Decree No. 09/2022/ND-CP dated January 12, 2022 on amendments to Government’s Decree No. 95/2020/ND-CP providing guidance on bidding for procurement under the comprehensive and progressive agreement for trans-pacific partnership as the basis for bidding for procurement under the comprehensive and........

DECREE

AMENDMENTS TO GOVERNMENT’S DECREE NO. 95/2020/ND-CP DATED AUGUST 24, 2020 PROVIDING GUIDANCE ON BIDDING FOR PROCUREMENT UNDER THE COMPREHENSIVE AND PROGRESSIVE AGREEMENT FOR TRANS-PACIFIC PARTNERSHIP AS THE BASIS FOR BIDDING FOR PROCUREMENT UNDER THE COMPREHENSIVE AND PROGRESSIVE AGREEMENT FOR TRANS-PACIFIC PARTNERSHIP, THE FREE TRADE AGREEMENT BETWEEN THE SOCIALIST REPUBLIC OF VIETNAM AND THE EUROPEAN UNION, AND THE FREE TRADE AGREEMENT BETWEEN VIETNAM AND THE UNITED KINGDOM OF GREAT BRITAIN AND NORTHERN IRELAND

Pursuant to the Law on Government Organization dated June 19, 2015; the Law on Amendments to the Law on Government Organization and the Law on Local Government Organization dated November 22, 2019;

Pursuant to the Law on International Treaties dated April 09, 2016;

Pursuant to the Law on Bidding dated November 26, 2013;

Pursuant to the Resolution No. 102/2020/QH14 dated June 08, 2020 of the National Assembly giving approval for the Free Trade Agreement between the Socialist Republic of Vietnam and the European Union;

For the purposes of the Free Trade Agreement between the Socialist Republic of Vietnam and the European Union which comes into force from August 01, 2020, and the Free Trade Agreement between Vietnam and the United Kingdom of Great Britain and Northern Ireland which comes into force from May 01, 2021;

At the request of the Minister of Planning and Investment;

The Government promulgates a Decree providing amendments to the Government’s Decree No. 95/2020/ND-CP dated August 24, 2020 providing guidance on bidding for procurement under the Comprehensive and Progressive Agreement for Trans-Pacific Partnership as the basis for bidding for procurement under the Comprehensive and Progressive Agreement for Trans-Pacific Partnership, the Free Trade Agreement between the Socialist Republic of Vietnam and the European Union, and the Free Trade Agreement between Vietnam and the United Kingdom of Great Britain and Northern Ireland.

Article 1. Amendments to the Government’s Decree No. 95/2020/ND-CP dated August 24, 2020

1. Some Points and Clauses of Article 1 are amended as follows:

a) Clause 1 is amended as follows:

 “1. This Decree deals with the government procurement for supply of goods and consulting, non-consulting and construction services within the framework of the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (hereinafter referred to as “CPTPP Agreement”), the Free Trade Agreement between the Socialist Republic of Vietnam and the European Union (hereinafter referred to as “EVFTA Agreement”), and the Free Trade Agreement between Vietnam and the United Kingdom of Great Britain and Northern Ireland (hereinafter referred to as “UKVFTA Agreement”) in Appendixes I, II and III enclosed herewith.”

b) Point e Clause 2 is amended as follows:

 “e) The cases specified in Clause 8 Appendix I, Clause 7 Appendix II and Clause 9 Appendix III enclosed herewith.”

2. Clause 1 and Clause 2 Article 3 are amended and Clause 9 is added to Article 3 as follows:

a) Clause 1 and Clause 2 are amended as follows:

 “1. “procuring agency” refers to one of the authorities and organizations mentioned in Appendixes I, II and III enclosed herewith that is assigned to act as the main investor or the procuring entity of the procurement project or cost estimate.

2. “Member State” refers to a country or territory that meets one of the following conditions:

a) It is a signatory of the CPTPP Agreement dated March 08, 2018, and at the time of giving approval for the EOI request, prequalification document, the request for proposals or the bidding documents, the CPTPP Agreement has entered into force for that country or territory (hereinafter referred to as “CPTPP Member State”);

b) It is applying the Treaty on European Union and the Treaty on the Functioning of the European Union (hereinafter referred to as “EU Member State”);

c) It is the United Kingdom of Great Britain and Northern Ireland.”

b) Clause 9 is added to Article 3 as follows:

 “9. “government procurement” refers to the process of selecting a bidder that meets capacity and experience requirements and owns feasible solutions to enter into and execute a contract for supply of goods and/or services for governmental purposes and not with a view to commercial sale or resale or use in the production or supply of goods or services for commercial sale or resale on the basis of ensuring competition, fairness, transparency and economic efficiency.”

3. Article 4 is amended as follows:

 “Article 4. Intra-regional bidding and international bidding

1. When organizing the selection of bidders for the procurements within the scope of this Decree, procuring agencies shall organize intra-regional bidding in accordance with Clause 2 and Clause 3 of this Article, unless the international bidding is deemed necessary by a competent person for achieving higher efficiency of the project or procurement.

2. In case of intra-regional bidding for procurements for supply of services, procuring agencies shall comply with the following provisions:

a) Regarding the procurements specified in Appendix I enclosed herewith, intra-regional bidders shall be allowed to submit bids;

b) Regarding the procurements specified in Appendix II enclosed herewith, intra-regional bidders or only bidders of CPTPP Member States are allowed to submit bids according to decision of procuring agencies;

c) Regarding the procurements specified in Appendix III enclosed herewith, intra-regional bidders or only bidders of EU Member States, and the United Kingdom of Great Britain and Northern Ireland are allowed to submit bids according to decision of procuring agencies;

d) Regarding the procurements for supply of services bearing code CPC 75231 (data network services), CPC 75232 (electronic message and information services), and CPC 84 (computer and related services) specified in Appendix II enclosed herewith, CPTPP Member States or only domestic bidders are allowed to submit bids according to decision of procuring agencies.

3. In case of intra-regional bidding for procurements for supply of goods, procuring agencies shall comply with the following provisions:

a) Regarding the procurements for supply of goods specified in Appendix I enclosed herewith, only intra-regional bidders that offer goods originating in Member States are allowed to submit bids;

b) Regarding the procurements for supply of goods specified in Appendix II enclosed herewith, intra-regional bidders that offer goods originating in CPTPP Member States, EU Member States, and the United Kingdom of Great Britain, or only bidders of CPTPP Member States that offer goods originating in CPTPP Member States are allowed to submit bids according to decision of procuring agencies;

c) Regarding the procurements for supply of goods specified in Appendix III enclosed herewith, intra-regional bidders that offer goods originating in CPTPP Member States, EU Member States, and the United Kingdom of Great Britain, or only bidders of EU Member States, and the United Kingdom of Great Britain that offer goods originating in EU Member States, and the United Kingdom of Great Britain are allowed to submit bids according to decision of procuring agencies.”

4. Clause 3 Article 5 is amended as follows:

 “3. Offsets

Regarding the procurements covered by this Decree, procuring agencies may apply offsets according to the roadmap prescribed in Clauses 1, 1a, 1b, 2, 3 and 4 Article 15 of this Decree. After the period specified in Article 15 of this Decree, offsets may no longer be applied.”

5. Some Points are added to Article 6 as follows:

a) Point h and Point i are added to Clause 1 as follows:

 “h) The bidder has not incurred any final judgments by a judicial court in respect of serious crimes or other serious offences in 03 years before the bid closing time;

i) There is no evidence of serious professional misconduct by the bidder in 03 years before the bid closing time.”;

b) Point dd and Point e are added to Clause 2 as follows:

 “dd) The bidder has not incurred any final judgments by a judicial court in respect of serious crimes or other serious offences in 03 years before the bid closing time;

e) There is no evidence of serious professional misconduct by the bidder in 03 years before the bid closing time.”

6. Clause 7 is added to Article 7 as follows:

 “7. With regard to state-owned economic groups of Vietnam, if goods or services of the procurement belong to primary business lines of an economic group and are both the outputs of one company and the inputs of the other within this economic group, both the economic group and its subsidiaries may participate in each other's selection of contractor. In this case, bidders are not required to display their legal and financial independence from the counseling contractor that is also a subsidiary of the economic group."

7. Point k is added to Clause 1 Article 9 as follows:

 “k) Summary notice in English of the invitation for prequalification applications, EOI notice, and the invitation to bid for the procurements specified in Appendix I and Appendix III enclosed herewith. The summary notice shall be published after the EU has completed provision of technical and financial assistance to Vietnam in order to develop, establish and maintain an automatic system for the translation and publication of summary notices on Vietnam’s National E-procurement System.”

8. Clause 1a and Clause 1b are added following Clause 1 Article 15 and Clause 5 Article 15 are amended as follows:

a) Clause 1a and Clause 1b are added following Clause 1 as follows:

 “1a. Regarding the procurements specified in Appendix I and Appendix III enclosed herewith, the transition period is prescribed as follows:

a) From August 01, 2020 to January 13, 2029, procuring agencies shall apply offsets according to Clause 6 of this Article. Competent persons shall determine total value of offsets per year which does not exceed 40% of total contract value of the procurements covered by this Decree under their management;

b) From January 14, 2029 to July 31, 2038, procuring agencies shall apply offsets according to Clause 6 of this Article. Competent persons shall determine total value of offsets per year which does not exceed 30% of total contract value of the procurements covered by this Decree and under their management;

c) From August 01, 2038 onwards, procuring agencies may not apply offsets to the procurements covered by this Decree and under their management.

1b. Regarding the procurements specified in Appendix II enclosed herewith, the transition period shall comply with Clauses 2, 3, 4, 6 and 7 of this Article.”

b) Clause 5 is amended as follows:

 “5. Procuring agencies shall determine the procurements under their management eligible for offsets in accordance with the provisions of Clauses 1a, 1b, 2 and 3 of this Article.”

9. Point d Clause 2 Article 29 is amended and Point e is added to Clause 2 Article 29 as follows:

a) Point d Clause 2 is amended as follows:

 “d) In estimating the value of a procurement for the purpose of ascertaining whether it is a procurement covered by this Decree, the procuring agency shall include the estimated maximum total value of the procurement over its entire duration, taking into account all forms of remuneration, including premiums, fees, commissions and interest, or other payments made under contracts; in case of a procurement applying the option to buy as prescribed in Clause 3 of this Article, the value of the procurement shall also include the total value of that option for the purpose of comparison to the relevant threshold specified in Appendixes I, II and III enclosed herewith;”

b) Point e is added to Clause 2 as follows:

 “e) For a centralized procurement or recurring procurement divided into separate procurements, the calculation of the value of a procurement shall be based on:

- The demand during a year for the purpose of avoiding division of the procurement into separate parts;

- The online contractor selection results of the same type of good or service during the preceding 12 months before the contractor selection plan is given approval, taking into account the conformity with the quantity and market value of the good or service being procured. In case the online contractor selection results are not available, the offline contractor selection results or at least 03 quotations shall be employed, taking into account their conformity with the quantity and market value or reference values announced by suppliers and obtained through the Internet of the good or service being procured.”

10. Clause 5 is added to Article 39 as follows:

 “5. Except procurements for supply of consulting services, any bid that fails to meet the requirements regarding key personnel or primary construction equipment set out in the bidding documents shall not be disqualified during the assessment of bidder’s capacity and experience. The bidder shall be requested to propose substitute personnel or equipment within an appropriate period of time for continued assessment by the procuring entity. The bid shall be disqualified if the bidder fails to comply with the request for proposal of qualified substitute personnel or equipment.”

11. Clause 3 is added to Article 79 as follows:

 “3. In the cases specified in Points c, dd and g Clause 2 Article 21 of this Decree, the procedures in Article 77 and Article 78 of this Decree may be applied if they are deemed necessary.”

12. Clause 16 Article 97 is amended and Clause 18 is added to Article 97 as follows:

a) Clause 16 is amended as follows:

 “16. In case of changes in the name or the separation of a procuring agency listed in Appendixes I, II, and III enclosed herewith into two or more agencies, the new agency(ies) shall be all added to the procuring agencies listed in these Appendixes.

In case of merger or consolidation of one or more procuring agencies listed in Appendixes I, II, and III enclosed herewith, the procurements of the entities established after the merger or consolidation for the purposes of performing functions and tasks of the former entities shall comply with the provisions of this Decree.

In case an affiliated entity of the procuring agency listed in Appendixes I, II, and III enclosed herewith is transferred to another agency for management, it shall be still considered as one of the procuring agencies listed in these Appendixes.”

b) Clause 18 is added to Article 97 as follows:

 “18. In case the contractor selection methods prescribed in Articles 20 and 21 of this Decree cannot apply to the procurement or the project due to special conditions, contractor selection plans shall be considered and decided by the Prime Minister on the basis of conformity with CPTPP Agreement, EVFTA Agreement, and UKVFTA Agreement. The Ministry of Planning and Investment of Vietnam shall take charge of appraising contractor selection plans in special cases subject to the consideration and decision by the Prime Minister as prescribed in this Clause.”

13. Article 102 is amended as follows:

 “Article 102. Transition

1. Regarding the procurements governed by the CPTPP Agreement, EVFTA Agreement or UKVFTA Agreement, if contractor selection plans, EOI requests, prequalification documents, request for proposals and bidding documents have been approved but have been not yet issued by the effective date of this Decree and are found to contain information unconformable to the provisions of this Decree, they must be modified and approved to meet the requirements laid down in this Decree.

2. Regarding the procurements governed by the CPTPP Agreement, EVFTA Agreement or UKVFTA Agreement for which the bid closing date falls after the effective date of this Decree, if EOI requests, prequalification documents, request for proposals and bidding documents have been issued before the effective date of this Decree but are found to contain information unconformable or contrary to the provisions of this Decree before the bid closing date, they must be modified to meet the requirements laid down in this Decree. In this case, main investors or procuring entities shall provide bidders with a reasonable length of time for preparing their expression of interests, prequalification applications, proposals or bids.

3. Regarding the procurements governed by the CPTPP Agreement, EVFTA Agreement or UKVFTA Agreement for which bids have been opened before the effective date of this Decree, the evaluation of expression of interests, prequalification applications, proposals or bids and acceptance of bids shall be carried out according to the provisions of the issued EOI requests, prequalification documents, request for proposals and bidding documents provided that such evaluation and acceptance of bids are not inconsistent with the provisions of the CPTPP Agreement, EVFTA Agreement or UKVFTA Agreement.”

Article 2. Addition, replacement and abrogation of regulations and Appendixes of Decree No. 95/2020/ND-CP

1. The phrase “, Hiệp định EVFTA, Hiệp định UKVFTA” (“,EVFTA Agreement, UKVFTA Agreement”) is added following the phrase “Hiệp định CPTPP” (“CPTPP Agreement”) in Clause 2 Article 8, Point a Clause 2 Article 10, Clause 1 Article 27, Clause 5 Article 81, Point b and Point d Clause 1 Article 100, Clause 2 Article 100 and Article 101.

2. Appendixes I, II and III are replaced.

3. Appendixes IV, V, VI and VII are abrogated.

Article 3. Effect

This Decree comes into force from the date on which it is signed./.