Thông tư 09/2020/TT-BKHĐT hướng dẫn về lập hồ sơ mời thầu mua sắm hàng hóa đối với gói thầu thuộc phạm vi điều chỉnh của Hiệp định Đối tác Toàn diện và Tiến bộ xuyên Thái Bình Dương do Bộ Kế hoạch và Đầu tư ban hành

CIRCULAR

ON GUIDELINES FOR PREPARATION OF BIDDING DOCUMENTS FOR PROCUREMENT OF GOODS UNDER COMPREHENSIVE AND PROGRESSIVE AGREEMENT FOR TRANS-PACIFIC PARTNERSHIP

Pursuant to the Law on Public Procurement dated November 26, 2013;

Pursuant to Resolution No. 72/2018/QH14 dated November 12, 2018 of the National Assembly on ratification of Comprehensive and Progressive Agreement for Trans-Pacific Partnership and relevant documents;

Pursuant to the Government’s Decree No. 95/2020/ND-CP dated August 24, 2020 on guidelines for procurement under Comprehensive and Progressive Agreement for Trans-Pacific Partnership;

Pursuant to the Government's Decree No. 86/2017/ND-CP dated July 25, 2017 defining the functions, tasks, entitlements and organizational structure of the Ministry of Planning and Investment;

At the request of Director of Public Procurement Agency;

The Minister of Planning and Investment promulgates a Circular on guidelines for preparation of bidding documents for procurement of goods under Comprehensive and Progressive Agreement for Trans-Pacific Partnership (hereinafter referred to as CPTPP).

Article 1. Scope

This Circular set forth preparation of bidding documents for procurement of goods under Article 1 of the Government’s Decree No. 95/2020/ND-CP dated August 24, 2020 on guidelines for procurement of goods under CPTPP(hereinafter referred to as Decree No. 95/2020/ND-CP).

Article 2. Regulated entities

This Circular applies to organizations and individuals engaging in or involving in the selection of Bidders of procurement of goods under scope of regulation prescribed in Article 1 hereof.

Article 3. Application of form of bidding documents for procurements of goods

1. Application of form of bidding documents:

a) Form of bidding documents for procurement of goods No. 01 (Form No. 01) applicable to open tendering packages under single-stage and one-envelope bidding procedure;

b) Form of bidding documents for procurement of goods No. 02 (Form No. 02) applicable to open tendering packages under single-stage and two-envelope bidding procedure.

2. Upon preparation, appraisal and approval for bidding documents for procurement of goods, the relevant entities must:

a) Establish suitable requirements based on the scope and nature of each package and the rules of competition, fairness, transparency and economic efficiency;

b) Establish technical specifications based on the usages of the good (characteristics, specifications, etc.) which ensures compliance with functions and actual need for use as well as the market conditions;

c) In case of intra-regional bidding, the bidding documents must specify that the intra-regional bidder may only offer goods originating in the Parties that make a bid. The Party is a country that meets the following requirements:

- It has signed the CPTPP on March 8, 2018;

- At the time of approval for the bidding documents, CPTPP is effective in that country;

d) Refrain from establishing conditions intended to limit the participation of the bidders or make an advantage for one or certain bidders for unfair competition, such as describing specific make and origin of the good, including naming the a country, group of countries, or territory as a discriminatory practice, except for intra-regional bidding as prescribed in Articles 4 and 15 of Decree No. 95/2020/ND-CP and point c of this clause; refrain from establishing a requirement that the bidder has performed one or multiple contracts with a procuring entity of a country, territory or the bidder must have experience in supply of the good or service in the territory of the country or territory as a criterion for disqualification of the bidder.

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.

dd) If there is any modification to the form of bidding documents, the entities in charge of preparation, appraisal, and approval for the bidding documents must ensure that modification makes the form of bidding documents more appropriate, logical and well organized and not contravention with CPTPP. The request for approval for bidding documents must specify the modifications compared to original form of bidding documents and reasons thereof for the investor to consider.

3. Regarding a package of procurement of goods applying limited tendering, for reference purpose, the form of bidding documents may be modified.

Article 4. Sale permit of producers

1. Regarding common and available-on-market goods which are standardized and under warranty as recommended by the producer, the bidder is not required to submit a sale permit or sale authorization issued by the producer or a certification of joint venture relationship or any other equivalent documents (hereinafter referred to as sale permit).

2. Regarding complex good that needs the confirmation of the producer or supplier to ensure the feasibility in supply of the good in a case where the bidder wins the bid and for which the producer have liability in terms of provision of after-sale services such as warranty, maintenance, repair, provision of spare parts, and other related services, the bidding documents may require the bidder to submit a sale permit. 

If the bidder fails to enclose a sale permit together with the bid, the bid may still be considered further for contract award. The failure to enclose a sale permit as required by the bidding documents does not constitute a ground for disqualification of the bidder. If the bidder wins the bid, the bidder must present the sale permit before signing the contract and be liable for the accuracy of any document or information provided. If the bidder fails to present a sale permit to sign the contract, the next ranked bidder shall be invited to enter into negotiation of the contract.

3. If the content of the sale permit does not meet the requirements in the bidding documents, the procuring entity must require the bidder to clarify it as the ground for the contract award and also authorize the bidder to replace or supplement information in the sale permit.

4. If any producer or distributor in Vietnam’s territory knowingly refuses to provide a sale permit the a bidder without justifiable reasons and not in accordance with regulations of law on trade and competition, which brings advantage or monopoly to another bidder, the former bidder may report it to the Ministry of Industry and Trade for further actions.

Article 5. Requirement for supply of samples

1.  Regarding common and available-on-market goods which are standardized, the bidder is not required to supply samples.

2. Regarding particular or complex good that the investor or procuring entity may not identify the shape, model of the good and it needs individual and separate manufacture, the bidders may be required to supply samples to prove the specifications of the good. If the bidders are required to supply samples, the request for approval for bidding documents must specify reasons for the investor to consider. The investor and procuring entity must ensure the supply of samples will not cause an increase in the costs of the package, limit the participation of the bidders or bring an advantage to one or certain bidders, which causes an unfair competition.

3. If the bidding documents require supply of samples, the bidder may supply samples after the deadline for submission of the bids.

Article 6. Requirement for mobilization of personnel for performance of package

1. Regarding the work related to supply of the good, the bidding documents may not require mobilization of key personnel. 

2. Regarding common and available-on-market goods which do not require personnel performing related services to be highly-skilled, the bidding documents may not require key personnel. If the related services are particular and complex that need personnel who are highly-skilled and -experienced, the bidding documents may require mobilization of key personnel. If so, the request for approval for bidding documents must specify reasons for the investor to consider. The investor and procuring entity must ensure the mobilization of key personnel will not cause an increase in the costs of the package, limit the participation of the bidders or bring an advantage to one or certain bidders, which causes an unfair competition.

3. If the bidding documents require mobilization of key personnel, in the bid, the bidder must prove their capacity to mobilize key personnel proposed to perform the package to meet the requirements of the bidding documents. The key personnel may be on the payroll of the bidder or mobilized by the bidder. If the key personnel proposed by the bidder have not met the requirements of the bidding documents; the expert group or procuring entity needs to require the bidder to replace another person within a given time for further consideration without immediate disqualification of the bid. In any circumstance, the bidder must undertake that details about resumes and experience of the key personnel are true.

Article 7. Contract

1. The contract primarily applied to the procurement of goods is a lump sum contract. If the good is particular or complex and large-scale and the time for performance of the contract is more than 18 months, the adjustable unit price contract may apply. In a case where an adjustable unit price contract applies, the bidding documents must specify the price escalation formula; during the performance of the contract, if there is a change in unit price which needs an adjustment, the bidder must prove factors which lead to such change.

2. The bidding documents shall consist of contract agreement form and terms and conditions of the contract as the basis for bid proposal and negotiation, finalization, conclusion and execution of contract.

3. The arbitrary termination of contract specified in Section 29.3 General Conditions of Contract in the form of bidding documents issued herewith may be done with the authorization of the competent person with good reasons.

4. The contract concluded between the investor and the contractor must be made in accordance with contract agreement form and conditions of contract in the bidding documents, contract amendments proposed by the investor and approved by the investor in the progress of negotiation and finalization of contract in accordance with law on bidding, CPTPP and relevant law provisions.

Article 8. Implementation

1. This Circular comes into force from January 15, 2021.

2. Regarding packages under scope of regulation of CPTPP in which the bids have been opened before effective date of this Circular, the bid evaluation and consideration for contract award shall be done in accordance with the bidding documents and not in contravention with CPTPP.

3. Regarding packages under scope of regulation of CPTPP in which the bidding documents have been approved and issued before effective date of this Circular but the deadline for submission of bids after the effective date of this Circular and the deadline has not reached, any information inappropriate or in contravention with the forms of bidding documents issued herewith must be modified. If the bidding documents are modified after issued, the investor and procuring entity must give the bidders a reasonable given time for the bidders to prepare their bids.

4. Regarding packages under scope of regulation of CPTPP in which the bidding documents have been approved before effective date of this Circular but the bidding documents have not been issued, these bidding documents shall be adjusted in order to conform to forms issued herewith.

5. The entities listed in the Appendices of Decree No. 95/2020/ND-CP and relevant entities shall implement this Circular. Difficulties that arise during the implementation of this Circular should be reported to the Ministry of Planning and Investment for consideration./.

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