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Part II THE LAW ON TENDERING

Table of conlents

TABLE OF CONTENTSTHE LAW ON TENDERING

C h a p t e r I

G E N E R A L P R O V IS IO N S 139

A rticle 2 Applicable entities 141

Article 3 Application of the Law on Tendering, related

laws international treaties and international agreements 141

A rticle 4 Interpretation of terms 142

A rticle 5 Iníormation on lendering 150

A rticle 7 Eligibility of tenderers being organizations 153

A rticle 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

A rticle 10 Conditions for participation in tenđering

Article 11 Ensuring competitiveness in tendering 157

Article 12 Prohibited conducts in tendering 159

A rticle 13 International tendehng 163

Article 14 Preíerential treatment in international

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 20 Direct appointment of contractor 168

Article 2Z OxTipetitive quotation in procxirement of goods 171

Article 24 Selection of contractor in specia! cases 172

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Table of contents

Section 2

GENERAL PROVISIONS ON TENDERING 173

A rticle 25 Conditions for issuance of tender invita-

Artỉcle 26 Methods of tendering 173

Article 28 Principles for assessment of tenders 177

A rticle 29 Method of assessment of tenders 178 Article 30 Tendering Via the Internet 180 Article 31 Regulations on time-limíts applicable

A rticle 35 Sequence of assessment of tenders 188

A rticle 36 Clariíìcation of tenders 189

Artícle 37 Consideration for recommendation as the

vvinning tenderer in the case of tendering for provision of

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

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

Section 4

CANCELƯVTION 0 F TENDERING

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

C O N T R A C T S 197

Artícte 46 Pnnciples for íormulatíon of contracts 197

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Article 47 Contents of contracts 197

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

A rtỉcle 53 Multiple contractual forms within the one

Article 54 Signing of contract 201

Article 55 Contracỉ pertormance guarantee 201

A rtỉcle 57 Adjustment to contracts 203

Article 59 Supervision of implementation of contract

check and acceptance of, and liquidation of the contract 205

Article 61 Rights and obligations of Investors 208 Article 62 Rights and obligations of parties calling

Article 63 Rights and obligations of expert tender-

Article 64 Rights and obligations of tenderers 211

Article 65 Rights and obligations of evaluating bod-

C h a p t e r 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

Article 69 Responsibilities and powers of ministríes

ministerỉal equívalent bodỉes, and all level peopJe's

Article 70 Dealing with situations in tendering 217

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Article 71 Tendering Inspectorate 219

Article 72 Resolution of protests regarding tendering 219 Article 73 Procedures for resolution of protests

A rticle 76 Implementation guidances 225

Artỉcle 77 Implementation effects 226

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

NATIONAL ASSEMBLY 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.

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

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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 tic 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 the L aw on Tenderingy

related lawSy ỉnternatỉonal 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 I f t h e r e a r e a n y s p e c i a l m a t t e r s o n t e n d e r i n g

stipulated in other lavvs, then those such laws shall apply

3 Tendering for projects using official development

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

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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

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

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

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-

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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

for negotiation, finalization and signing of a contract.

30 Equal [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

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Part II The Law on Tendering

methods of paying a deposit, providing collateral or providing a letter of guarantee for a definite term as stipulated in the tender invitation documents, in order to secure the liability of the winning tenderer

to perform the contract

34 Consultancy services comprise:

(a) Consultancy services on project preparation comprising ĩormulation and assessment of planning reports, charts on overall development, architecture, pre-feasibility and íeasibility study reports;

(b) Consultancy services on project implementation comprising surveyirig, deaigii, total estimated budgets and estimated budgets, preparation of tender invitation documents, assessment of tenders, and supervision of execution of building and installation of equipment;

(c) Consultancy services on project management, arranging íinance, training, technology transíer and other consultancy services

35 Goods means machinery, equipment, raw materials, fuel, supplies, consumer goods, and services other than conKultancv services

36 Construction an d instaỉỉation comprises work which is part of the process of building and installing

equipment in construction works and items of vvorks, and of renovation and major repairs.

37 Protest regardỉng tendering means a request from any tenderer participating in tendering for reconsideration of the results of selection of contrac- tor or of any other relevant matter during the tendering process when such tenderer considers that his rights and interests have been adversely affected

38 National tendering netivork means the system applying iníormation technology set up and managed

by the State administrative body for tendering in order to uniformly administer information about ten- dering and to Service tendering activities

39 Tendering evaluation means check and assess- ment by the body or organization in charge of the evaluation of tendering plans, tender invitation documents and results of selection of contractor as the basis for the authorized person to consider and make a decision in accordance with this Law An evaluation of the results of selection of contractor is not a re-assessment of tenders

Article 5 Inform atỉon on ten d erỉn g

1 The following information on tendering must

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Part II The Law on Tenderlng

be published in the tendering newsletter and on the tendering website of the State administrative body for tcndering:

(a)Tendering plans;

(b) Notices inviting pre-qualification applications;

results of pre-qualification;

(c) Invitations to tender in the case of open tendeiing;

(d) lists of tenderers invited to participate in tendering;

(dd) Results of selection of contractor;

(e) Iníormation on how breaches of the law on

tendering have been dealt with;

(g) Current legal Instruments on tendering;

(h) Other relevant information

2 After the information stipulated in clause 1 of this Article has been published in the tendering newsletter and on thé tendering website, it may also

be published on other mass media in order to facilitate

access by interested organizations and individuals

The Government shall provide detailed regula-

tions on iníormation on tendering.

A rtícle 6 T en d erỉn g p la n s

1 The authorized person must provide vvritten

approval of a tendering plan after approval of the investment decision, or the tendering plan may be approved at the same time as the investment deci- sion in cases where there are adequate conditions providing a legal basis for the investor to hold selec- tion of a contractor, except for tender packages which must be implemented prior to an investment deci- sion The person approving a tendering plan shall be liable beíore the laws for his decision.

2 A tendering plan must be íormulated for the entire project; in cases where there are inadequate conditions to íormulate a tendering plan for the entire project, it shall be permitted to formulate a tendering plan for some tender packages to be imple- mented in advance, but only when essential

3 A tendering plan must set out clearly the num* ber of tender packages and the contents of each ten- der package The contents of each tender package shall comprise:

(a) Name of the tender package;

(b) Tender package price;

(c) Financing source;

(d) Form of selection of contractor; method of tendering;

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Part II The Law on Tendering

(dd) Scheduled time for selection of contractor;

(e) Form of contract;

(g) Scheduled period for perĩormance of the contract

4 Division of the project into different tender packages shall be based on the technical nature of the project and the sequence for its implementation, ensuring unity vvithin the project and that each tender package

is of an appropriate size There shall be only One set of tender invitation documents for any one tender package, and tendering shall only be held once Each tender package shall be implemented by only one contract, except where a tender package is made up of several independent components in which case it may be implemented by one or more than one contract

A rticle 7 E lig ib ility o f te n d e re rs b ein g organizations

A tenderer being an organization shall be deemed to

bo eligible vvhen it satisfies the following conditions:

1 It has a business registration certiíìcate or investment certiTicate issued pursuant to laws, or a decision on establishment in the case of a domestic tenderer vvhich is an organization without business registration A foreign tenderer must have registra*

tion for its operation issued by the competent authority

of the country of nationality of the tenderer

2 It is an independent cost accounting entity

3 There is no decision by a competent body con- cluding that the tenderer has an unhealthy financial status; it is not bankrupt or insolvent, and it is not in the process of dissolution

Article 8 Eligibility o f tenderers beỉn g ỉndỉ- viduals

A tenderer being an individual shall be deemed to be eligible when he or she satisfies the foUowmg conditions:

1 Having full capacity for civil acts pursuant to the laws of the country of which such individual is a citizen;

2 Having lawful registration for operation or an appropriate proíessional certiĩicate issued by the competent authority;

3 The individual is not subject to the prosecution for criminal liability

Article 9 Requirements applỉcable to a party calỉỉngfor tenders and to an expert tenderinggroup

1 Individuals being members of a party calling for tenders must satisíy all the following conditions:

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Part II The Law on Tendering

(a) Be knowledgeable about the laws on tendering;

(b) Be knovvledgeable about project management;

(c) Have professional expertise appropriate to the

requirements of the tender package in technical, Ênandal,

commercial, administrative and legal ĩields;

(d) Have foreign language skills suíĩicient to satisíy

the requirements for tender packages for which inter-

national tendering is held and for tender packages of

ODA fmanced projects,

2 Depending on the nature and complexity of a tender package, the expert tendering group shall include

experts in technical, financial, commercial, adminis-

trative, legal and other relevant fields Members of

an expert tendering group must satisĩy all of the

(c) Be knowledgeable about the speciíic contents

of the tender package;

(d) Ha ve at least three years’ vvorking experience

in fields relating to the economic and technical con- tents of the tender package.

Members of an expert tendering group do not necessarily have to be members of the party calling for tenders, and vice versa

3 If an investor has suíTicient personnel who satisíy the conditions stipulated in clause 1 of this Article, the investor may itself act as the party calling for tenders

If the investor has insuíTicient personnel or if it has personnel but they fail to satisfy the conditions stipu- lated in cỉause 1 of this Article, then the investor shall conduct a selection process in accordance with this Law to select a consultancy organization or a profes- sional tendering organization with suíTicient capability and experience to represent the investor in acting as the party calling for tenders In all cases investors shall be liable for the process of selection of contractor pursuant to the provisions of this law and for signing

a contract with the vvinning tenderer after negotiation and finalization of the contract

Article 10 Conditỉons fo r p a rticip a tio n in ten d erin g fo r any one ten d er p a c k a g e

Tenderers participating in tendering for any one

ten-KEY ISSUES IN THE LAW ON TENDERING

Part II The Law on Tenderíng

der package must satisfy all tho following conditions:

1 Be eligible pursuant to Articles 7 and 8 of this Law

2 Submit only one tender, either as an independent tenderer or in partnership, for each tender package

In the case of a partnership there must be a vvritten agreement between the partners specifying the per* son heading the partnership and the general and speciẼc responsibilities of each partner with respect to the tender package works

3 Satisfy the requirements set out in the notice inviting tenders or in the letter inviting tenders from the party calling for tenders;

4. Ensure competitiveness in tendering pursuant

to the provisions in Article 11 of this Law

Article 11 Ensuring competitỉveness ỉn tendering

1 Any tenderer who participates in tendering for

a tender package belonging to the projects stipulated

in Article 1 of this Law must satisfy the following requirements on competitiveness:

(a) A consultancy tenderer who prepared a íeasi- bility study report shall not be permitted to partici- pate in tendering for the provision of consultancy services to prepare the technical designs of the same

KEY ISSUES IN THE LAW ON TENDERING

project Any consultancy tenderer who has already participated in the technical designs of a project shall not be permitted to participate in tendering for the subsequent stcps, except in the case of an EPC ten- der package;

(b) Any tenderer participating in tendering must

be organizationally independent of, rinancially inde- pendent from and not under the control of the managing body of the consultancy tenderer who prepared the tender invitation documents or who will assess the tenders;

(c) A consultancy tenderer who supervises imple- mentation of a contract must be organizationally independent of, rinancially independent from, and not under the control of the managing body of the tenderer who períorms the contract;

(d) Tenderers participating in tendering for ten- der packages belonging to projects must be organiza- tionally independent of, financially independent from, and not under the control of the m ana^ng body

of the project investor

2 The provisions in clause 1 of this Article must

be implemented at the latest by three years in accor- dance with a schedule stipulated by the Government,

Part II The Law on Tendering

from the dato this Law takes effect

The Ciovernmont shall provide detailed regula- tions on ensuring competitiveness in tendering

A rticle 12 P rohibited conducts ỉn ten d erỉn g

1 Giving, accepting or requesting any object of value by an individual or organization involved in the process of selection of contractor or of contractual períormance, resulting in dishonest or partial behaviour vvhen deciding on selection of contractor or when signing and implementing the contract

2 ưsing personal inAuence to affect or to inter- vene in, or intentionally niaking a false or dishonest report about iníormation thus distorting the result of selection of contractor or the signing and implemen- tation of the contract

3 Collaboration or collusion between the party calling for tenders and tenderers, or between the State administrative body and the party calling for tenders and/or tenderers in order to change tenders; collusion with the evaluating organization or an inspectorate in order to affect the collective or national interest

4 Participation by an organization or individual

in both assessment of tenders and in evaluation of the results of selection of contractor within the same tender package.

5 Imposition of speciĩic requirements regarding brand names and country of origin of goods in tender invitation documents applicable to tendering for pro- curement of goods, for construction and installation and EPC tender packages

6 Participation in the capacity of a tenderer in tendering for a tender package for Nvhich such participant is also the party calling for tenders

7 Di Vision of a project into tender packages contrary

to the provisions in clause 4 of Article 6 of this Law

8 Participation by a tenderer in tendering for the supply of goods or for construction and installation in

a tender package for which such participant has pro- vided oonsultancy services, except for EPC tender packages

9 Disclosure of the following data and iníorma- tion regarding tendering;

(a) Contents of tender invitation documents prior

to the stipulated date for issuance of such documents;(b) Contents of tenders, notebooks and minutes of tender consideration meetings, (xnnments and assessments

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Part II The Law on Tendering

from experts and consultants regarding each tender prior to the announcement of ihe results of selection

of contractor;

(c) Requests for cỉarincation of tenders made by the party calling for tenders and responses of tenderers during the process of tonder assessment prior to announcement of the results of selection of contractor;(d) Reports by the party calling for tenders, by the expert group, by consultants or any professional organization involved in the tondering process, or con* sideration of tenders and evaluation prior to announcement of the results of selection of contractor;(dd) Results of selection of contractor prior to the stipulated time for announcement;

(e) Other relevant tendering documents vvhich are stamped “confidentiar’ pursuant to the laws on conĩi- dentiality

10 An arrangement bv a person so that his or her natural parent, parent-in-law, spouse, natural child, adopted child, son or daughter-in-law or sibling par- ticipates in tender packages for vvhich such person is the party calling for tenders, a member the expert tendering group or expert group evaluating the results

of selection of contractor or the person approving the results of selection of contractor.

11 Conduct contrary to the regulations on

management of Capital funds, or causing diffìculties

during the procedures for Capital drawdown or for accounting rmalization under any contract signed between an investor and a contractor

12 An arrangement or collusion between two or more tenderers participating in tendering for the one tender package so that one of the tenderers will be awarded the contract; between the contractor imple- menting a tender package and the consultant super- vising implementation; or between the contractor implementing a tender pạckage and the body or organization assigned the task of check and acceptance

of the results of implementation

13 Provision of one’s name as the tenderer for a tender package belonging to a project of an organiza- tion or body for which such person worked, within a period of one year from the date on which such per- son ceased to work for such body or organization

14 Permitting another tenderer to use one’s legal status in order to participate in tendering; or assign- ment by a contractor who is a \vinning tenderer of the

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performance of the contract to another contractor

15 ưsing a protest regarding tendering in order

to impede the tendering process and the signing of a contract, or to prevent other tenderers from partici- pating in tendering

16 Application of a form of selection of contractor other than open tendering when the conditions stipulated in Articles 19 to 24 inclusive of this Law have not been satisfied

17 Holding tendering when the íinancing source for the tender package has not yet been determined, resulting in insolvency of the contractor

Article 13 Internatỉonal ten d erin g

1 International tendering shall be held in the following cases:

(a) Tender packages belonging to projects using ODA in which the donor stipulates that international tendering must be held;

(b) Tender packages for procurement of goods vvhere the goods are not yet able to be manuíactured domestically;

(c) Tender packages in which domestic tenderers

are incapable of satisfying the requirements of the tender invitation documents, or in vvhich domestic tendering has been held but Nvithout selection of a vvinning tenderer.

2 In a case where a vvinning foreign tenderer fails

to correctly fulfil undertakings in the partnership agreement or fails to employ a Vietnamese sub-con- tractor (if anv) to perform the volume and value of work assigned to the party being the Vietnamese con- tractor and as stipulated in the tender, such tenderer shall be rejected

3 Any íoreign tenderer who is a \vinning tenderer for implementation of a tender package in Vietnam must comply with regulations of the Government of Vietnam on management of foreign contractors

Article 14 P referen tia ỉ treatm ent in interna- tional ten d erin g

Entities entitled to preferential treatm ent in international tendering shall comprise:

1 Tenderers being enterprises established and

OỊDerating m Vietnam pursuant to the Law on Enterprises and the Law on Investment

2 Partnership tenderers where one of the partners

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being an entity prescribed in clause 1 of this Article undertakes work valued at over flfty (50) per cent of a tender package for consultancy servicGS or for construc- tion and installation, or of an EPC tender package

3 Tenderers participating in tendering for tender packages for procurement of goods vvhere the ratio of the domestic manuíacturing costs of such goods is thirty (30) per cent or more

The Government shall provide detailed regulations

on preíerential treatment in international tendering

Article 15 C urrency to be used ỉn ten d erin g

1 The currency to be used in tendering shall be stipulated in the tender invitation documents on the principle of one cumency for any one speciíĩc volume ofiFered

2 Durừig the process of assessment of tenders, the con- version to a common currency for purposes of cx)mparison must be based on the exchange rate betvveen Vietnamese dong and foreign currencies m accordance with the clauses set out in the tender mvitation documents

3 All types of domestic costs must be quoted in Vietnamese dong

A rticle 16 L a n g u a g e to be used ỉn ten d erỉn g

The language to be used in tender invitation

docu-ments, tenders and data exchanged between the party calling for tenders and tenderers shall be Vietnamese

in the case of domestic tendering, and Vietnamese and English in the case of international tendering

A rticle 17 Expenses fo r te n d erỉn g

1 Expenses for preparation of tenders and participation in tendering shall be borne by tenderers

2 Expenses of the process of selection of contractor

shall be included in the total invested Capital or total estimated budget of the project.

3 Tender invitation documents may be sold to tenderers

The Government shall provide detailed regula- tions on costs of tendering

C h a p te r I I

S E L E C T IO N O F C O N TRA CTO RS

Section 1

FORMS 0 F SELECTION 0 F CONTRACTORS

A rticỉe 18 Open ten d erin g

1 The form of open tendering must be held for the

KEYISSUES IN THE LAW ON TENOERING

Part II The Law on Tenđerlng

selection of a contractor to implement a tender package belonging to the projects stipulated in Article 1 of this Law, except in the circumstances stipulated in Articles 19 to 24 inciusive of this Law

2 In open tendering, the number of participating tenders shall be unrestricted Prior to issuing the ten- der invitation documents, the party calling for ten- ders must publish a notice inviting tenders in accor- dance with Article 5 of this Law so that tenderers will have iníormation about participation The party calling for tenders must supply tender invitation dcKuments

to any tenderer who wishes to participate in the ten- dering The tender invitation documents must not include any term or condition aimed at restricting the participation of tenderers or íavouring one or more tenderers thereby causing uníair competition

A rticle 19 Lim ited ten d erỉn g

1 Limited tendering shall apply in the following cases:(a) Where a íoreign donor providing the financing source for the tender package so requests;

(b) Where the tender package has highly technical requirements or technical peculiarities; or in the case

of tender packages of a research or experimental nature

for which only a limited number of tenderers are capable

of satisfying the requirements of the tender package

2 When limited tendering is held, a minimum of five tenderers considered to have the capability and experience to participate in the tendering must be invited; if in fact there are less than five tenderers, the investor must make a submission to the authorixed person for his consideration and decision on permis- sion to continue to hold limited tendering or to apply another form of selection of contractor

A rticle 20 D irect appoỉntm ent o f contractor

1 Direct appointment of a contractor shall apply

in the following cases:

(a) In the case of an event of force majeure due to

a natural disaster, war or a breakdown which should

be immediately dealt with, the investor or the body responsible for managing the building works or assets affected shall be permitted to immediately appoint a contractor to carry out the work Within a tine-lim it not to exceed fifteen (15) days as from the date of making a direct appointment, the investor or the body responsible for management of the building works or assets affected must, together \\ith the

KEYISSUES IN THE LAW ON TENDERING