Circular No. 09/2020/TT-BKHDT regulating the detailed procurement documents for packages under the scope of the CPTPP

25/12/2020    65

The CPTPP and related documents come into force for Vietnam since January 14, 2019. To ensure the implementation of the CPTPP, the Government has issued Decree No. 95/2020/ND-CP dated August 24, 2020 guiding the implementation of procurement under the CPTPP (Decree No. 95/2020 / ND-CP). In order to guide Decree No. 95/2020/ND-CP, on November 27, 2020, the Ministry of Planning and Investment issued Circular No. 09/2020/TT-BKHDT regulating the detailed procurement documents for packages under the scope of the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (Circular 09/2020/TT-BKHDT).

Circular 09/TT-BKHDT regulates the detailed procurement documents to create favorable conditions for investors and bid solicitors in the process of preparations, ensuring full and serious compliance. commitments under the CPTPP Agreement; Ensuring consistency and synchronization when implementing Decree No. 95/2020/ND-CP; Ensure the transparency, feasibility, accessibility, effectiveness and efficiency of the legal system, effectively serving the development of the country in the period of industrialization, modernization and international integration. extensive.

Circular 09/2020/TT-BKHDT includes 8 Articles and 2 Appendices, specifying the application of the Bidding Form for Goods Procurement; bidder's eligibility; on the contractor selection process and procedures applicable to organizations and individuals participating in or related to the selection of contractors for the procurement of goods under the scope of regulation specified in this Circular.

The manufacturer's sale permit is specified in Article 4 of Circular 09/2020/TT-BKHDT as follows: for ordinary, common goods, available on the market, standardized and guaranteed. In accordance with the manufacturer's regulations, the contractor does not require the contractor to submit the License or Authorization for Sale of the manufacturer, the distributor, or Certificate of partnership or other documents of equivalent value. For complex and specific goods, it is necessary to confirm the manufacturer or supplier to ensure the feasibility of supplying the goods when the contractor wins the bid and should be attached to the responsibility of the manufacturer in to provide after-sales services such as installation, maintenance, training and other related services, a Bidding Documents may require a Bidder to provide a Sale Permit.

In case the bidder does not attach the Sale Permit as required in the bidding dossier, the bid of the bidder is still considered and evaluated to be considered for the bid-winning consideration. The bidder's failure to attach the Sale Permit as required in the bidding documents is not the reason for the bid's rejection. In case the bid winner wins the bid, the contractor must present the sale permit before signing the contract and take responsibility for the accuracy of the documents and information provided by them. In case the contractor cannot present the sale permit to sign the contract, it shall invite the contractor ranked next to negotiate the contract.

In case the contents of the sale permit do not fully satisfy the conditions required by the bidding dossier, the bid solicitor must request the contractor to clarify these contents in order to have sufficient information serving the awarding Change the contract, including allowing a contractor to replace or add information about the Seller's Permit.

In case manufacturers, distributors in the territory of Vietnam deliberately fail to provide the contractor with a Sale Permit without a plausible reason, fail to comply with the provisions of the law on trade and competition. Contractor must report to the Ministry of Industry and Trade for the purpose of creating an advantage or creating monopoly for another contractor.

Article 5 of Circular 09/2020/TT-BKHDT regulates the requirements for the supply of samples. Samples are not required for standardized, common, commercially available goods that have been standardized.

If the goods of a bidding package are specific or complicated, the investor or the bid solicitor cannot determine the specific shape and design of the goods, which need to be manufactured, individually or individually produced, yes Contractor may be requested to provide samples to prove product specifications. In case of requesting the contractor to supply sample goods, the request for approval of the bidding documents must clearly state the reason for the investor's consideration and decision. The investor and the bid solicitor must ensure that the request for sample goods does not lead to an increase in the cost of the bidding package, limit the participation of the contractor or to give an advantage to one or several contractors. unequal competition. If the bidding documents require the supply of sample goods, the contractor may submit additional samples after the deadline for bid closure.

Article 6 of Circular 09/2020/TT-BKHDT stipulates the requirements for mobilizing personnel to implement the bidding package, for the part of the work of goods supply, bidding documents are not required to mobilize human resources. key.

For common goods, available on the market, which do not require highly qualified personnel to perform the relevant services, no key personnel are required. In case the relevant services have specific and complicated elements that are required by knowledgeable and experienced personnel, requirements on mobilizing key personnel can be made to perform the tasks. this particular, complex. If it is required to mobilize key personnel, the statement for approving the bidding documents must clearly state the reasons for the investor's consideration and decision. The investor and the bid solicitor must ensure that the requirement to mobilize key personnel does not lead to limiting the participation of contractors or to give an advantage to one or several contractors that cause unequal competition. class.

If the bidding documents require the mobilization of key personnel, in the bid, the bidder must demonstrate its willingness to mobilize the proposed key personnel to participate in the implementation of the bid package. requirements of bidding documents. Key personnel may be on the payroll of the contractor or mobilized by the contractor. In case the key personnel proposed by the contractor do not meet the requirements of the bidding documents, the expert team or the bid solicitor should request the contractor to replace other personnel who meet the requirements within a suitable period of time to continuing to review and evaluate without immediately discarding bidders' bids. In all cases, the contractor must ensure that information on the profile and experience of key personnel is truthful.

Contract is specified in Article 7 of Circular 09/2020/TT-BKHDT. Type of contract applied mainly to bidding package for goods procurement is package contract. In case the goods are of particular nature, complexity, large scale and duration of contract performance is more than 18 months, the contract type based on adjusted unit price may be applied. When applying the type of contract with adjusted unit price, the bidding dossier must clearly specify the price adjustment formula; During the performance of the contract, in case there is any change in the unit price and it is necessary to adjust the contractual price, the contractor must prove the factors leading to such change in unit price.

Bidding documents must include the Contract Form and detail the terms and conditions of the contract for the contractor to serve as the basis for the bid and for the parties to serve as the basis for negotiation, finalization and signing of the contract.

The arbitrary termination of the contract specified in Section 29.3 General Conditions of the Contract in the Bidding Documents Form issued together with this Circular may only be effected with the permission of the competent person with a reasonable reason.

The contract signed between the investor and the contractor must comply with the Contract Form, the contractual conditions specified in the bidding documents and the amendments and supplements proposed by the contractor and approved by the investor in the process of negotiating and finalizing the contract but ensuring that it is not contrary to the provisions of the bidding law, the provisions of the Comprehensive and Progressive Agreement for Trans-Pacific Partnership and other relevant law provisions

In addition, Circular 09/2020/TT-BKHDT has 02 Appendices

Appendix 1: Form of the invitation to bid for goods procurement No. 01 (Form No. 01), applicable to open bidding packages according to the single-stage and one-envelope bidding procedure;

Appendix 2: Form of the invitation to bid for goods procurement No. 02 (Form 02) applicable to open bidding packages according to the method of single-stage and two-envelope selection of contractors.

Circular 09/2020 / TT-BKHDT takes effect from January 15, 2021. 

The Circular (in Vietnamese) is attached in the file below: