Tìm hiểu về Luật đấu thầu: Phần 2

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Nội dung Text: Tìm hiểu về Luật đấu thầu: Phần 2

Part II THE LAW ON TENDERING 129
Table of conlents TABLE OF CONTENTS THE LAW ON TENDERING C h a p ter I G E N E R A L P R O V IS IO N S 139 Article 1. Governing scope 139 Article 2. Applicable entities 141 Article 3. Application of the Law on Tendering, related laws. international treaties and international agreements 141 Article 4. Interpretation of terms 142 Article 5. Iníormation on lendering 150 Article 6. Tendering plans 151 Article 7. Eligibility of tenderers being organizations 153 Article 8. Eligibility of tenderers being individuals 154 A rtid e 9. Requirements applicable to a party calling for tenders and to an expert tenđering group 154 Article 10. Conditions for participation in tenđering for any one tender package 156 131
KEY ISSUES IN THE LAW ON TENDERING Article 11. Ensuring competitiveness in tendering 157 Article 12. Prohibited conducts in tendering 159 Article 13. International tendehng 163 Article 14. Preíerential treatment in international tendering 164 Artìcle 15. Currency to be used in tendering 165 Article 16. Language to be used in tendering 165 Artỉcle 17. Expenses for tendering 166 C h a p ter I I S E L E C T IO N 0 F C O N T R A C T O R S 166 Section 1 FORMS 0F SELECTION 0F CONTRACTORS 166 Article 18. open tendering 166 Article 19. Limited tendering 167 Article 20. Direct appointment of contractor 168 Article 21. Direct procurement 170 Article 2Z OxTipetitive quotation in procxirement of goods 171 Article 23. SelMmplementation 172 Article 24. Selection of contractor in specia! cases 172 132
Table of contents Section 2 GENERAL PROVISIONS ON TENDERING 173 Article 25. Conditions for issuance of tender invita- tion documents 173 Artỉcle 26. Methods of tendering 173 Article 27. Tenđer guarantee 175 Article 28. Principles for assessment of tenders 177 Article 29. Method of assessment of tenders 178 Article 30. Tendering Via the Internet 180 Article 31. Regulations on time-limíts applicable during tendering 181 Section 3 SEQUENCE FOR IMPLEMENTATION 0F TENDERING 183 Article 32. Preparation for tendering 183 Artìcle 33. Organization of tendering 186 Artícle 34. Claritication of tender invitation documents 187 Article 35. Sequence of assessment of tenders 188 Article 36. Clariíìcation of tenders 189 Artícle 37. Consideration for recommendation as the 133
KEY ISSUES IN THE LAW ON TENDERING vvinning tenderer in the case of tendering for provision of consultancy services 190 Article 38. Consideration for recommendation as the vvinning tenderer in the case of tendering for procurement of goods, for construction and Installation. and for EPC 190 Artícle 39. Submission for approval and evaluation of the results of tendering 191 Articte 40. Approval of the results of tendering 192 Articte 41. Notification of the results of tendering 193 Artícte 42. Negotiation, finalization and signing of the contract 193 Section 4 CANCELƯVTION 0F TENDERING AND REJECTION 0F TENDERS 194 Artícle 43. Cancellation of tendering 194 Article 44. Pinandal liabilíties when tendering is cancelled 195 Artícle 45. Rejection of tenders 196 C h a p te r III CONTRACTS 197 Artícte 46. Pnnciples for íormulatíon of contracts 197 134
Table of contents Article 47. Contents of contracts 197 Article 48. Forms of contract 198 Artícle 49. Lump-sum contract 198 Article 50. Form of unit price contract 199 Artỉcle 51. Form of time based contract 199 Article 52. Form of percentage based contract 200 Artỉcle 53. Multiple contractual forms within the one contract 200 Article 54. Signing of contract 201 Article 55. Contracỉ pertormance guarantee 201 Article 56. VVarranty 202 Artỉcle 57. Adjustment to contracts 203 Article 58. Contract payment 205 Article 59. Supervision of implementation of contract. check and acceptance of, and liquidation of the contract 205 C h a p ter IV RIGHTS AND OBLIGATIONS OF PARTIES IN TENDERING 207 Article 60. Responsibilities of the authorized person 207 135
KEY ISSUES IN THE ư^w ON TENDERING Article 61. Rights and obligations of Investors 208 Article 62. Rights and obligations of parties calling for tenders 209 Article 63. Rights and obligations of expert tender- ing groups 210 Article 64. Rights and obligations of tenderers 211 Article 65. Rights and obligations of evaluating bod- ies or organi2 ations 212 C h a p ter V ADMINISTRATION 0 F T E N D E R IN G A C T IV IT IE S 213 Article 66. Contents of State administration of tendering 213 Article 67. Responsibílities and powers of the Government and of the Prime Minister of the Government 214 Article 68. Responsibỉlities and povvers of the Mỉnistry of Planning and Investment 215 Article 69. Responsibilities and powers of ministríes. ministerỉal equívalent bodỉes, and all level peopJe's committees 216 Article 70. Dealing with situations in tendering 217 136
Table of contents Article 71. Tendering Inspectorate 219 Article 72. Resolution of protests regarding tendering 219 Article 73. Procedures for resolution of protests regarding tendering 220 Article 74. Complaints and denunciations about tendering 224 Artícle 75. Dealing with breaches of the laws on tendering 224 C h a p t e r VI IMPLEMENTING P R O V IS IO N S 225 Article 76. Implementation guidances 225 Artỉcle 77. Implementation effects 226 137
Part II. The Law on Tenderlng NAÌKỈNAL ASSEMBLY SOCIALIST REPUBLIC OF VIETNAM No. e i-2 0 0 5 -Q H ll Independence - Preedom - Happiness NATIONALASSEMBLY 0 F THE SOOALIST REPUBLIC OF VIETNAM LEGISLATURE XI, SESSION 8 (from ĨH October until 29 November 2005) LAW ON T E N D E R IN G Pursuant to the ĩ 992 Coníĩtítutíon o f the Socialist Republic o f Vietnani as am ended an d supplemented '^by Resolution 5Ĩ-200Ĩ'QHW p assed by Legisỉature X o f the National Assenihĩỵ at íts lOth Session on 25 December 2001; This Law reguỉates tendering. C h a p ter I G E N E R A L P R O V IS IO N S A rticle 1. G overn in g sc o p e This Law regulates tendering activities in order to select contractors for provision of consultancy services, for procurement of goods, and for construc- tion and installation for tender packages belonging to the 139
KEY ISSUES IN THE LAW ON TENDERING following projects: 1. Investment and development projects financed by the State as to thirty (30) per cent or more, comprising: (a) New construction and investment projects, and upgrading and expansion of construction projects in which investment has already been made; (l>) Investment projects for procurement of assets including equipment and machinery not required to be installed; (c) Projects for planning for regional development, planning for industry development, and planning for construction of urban and ruraỉ areas; (d) Projects for scientifìc research, for develop- ment of technologv’, and for technical assistance; (dd) Other projects for purposes of investment and development. 2. Projects financed by the State for procurement of assets for the purpose of maintairúng regular activities of State bodies, political organizations, socio-political organizations, socio-political-occùpationai organiza- tions, social organizations, socio-occupational organi- zations and units of the armed íorces. 3. Projects financed by the State for procurement 140
Part II. The Law on Tendering of assets for the purpose of renovation or major repairs to equipment, production lines, building vvorks and factories of State owned enterprises in which investment has already been made. A r t i c le 2. A p p lic a b le en tỉties 1. Domestic and íoreign organizations and indi- viduals participating in tendering activities for ten- der packages belonging to the projects stipulated in Article 1 of this Law. 2. Organizations and individuals involved in ten- dering activities for tender packages belonging to the projects stipulated in Articlp 1 of this I^aw 3. Organizations and individuals with projects not within the governing scope of this Law may choose to apply this Law. A rticle 3. A p p lication o f th e L aw on Tenderingy related lawSy ỉntern atỉo na l treatỉes a n d ỉnter- natỉonal agreem ents 1. Tendering activities must comply vvith the pro- visions of this Law and other related laws. 2. If th e re are any sp e cia l m a tte rs on te n d e rin g stipulated in other lavvs, then those such laws shall apply. 3. Tendering for projects using official development 141
KEY ISSUES IN THE LAW ON TENDERING aid (abbreviated as ODA) shall be implemented on the basis of provisions in international treaties of which the Socialist Republic of Vietnam IS a member or international agreements signed by authorized bodies or organizations on behair of the Socialist Republic of Vietnam. A rticle 4, In te r p r e ta tio n o f term s In this Law, the following terms shall be con- strued as follows: 1. Pinanced by the State means the use of State Budget funds, credit íacilities guaranteed by the State, credit facilities for investment and develop- ment of the State, investment and development funds of State owned enterprises, and other Capital funds managed by the State. 2. Tendering means the process of selecting a con- tractor who satisĩies the requirements set by the party calling for tenders in order to implement a tender package belonging to a project stipulated in Article 1 of this Law, on the basis of ensuring competitiveness, ĩairness, transparenry and economic efficiency. 3. Tendering activities means activities of the par- ties involved in the process of selecting a contractor. 142
Part II. The Law on Tendering 4. Sequence for im pỉem entation o f tendering means the steps being preparation for tendering; organization of tendering; assessment of tenders; evaluation and approval of the results of tendering; notification of the results of tendering; and negotia- tion, fmalization and signing of a contract. 5. Domestic tendering means the process of selec- tion of a contractor who satisfies the requirements of the party calling for tenders, in which domestic ten- derers participate. 6. Internationaỉ tenderỉng means the process of selection of a contractor who satisfies the require- ments of the party calling for tenders, in vvhich both foreign and domestic tenderers participate. 7. Prqịect means a set of proposals for implementing a part or the whole of works aimed at achieving an objective or a requirement within a specified period of tiine and based on a specified fmancing source. 8. Aưthorized person means the person with the right pursuant to laws to make project decisions. In the case of projects financed by the State as to thirty (30) per cent or more, excluding projects Tinanced by the State as to One hundred (100) per cent, the authorized person is the Board of Management or authorized 143
KEY ISSUES IN THE LAW ON TENDERING representative of the Capital contributing parties. 9. Inuestor means the entity ovvning the financing Capital or the entitv assigned responsibility to repre- sent such ovvner, or the borroNver directly managing and implementing any project as defined in clause 7 of this Article. 10. Party caỉling for tenders means the investor or a professional organization with sufficient capabilitv and experience in accordance with the laws on tender- ing for the investor to hire in order to hold tendering. 11.Tenderer means any eligible organization or individual as stipulated in Articles 7 and 8 of this Law. 12. H ead contractor means a tenderer liable for its participation in tendering which gives its name to a tender, and which signs and implements a contract if selected (hereinafter referred to as a participating tenderer). A tenderer participating in tendering inde- pendently is referred to as an independent tenderer. A tenderer participating in tendering jointly with one or more other tenderers to submit one tender is referred to as a partnershỉp tenderer. 13. Consultancy tenderer means a tenderer partici- pating in tendering for the supply of pnxlucts, who satisfies 144
Part II. The Law on Tendering the requirements on knovvledge and professional expe- rience stipulated in clause 34 of this Article. 14. Supply tenderer means a tenderer participating in tendering for tender packages for the supply of goods as deĩmed in clause 35 of this Article. 15. Construction tenderer means a tenderer par- ticipating in tendering for tender packages for con- struction and installation as defined in clause 36 of this Article. 16. EPC tenderer means a tenderer participating in tendering for the performance of an EPC tender package as deíĩned in clause 21 of this Article. 17. Suh-contractor means a contractor performing part of the work of a tender package on the basis of an agreement or contract signed with the head con- tractor. A sub-contractor is not a contractor liable for participation in tendering. 18. Domestic tenderer means any tenderer estab- lished and operating pursuant to the laws of Vietnam. 19. Foreign tenderer means any tenderer estab- lished and operating pursuant to the laws of the country of nationality of such tenderer. 20. Tender package means a part of a project, and 145
KEY ISSUES IN THE ưvw ON TENDERING in a number of special cases means the entire project; a tender package may comprise items for the procure- ment of similar goods for a number of proj€?ct5 or a one*off procurement in regular procurement of goods. 21. EPC tender package means a tender package which comprises the entire work of design, supply of equipment and materials, and construction and installation. 22. Pre-quaỉí/ĩcation invitation documents means all of the documents stipulating the requirements on capability and experience of tenderers as the legal basis for the party calling for tenders to select a list of tenderers to be invited to submit tenders. 23. Pre-quaỉifĩcation application means all of the documents prepared by a tenderer in accordance with the requirements of the pre-qualification invitation documents. 24. Tender invitation documents means all of the documents used for open or limited tendering stipu- lating the requirements for any one tender package and providing the legal basis for tenderers to prepare their tenders and for the party calling for tenders to assess tenders aimed at selection of a winning ten- 146
Part II. The Law on Tendering derer; and also providing the basis for negotiation, finalization and signing of a contract. 25. Tender m eans all of the documents prepared by a tenderer in accordance with the requirements of the tender invitation documents and submitted to the party calling íor tenders in accordance with the provisions in the tender invitation documents. 26. Tender package price means the value of a ten- der package specified in the tendering plan based on the approved total invested Capital, total estimated budget or estimated budget and current regulations. 27. Tender price meaiis the pricti slated by a teii- derer in its tender. If a tenderer provides a discount letter, then the tender price is the price after deducting the discount. 28. Proposed contrací sum means the sum proposed by the party calling for tenders on the basis of the tender price of the tenderer selected to be avvarded the cx)ntract after errors have been rectified and discrepancies have been adjusted as required by the tender invitation documents. 29. v/inning tender price means the price approved from the results of selection of contractor as the basis 147
KEY ISSUES IN THE LAW ON TẼNDERING for negotiation, finalization and signing of a contract. 30. E qual [ootiĩig price means the tender price submitted by a tenderer to implement a tender package after errors have been rectiĩied and discrepancies have been adjusted, and after adding all necessary operating and maintenance costs and other costs relating to the schedule, quality and origin of goods or construction works under the tender package for the entire use life. Equal footing prices shall be used to compare and rank tenders and are referred to as the assessment prices. 31. Contract means the document signed between the investor and the selected contractor based on the agreement reached betvveen the parties. The contract must be in accordance with the decision approving the results of selection of contractor. 32. Tender guarantee means that the tenderer provides security by one of the methods of paying a deposit, providing collateral or providing a letter of guarantee for a defmite term as stipulated in the ten- der invitation documents, in order to secure the lia- bility of the tenderer for its tender. 33. Contract perform ance guarantee means that the tenderer provides security by one of the security 148