Thông tư 10/2015/TT-BKHDT

CIRCULAR

GUIDELINES FOR PLANNING CONTRACTOR SELECTION

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/NĐ-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 planning contractor selection.

Article 1. Scope

This Circular provides specific guidance on making, submitting, appraising, approving contractor selection plans with regard to the procurements and projects regulated by the Law on Bidding No. 43/2013/QH13, except for drug procurement prescribed in Clause 1 Article 1 of the Law on Bidding.

Article 2. Regulated entities

This Circular applies to agencies, organizations participating in making, submitting, appraising, approving contractor selection plans with regard to the procurements and projects mentioned in Article 1 of this Circular, and relevant entities.

Article 3. Circular application

1. In case an international agreement contains regulations on contractor selection procedures, Clause 3 and Clause 4 Article 3 of the Law on Bidding shall apply. Procedures for submitting, appraising, and approving the contractor selection plan shall comply with this Circular.

2. In case an international agreement does not contain regulations on contractor selection procedures, the contractor selection plan shall be made, submitted, appraised, and approved in accordance with this Circular.

3. For procurements executed before a decision on project approval, the following adjustments must be made when applying this Circular:

a) If the investor is determined, the phrase “chủ đầu tư” will be replaced with “Đơn vị thuộc chủ đầu tư”; “người có thẩm quyền” with “người đứng đầu chủ đầu tư”; “Quyết định phê duyệt dự án bằng” with “Quyết định phê duyệt tương ứng của người đứng đầu chủ đầu tư";

b) If the investor is not determined, the phrase “chủ đầu tư” will be replaced with “Đơn vị được giao nhiệm vụ chuẩn bị dự án”; “người có thẩm quyền” with “người đứng đầu đơn vị được giao nhiệm vụ chuẩn bị dự án”; “Quyết định phê duyệt dự án” with “Quyết định phê duyệt tương ứng của người đứng đầu đơn vị được giao nhiệm vụ chuẩn bị dự án”

4. With regard to procurements funded by state budget prescribed in Point d Clause 1 Article 1 of the Law on Bidding, this Circular must be applied when making, submitting, appraising, and approving contractor selection plans, except for the contents prescribed by the Circular on use of state budget for regular operation promulgated by the Ministry of Finance. When applying this Circular, the phrase “chủ đầu tư” will be replaced with “bên mời thầu”; “dự án” with “dự toán mua sắm”

Article 4. Application for contractor selection plan approval

1. The rules for making the contractor selection plan are specified in Article 33 of the Law on Bidding.

2. The basis for making the contractor selection plan is specified in Article 34 of the Law on Bidding.

3. The application for contractor selection plan approval is made according to Form 1 enclosed herewith, which contains:

a) Completed tasks including tasks related to preparation of project and procurements to be completed first with corresponding values and legal basis;

b) Tasks that do not apply any contractor selection method include: operation of project management board, provision of compensation for land clearance, loan interest payment, tasks performed by the investor including making, appraising the request for expression of interest, pre-qualification documents, bidding documents, request for proposals; assessing expressions of interest, pre-qualification applications , bid-envelopes, proposals; appraising the contractor selection result, and other tasks that do not apply contractor selection with corresponding values;

c) The tasks that require the contractor selection must specify the quantity of procurements, content of each procurement, according to Article 5 of this Circular, and explanation for such contents. This part must specify the basis for dividing the project into smaller procurements. It is prohibited to divide the project into procurements against regulations of the Law on Bidding for the purpose of direct contracting or restricting participation of bidders. Provision of explanation for procurements competitive bidding and all-inclusive contracts is not required;

d) If there are tasks that do not require contractor selection (if any), contents and values of such tasks must be specified.

dd) Total value of the tasks mentioned in Point a, Point b, Point c, and Point d of this Clause. The total value must not exceed the approved total investment in the project;

e) Request.

Article 5. Tasks that require contractor selection

Contents of the tasks that require contractor selection include the tasks and value of each procurement according to Article 35 of the Law on Bidding. To be specific:

1. Procurement name:

The procurement must reflect its content (construction, installation, procurement of goods, consulting services, non-consulting services, mixed contents) and scope according to the decision on project approval. If the procurement is divided into smaller parts, the name of each part must reflect its basic content.

2. Procurement price:

The procurement price is determined on the basis of total investment in the project. If a cost estimate has been approved before the contractor selection plan is made, the cost estimate shall be the basis for determination of the procurement price. The procurement price must be sufficient to cover the expenses of the procurement including cost contingency (against inflation, additional works, and other temporary amounts (if any)), fees, charges, and taxes. If the contract duration is short without risks or inflation, cost contingency is zero. Cost contingency shall be determined by the investor depending on the characteristics of the procurement within the limits prescribed by law. The procurement price shall be updated 28 days before the bid opening date if necessary.

- With regard to the procurement of consultancy services for making the pre-feasibility study report or feasibility study report, the procurement price is determined according to information about average price according to statistics of completed projects over a certain period of time; total investment shall be determined according to investment rates and preliminary total investment;

- If the procurement is divided into smaller parts, the value of each part must be estimated.

3. Each procurement must have specific sources of capital or method of capital provision and disbursement time in order to pay the contractors; if the procurement is funded by ODA or concessional loans, the sponsors’ names, ratio of capital sources including grant capital and counterpart capital must be specified.

4. Contractor selection methods:

Each procurement must have a specific method of contractor selection: domestic or international contractor selection, whether or not short-listing, online contractor selection is applied according to regulations of law on bidding. Explanation for competitive bidding is not required; Explanation for international bidding is required; To be specific:

a) Competitive bidding is applied to procurements regulated by the Law on Bidding, except for the cases mentioned in Point b, Point c, Point d, Point dd, Point e, Point g, and Point h of this Clause;

b) Selective bidding is applied to procurements with high or special technical requirements that are met by few contractors;

c) Direct contracting is applied in the cases mentioned in Clause 1 Article 22 of the Law on Bidding and Article 54 of Decree No. 63/2014/NĐ-CP provided requirements in Clause 2 Article 22 of the Law on Bidding are satisfied;

d) Competitive offering is applied according to Article 23 of the Law on Bidding and Article 57 of Decree No. 63/2014/NĐ-CP;

dd) Direct purchasing is applied according to Article 24 of the Law on Bidding. In this case, the investor must explain its advantages over other methods of contractor selection;

e) Self-performance is applied according to Article 25 of the Law on Bidding. In this case, the investor must explain its advantages over other methods of contractor selection;

g) Contractor selection in special cases is applied if the procurement has special requirements that cannot apply the contractor selection methods mentioned in Point a, Point b, Point c, Point d, Point dd, and Point e of this Clause. In this case, the person competent shall approve the contractor selection after the Prime Minister issues a decision on a contractor selection method in the special case according to Article 26 of the Law on Bidding;

h) Community participation shall be applied according to Article 27 of the Law on Bidding.

Contractor selection methods other than competitive bidding must not be applied without satisfying all conditions prescribed by the Law on Bidding.

5. Contractor selection processes:

a) One-envelop process is applied in the following cases:

- Competitive bidding, selective bidding are applied to procurements of non-consulting services, goods, construction and installation, small-scale mixed procurements; “single-stage two-envelop” process may be applied if necessary;

- Normal and abridged competitive offering is applied to procurements of non-consulting services, goods, construction and installation;

- Direct contracting is applied to procurements of consulting services, non-consulting services, goods, installation, mixed procurements; this part will be excluded if abridged direct contracting process is applied;

- Direct purchasing is applied to procurements of goods.

b) Single-stage two-envelop process is applied to competitive bidding and selective bidding with regard to procurements of consulting services, non-consulting services, goods, construction, and mixed procurements;

c) Two-stage two-envelop process is applied to competitive bidding and selective bidding with regard to large-scale, complicated procurements of goods, construction and installation, and mixed procurements;

d) Two-stage two-envelop process is applied to competitive bidding and selective bidding with regard to procurements of goods, construction and installation, and mixed procurements that involve new, complicated, special technologies;

6. Time for stating contractor selection

The contractor selection process shall begin when bidding documents, request for proposals are issued. In case of competitive bidding that applies short-listing, the contractor selection process shall begin when the request for expression of interest, pre-qualification documents is issued.

7. Types of contract:

Depending on the scale, characteristics of each procurement, the investor shall decide on the type of contract as the basis for making the bidding documents, request for expression of interest, bidding documents, or request for proposals, and conclude the contract. Each procurement may be done under one or multiple contracts; each contract may apply one or several types of contracts prescribed in Point a through d of this Clause. If multiple types of contract are applied, each type and its corresponding works must be specified. In case of all-inclusive contract, the investor is not required to provide explanation.

a) All-inclusive contract is a basic type of contract. All-inclusive contracts must be used for procurements of consulting services, non-consulting services, construction and installation and mixed procurements on a small scale.

All-inclusive contracts shall primarily be used for procurements of goods.

b) Contracts with fixed prices shall be applied to procurements of which prices for every work remain unchanged throughout the contract duration.

c) Contracts with variable prices shall be applied to procurements that do not have accurate quantity or volume, and prices are likely to vary during the contract duration.

If goods are special, complicated, and the contract duration exceeds 18 months, variable prices may be applied.

d) Fixed term contracts are applied to procurements of consulting services.

8. Contract term:

The contact terms begins from the effective date of the contract until the parties fulfill their contractual obligations, except for warranty period (if any). The contract term must be appropriate for the project schedule. If the procurement is divided into smaller parts, the duration of each part must be specified.

Article 6. Submitting and approving contractor selection plan

1. The investor shall submit the contractor selection plan to the competent persons for consideration and approval.

2. The competent persons shall appoint an organization to appraise the contractor selection plan.

3. Appraisal of the contractor selection plan involves inspection, evaluation, and provision of opinions according to regulations of law on bidding and relevant regulations of law about:

a) Division of the project into procurements:

The project is divided into procurements according to the technical characteristics, procedures, consistency of the project, and rationality of the procurement scale.

b) Legal basis for making the contractor selection plan:

Legal basis for making the contractor selection plan and notes (if any).

c) Contents of the application for contractor selection plan approval:

- The contents mentioned in Clause 3 Article 4 of this Circular, conformity with regulations of law on bidding and relevant regulations of law, requirements of the project, notes (if any) with regard to the tasks that require contractor selection including the contents in Article 5 of this Circular;

- Conformity of total value of completed tasks, tasks that do not apply contractor selection method, tasks that require contractor selection, and tasks that do not require contractor selection compared to total investment of the project.

d) Bidding supervision:

If the bidding process must be supervised, the applicant shall request the competent person to appoint a person or unit mentioned in Clause 2 Article 7 of this Circular to supervise the bidding process.

4. The appraising organization shall give general remarks about the contractor selection plan, express agreement or disagreement with the investor’s contractor selection plan, request the competent person approve the contractor selection plan if it is accepted, or provide explanation and propose solutions to the competent person of the contractor selection plan is not accepted.

5. The appraising organization shall make an appraisal report according to Form No. 2 enclosed herewith and submit it to the competent person for approval.

6. Individuals participating in the appraisal must have suitable capacity, experience, foreign language skills, and bidding qualifications.

7. The appraisal report shall be sent to the competent person within 20 days from the day on which the appraising organization receives sufficient documents.

8. In case of direct contracting prescribed in Point a Clause 1 Article 22 of the Law on Bidding, unless the procurement is necessary for protection of state secrets, within 07 working days from the day on which the investor or supervisory authority of the procurement selects a qualified contractor, the investor must submit the contractor selection plan to the competent person for approval. In this case, appraisal of the plan is not required.

Article 7. Approving contractor selection plan

1. According to the appraisal report, the competent person shall issue a written approval for the contractor selection plan, which is the basis for contractor selection as soon as or after the project is approved.

The decision on approval for contractor selection plan is made according to form No. 3 enclosed herewith.

2. Bidding supervision:

a) In necessary cases at the request of the appraising organization, the competent person shall decide whether to supervise the bidding process if the investor that regularly receives enquiries or complaints, the procurement applies direct contracting; the procurement has a high value, high or special technical requirements. If supervision is requested, the decision on approval for the contractor selection plan must specify whether the supervision is a task that requires contractor selection, the procurements that need supervising, and supervising entities;

b) The competent person shall appoint qualified individuals or units to supervise the investor’s performance during the contractor selection process to ensure conformity with regulations of law on bidding.

3. The contractor selection plan shall be approved within 05 working days from the day on which the appraisal report is received.

Article 8. Posting the contractor selection plan

1. The procuring entity has the responsibility to post the approved contractor selection plan to national bidding network within 07 working days from the day on which it is issued. If the investor has not established or selected the procuring entity, the investor shall post the plan.

2. Disclosure of information about projects, procurements classified as state secrets shall comply with regulations of law on protection of state secrets.

Article 9. Supplementary contractor selection plan

1. If the approved contractor selection plan has to be revised, only the revisions are subject to approval. The supplementary contractor selection plan must be posted before the bid closing time, except for the case in Clause 2 and Clause 8 Article 117 of Decree No. 63/2014/NĐ-CP

2. With regards to the tasks that initially do not require contractor selection and then require contractor selection, only such tasks are subject to approval.

Article 10. Transition clauses

1. The effect of contractor selection plans that have been approved before the effective date of this Circular shall remain unchanged. In case a contractor selection plan needs to be revised after the effective date of this Circular, the regulations of this Circular shall apply to the revisions.

2. Contractor selection plans that are being formulated, appraised but not approved when this Circular comes into force, regulations of this Circular shall apply to the process of formulation, appraisal, and approval of such plans.

Article 11. Implementation

1. This Circular comes into force from December 10, 2015 and replaces Circular No. 02/2009/TT-BKH dated February 17, 2009 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./.

APPENDIX

(enclosed with Circular No. 10/2015/TT-BKHĐT dated October 26, 2015)

1. Form 1. Application for contractor selection plan approval.

2. Form 2. Report on appraisal of contractor selection plan.

3. Form 3. Decision on approval for contractor selection plan.

Form 1. Application for contractor selection plan approval

APPLICATION FOR CONTRACTOR SELECTION PLAN APPROVAL

Project: [Name of the project]

To: [Name of the competent person]

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 [number, date, and content of documents being legal basis for making the contractor selection plan]:

- Decision on project approval or investment registration certificate and relevant documents;

- Decision on design, cost estimate approval (if any);

- Decision on capital provision;

- International agreements (if the project is funded by ODA or concessional loans);

- Relevant legislative documents.

 [Name of the investor] hereby requests [name of the competent person] to consider approving the contractor selection plan with the following contents:

I. Brief description of the project

General information about the project:

- Name of the project;

- Total investment;

- Name of the investor;

- Capital sources;

- Project duration;

- Location and scale of the project;

- Other information (if any).

II. Task assignment

Table 1

Notes:

 (1) Brief description of completed tasks/procurements

 (2) Name of the unit in charge.

 (3) Value of the tasks and currency.

 (4) Name of the written approval e.g. Decision to approval the contractor selection result, decision on task assignment, etc.

III. Tasks applying contractor selection methods

Table 2

Notes:

 (1) Brief description of the tasks, not including the tasks enumerated in Table 1.

 (2) Name of the unit in charge (if any).

 (3) Value of the tasks and currency.

IV. Tasks that require contractor selection

1. Tasks that require contractor selection:

 [Table 3 shall be completed according to instructions in Article 5 of this Circular].

Table 3

2. Explanation for the contractor selection plan:

a) Basis for division of the project into procurements: [according to the project contents, characteristics, chronological order, and the following principles):

+ Ensure technical and technological consistency of the project; do not divide the project into too small procurements that will make the project loses its technical and technological consistency;

+ Stick to the project schedule;

+ Ensure a reasonable scale (appropriate for the project condition,  capacity of contractors, and development of the domestic market, etc.);

It is prohibited to divide the project into procurements against regulations of law on bidding for the purpose of direct contracting or restricting participation of bidders.

b) Procurement prices;

c) Capital sources;

d) Contractor selection methods and processes;

dd) Beginning time of contractor selection;

e) Types of contract;

g) Contract term.

V. Tasks that do not require contractor selection (if any)

Table 4

VI. Total value of tasks

Table 5

VII. Request

[Name of the investor] hereby requests [name of the competent person] to consider approving the plan for selection of contractors for [name of the project].

APPENDIX TO APPLICATION

 (Enclosed with Application No. ____ dated ____)

Enclosures

Form 2. Report on appraisal of contractor selection plan

REPORT ON APPRAISAL OF CONTRACTOR SELECTION PLAN
OF [NAME OF THE PROJECT]

To:____[name of the competent person]

- 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 [other documents depending on the characteristics and requirements of the project];

- Pursuant to ___ [document about functions, tasks, and entitlements of the appraising organization];

- In consideration of the application of [name of the organization in charge of submitting the contractor selection plan] for approval for the contractor selection plan and relevant documents, [name of the appraising organization] appraised the contractor selection plan of [name of the project] from [the day on which sufficient documents are received] to [the day on which the appraisal report is available], and reports the appraisal result as follows:

I. GENERAL INFORMATION

1. Brief description of the project:

a) Name of the project;

b) Total investment;

c) Capital sources;

d) Name of the investor;

dd) Project duration;

e) Location and scale of the project;

g) Other information (if any).

2. Summary of the application for contractor selection plan approval:

a) Total value of completed tasks:

b) Total value of unfinished tasks not applying any contractor selection method:

c) Total value of tasks that require contractor selection:

d) Total value of tasks that do not require contractor selection (if any):

dd) Total value of all tasks: [total value of a, b, c, and d]

e) Total investment in the project:

3. Appraisal process;

 [whether the appraising organization works in groups or individually during the appraising process, and what to do when one or some members do not concur with the majority of member]

III. APPRAISAL RESULT

1. Legal basis for making the contractor selection plan:

a) Result of legal basis inspection:

Table 1

Notes:

- Write names, numbers, approval dates of the documents in column (1).

- Mark “X” in column (2) if the document in column (1) is received by the appraising organization.

- Mark “X” in column (3) if the document in column (1) is not received by the appraising organization (after requesting additional documents).

b) Opinion about legal basis: In consideration of the documents submitted by the investor and the result in Table 1, the appraising organization offers its opinion about the legal basis of the contractor selection plan and recommendations (if any)].

2. Division of the project into procurements:

 [Inspect and offer opinions about division of the project into procurements according to the technical characteristics, procedures, consistency of the project, and rationality of the procurement scale]

3. Content of the application for contractor selection plan approval:

a) Tasks not included in contractor selection plan:

- Completed tasks: [inspect and offer opinion about conformity of completed tasks with the approved contractor selection plan];

- Tasks not applying any contractor selection method [inspect and offer opinions about these tasks];

- Tasks that do not require contractor selection (if any): [inspect and offer opinion about these tasks];

b) Tasks that require contractor selection:

Table 2

Notes:

- Mark “X” in column (2) if the content in column (1) is conformable with regulations of law on bidding, relevant regulations of law, or appropriate for requirements of the project.

- Mark “X” in column (3) if the content in column (1) is not conformable with regulations of law on bidding, relevant regulations of law, or inappropriate for requirements of the project. In this case, it is necessary to specify the reasons or necessary revisions or supplementations.

- Opinions about the contractor selection plan: [according to documents submitted by the organization responsible for submitting the contractor selection plan and the result in Table 2, the appraising organization offers its opinion about the contractor selection plan regulations of law on bidding, relevant regulations of law, requirements of the projects, and other requirements (if any).

This part shall describe the inconformity or in inappropriateness of the contractor selection plan and specify necessary revisions and supplementation to ensure observance of regulations of law on bidding. The contents that are not conformable or not appropriate must be specified.

c) Opinion about total value of the tasks: [whether the total value of completed tasks, unfinished tasks that do not apply any contractor selection method, tasks that require contractor selection; tasks that do not require contractor selection, and tasks that do not require contractor selection is equal to the total investment of the project, and necessary revisions].

IV. REMARKS AND RECOMMENDATIONS

1. Remarks about the contractor selection plan:

The appraising organization shall give general remarks about the contractor selection plan, express agreement or disagreement with the investor’s contractor selection plan, express its agreement or disagreement with the investor’s proposal of the contractor selection plan, and provide explanation if disagree.

Dissenting opinions of members of the appraising organization must be specified in this part.

In case of direct contracting, procurements having high values or high technical requirements, and other particular cases, the appraising organization shall offer opinions about appointing a person to supervise bidding process according to Article 126 of Decree No. 63/2014/NĐ-CP

2. Request

a) If the contractor selection plan is conformable with regulations of law on bidding, relevant regulations of law, and satisfy requirements of the project, the appraising organization shall request the competent persons to approve the contractor selection plan as follows:

In consideration of the application of [name of the investor] for approval for the contractor selection plan the above appraisal result, [name of the appraising organization] hereby requests [name of the competent person] to:

- Approve the contractor selection plan of [name of the project]

- Appoint an individual or unit to supervise the bidding of [name of procurements] to ensure conformity with regulations of law on bidding[1].

b) If the appraising organization does not agree with the investor, the appraising organization shall propose solutions to the competent person for consideration.

APPENDIX TO APPRAISAL REPORT

 (Enclosed with Appraisal report No. ____ dated ____)

ENCLOSURES

Form 3. Decision on approval for contractor selection plan.

DECISION ON APPROVAL FOR CONTRACTOR SELECTION PLAN.

Of [Name of the project]

 [NAME OF THE COMPETENT PERSON]

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 [other documents depending on the characteristics and requirements of the project];

In consideration of report dated _____ of [name of the appraising organization] on appraisal of contractor selection plan of [name of the project];

At the request of [name of the investor] in application No. ___ dated ___ for approval for contractor selection plan of [name of the project],

DECIDES:

Article 1. Approve the contractor selection plan of [name of the project]. The specific contents are provided in the Appendix enclosed herewith[2].

Article 2. [Name of the investor] is responsible for organizing the contractor selection according to the approved plan in accordance with effective regulations.

 [Name of the supervising entity] is responsible for supervising the bidding process according to the Appendix enclosed herewith [3].

Article 3. This decision comes into force from the day on which it is signed. [Name of the head of the supervisory authority] is responsible for the implementation of this Decision.

APPENDIX

 [Name of the project]

 (enclosed with Decision No. ___ dated ___ )

[1] Removed if the appraising organization does not require supervision.

[2] The Appendix must include the contents in Article 5 of this Circular. If the contractor selection plan has only 01 procurement, its content may be written in the Decision on approval for contractor selection plan instead of the Appendix.

[3] Removed if the contractor selection plan does not require supervision of the bidding process.

[4] Write full name, address, phone number, fax number of the entity appointed to supervise the bidding process. Remove this column if supervision is not required.