent bid packages serving the preparation and construction of initial infrastructure aiming to meet the schedules of national energy development projects.

5. Urgent bid packages for directly providing mechanical products manufactured by domestic enterprises for national energy development projects.

6. Urgent bid packages for preventing traffic congestion and ensuring traffic safety in centrally run cities.

7. Bid packages considered urgent by competent persons, that it is impossible to organize bidding, and contractor appointment is more effective.

Article 3. Conditions for contractor appointment

Competent persons shall consider applying contractor appointment to bid packages specified in Article 2 of this Decision when all of the following conditions are satisfied:

1. There is an approved investment decision, except for bid packages on project preparation consultancy.

2. The capital for the bid package is clearly identified and sufficient for meeting the schedule; the use of capital from the state budget or government bond funds must comply with the Prime Minister's Directive No. 1792/CT-TTg dated October 15th 2011.

3. Contractor appointment procedure must be completed within 45 days, or 90 days if the scale of the bid package is large and complicated, from the date of on which the application is approve to the date on which the contract is signed.

4. There is an appraisal report made by an appraising agency or organization under Article 4 of this Decision. The bid packages specified in Clause 2 Article 2 of this Decision must be approved by competent defense or public security agencies.

Article 4. Submitting, appraising, and approving of bidding plans of bid packages eligible for contractor appointment

The Prime Minister shall assign competent persons (investment deciders) to examine and approve bidding plans of bid packages eligible for contractor appointment in the special cases considered and decided by the Prime Minister, who is completely responsible for the appointment of contractors for the bid packages specified in Article 2 of this Decision. The procedures for submitting, appraising, and approving the bidding plan of a bid package eligible for contractor appointment under this Decision:

1. Based on the application made by the investor for approving the bidding plan as prescribed in Clause 2 of this Article, an appraising agency shall make the appraisal report in accordance with the order and procedures specified in Article 11 and Clause 2 Article 12 of Decree No. 85/2009/ND-CP within the time limit prescribed in Clause 6 Article 31 of the Law on Bidding, then submit it to a competent person for consideration and decision.

2. Application for approval

Based on the urgency of the bid package, the investor shall make and submit the bidding plan of such bid package together with the bidding plans of other bid packages of the same project, or separately submit it for prior approval. An application for approving of the bidding plan of a bid package, to which contractor appointment is recommended, includes:

a/ A written request for approving the bidding plan of the bid package eligible for contractor appointment, specifying:

- The necessity of contractor appointment in special cases. For bid packages in Clause 7 Article 2 of this Decision, the reasons for not bidding, and the reasons why contractor appointment is more effective than bidding must be provided, including the socio-economic effects, and the time mark of the preparation and approval of the application, the appointment of contractors, the contract performance, and other factors of the bid package, for the purpose of ensuring the effectiveness of contractor appointment compared to public bidding;

- The figures, foundations, and enclosed documents proving that the bid package, to which contractor appointment is recommended, is conformable with the explanations above, eligible for contractor appointment in accordance with Article 2 of this Decision, and satisfies the conditions for contractor appointment prescribed in Article 3 of this Decision.

b/ Relevant legal documents:

- Decision to approve the project (except for the appointment of project preparation consultancy contractors);

- Decision approving the technical design and cost estimates (except for the appointment of technical design and cost estimate consultancy contractors);

- Decision on the allocation and distribution of investment capital;

- Other relevant documents.

3. Competent persons shall examine and approve bidding plans of bid packages eligible for contractor appointment in special cases based on the appraisal reports made by appraising agencies as prescribed in Clause 2, Article 12 of the Decree No. 85/2009/ ND-CP. The decision to approve the bidding plan, the written request for approving the bidding plan, and other relevant documents specified in Clause 2 of this Article are the bases of inspections.

Article 5. The implementation

1. Investors shall approve the results of contractor appointment for bid packages in special cases regulated by this Decision according to Clause 19 Article 2 of the Law on the amendment and supplementation of the Laws on investment in fundamental construction, and Article 41 of the Decree No. 85/2009/ND-CP.

2. The information on bidding plans and contractor appointment results must be published on the Vietnam Public Procurement Review Journal within 7 days from the date on which the documents are signed. The bid packages specified in Clause 7 Article 2 of this Decision. For the written registration of the bidding plans which is sent to Vietnam Public Procurement Review Journal must specify the reasons and necessity of contractor appointment in special cases.

Investors and bid solicitators that fail to publish information on bidding plans and contractor appointment results shall receive a warning according to Article 75 of the Law on Bidding. Those who receive 03 warnings ore more shall be banned from bidding activities for 06 months. 03 more months shall be added for each warned violation, but the ban duration must not exceed 03 years as prescribed in Clause 4 Article 65 of the Decree No. 85/2009/ND-CP.

3. While selecting contractors, allocating funds and signing and performing contracts for bid packages eligible for contractor appointment in special cases, if the urgency, progress, and quality of these bid packages are not consistent with the investors' explanation, appraisal reports of appraising agencies, and approval decisions of competent persons, investors and competent persons shall take responsibility before law for their decisions.

4. Investors shall assure that the selection of contractors and performance of contracts of the bid packages regulated by this Decision in accordance with the Law on Bidding, and take responsibility before law for their decisions.

Article 6. Effect

1. This Decision takes effect on January 1st 2013.

2. Any difficulty arising in the course of implementation should be reported to the Ministry of Planning and Investment, the Ministry of Planning and Investment shall then summarize them and suggest necessary amendments and supplementations to the Prime Minister./.

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