THÔNG TIN TÀI LIỆU
VIETNAM ACADEMY OF SOCIAL SCIENCES GRADUATE ACADEMY OF SOCIAL SCIENCES NGUYEN HUU MANH ENSURING COMPETITION IN CONSTRUCTION BIDDING BY LAWS OF VIETNAM Major: Economic Law Major code: 9380107 SUMMARY OF DOCTORAL THESIS HANOI - 2020 The thesis is completed at GRADUATE ACADEMY OF SOCIAL SCIENCES Supervisors:: Assoc Prof Dr Nguyen Thi Van Anh Reviewer : Prof Dr Nguyen Thi Mo Reviewer 2: Assoc Prof Dr Vu Thi Lan Anh Reviewer 3: Assoc Prof Dr Duong Dang Hue This doctoral thesis is to be defended before the Thesis Defense Committee of the Graduate Academy of Social Sciences, at: Graduate Academy of Social Sciences, 477 Nguyen Trai, Thanh Xuan, Hanoi Time:………… Date:……………… The thesis can be found at the Library: - Vietnam National Library - Library of the Graduate Academy of Social Sciences INTRODUCTION The necessity of the thesis Construction activities are a common activity in social life To execute a construction investment project, the investor must follow a process of many different stages In particular, there is a stage of organizing a bidding for construction and installation to select a contractor to perform the project In essence, organizing the bidding for construction and installation is the selection of contractors to perform construction works on the basis of ensuring competition, fairness, transparency and economic efficiency In recent years, regulations on ensuring competitiveness in construction bidding have been inconsistent and incomplete, leading to the following consequences: The right of contractors is not guaranteed; acts of restricting competition and unfair competition in construction bidding are common; Although organizing a bidding, it is impossible to choose a worthy contractor; corruption, wastefulness and loss of construction investment capital arise; The project quality does not meet the requirements set out In order to overcome the abovementioned shortcomings from reality, it is necessary to thoroughly research practical issues from which to have solutions to complete the law to ensure competition in construction bidding In the context of international integration, Vietnam has participated in the signing of many international agreements with the content of ensuring competition in construction bidding These international commitments, as well as international practices and experiences of other countries in construction bidding, should be studied and acquired to improve Vietnam's legal provisions on ensuring competitiveness in construction Construction bidding In order to develop, enact and enforce laws, these activities need to be based on a solid theoretical foundation New bidding activities have been applied in our country since the transition to a market economy The basic theoretical system of ensuring competition in general and ensuring competition in construction bidding in particular in Vietnam is still being built and completed Studies of securing competition in a special field such as construction bidding are few Therefore, the implementation of the topic "Ensuring competition in construction bidding according to Vietnamese law" contributes to elucidating theoretical issues on competition guarantee, serving as a basis for assessing the situation and refunding Improving laws in a specific field of construction bidding is essential 2 Research purposes The research purpose of the thesis is to propose solutions to improve the law and improve the efficiency of law implementation to ensure competition in construction bidding Research tasks of the thesis: (1) Clarify the theoretical basis of ensuring competition in construction bidding; (2) Analyze the situation of ensuring competition in construction bidding according to Vietnamese law; (3) Propose solutions to improve the law and improve the efficiency of ensuring competitiveness in construction bidding according to Vietnamese law Research object and scope of study The object of the thesis is the theoretical and practical issues of ensuring competition in construction bidding according to Vietnamese law Scope of research: (1) Regarding the content, the dissertation focuses on competition law research in a special field, construction bidding, research to ensure competition in construction bidding according to current regulations of Vietnam, not researching to ensure competition in construction bidding in Vietnam according to other sources of law, not researching laws to ensure competition in other fields; (2) Regarding the time, the thesis only focuses on the practical research on the implementation of the law to ensure competition in construction bidding in Vietnam over the last years Theoretical foundation and research methodology The thesis uses the methodology of dialectical materialism and historical materialism The thesis also uses the theoretical background of competition law, the theory of construction bidding to clarify the theoretical issues of ensuring competition by law in a specific field of construction bidding To carry out the research tasks, the author will use many different research methods, including: statistical methods; analytical and synthetic methods; comparative method; logic analysis methods; Interdisciplinary and interdisciplinary approaches New contributions to the science of the thesis - Clarify the theoretical issues on ensuring competition in construction bidding and ensuring competition in construction bidding according to law; - Analyzing the current situation of Vietnamese law on ensuring competition in construction bidding and the reality of implementing competition guarantee in construction bidding in Vietnam today; analyzing the causes of the limitations on ensuring competition in construction bidding according to Vietnamese law; - The thesis proposes a number of solutions to improve the law and improve the efficiency of ensuring competitiveness in construction bidding according to Vietnamese law Theoretical and practical meanings of the thesis With the content and solution given in the thesis can be used as a reference in the compilation, revision and completion of the theory, the legal provisions on ensuring competition in construction bidding in Vietnam The dissertation's research results can be used as teaching materials for legal training institutions, competition law enforcement and construction bidding law in Vietnam today The structure of the thesis In addition to the introduction, conclusion, list of abbreviated symbols, list of tables, list of references, the content of the thesis is structured as follows: Chapter 1: Overview of research situation and research theoretical basis Chapter 2: Theoretical issues on assurance of competition in construction bidding and law on assurance of competition in construction bidding Chapter 3: The situation of ensuring competition in construction bidding according to Vietnamese law Chapter 4: Solutions to perfect the law and improve the efficiency of ensuring competitiveness in construction bidding according to Vietnamese law Chapter OVERVIEW OF THE RESEARCH SITUATION AND BASIS OF RESEARCH 1.1 OVERVIEW OF THE RESEARCH SITUATION RELATED TO THE THESIS THEMES The author has conducted a review of domestic and foreign studies related to the thesis topic The results show that: - In theory, domestic and foreign studies have analyzed the concept and characteristics of competition, but have not clarified the concept and characteristics of competition in a particular field, construction bidding The studies have not clarified the concept and characteristics of guaranteeing competition in construction bidding, nor have clarified the concept, characteristics and objectives of ensuring competitiveness in construction bidding according to law The studies have also analyzed the content of ensuring the competitive environment in construction bidding, removing barriers for contractors participating in auctions Studies have analyzed the content of anti-competitive competition and anti-unfair competition in general There is an analysis and analysis of anti-competitive acts but in accordance with the provisions of the Competition Law 2004, the contents of anticompetition restriction cannot be clarified from the perspective of general theory There have been no studies mentioning the theoretical issue of fighting unfair competition in construction bidding - Regarding the analysis of the current situation of the law, there have been many studies on bidding and construction bidding, but only mention the contents of bidding in general, not yet analyzed and exploited in terms of ensuring the environmental protection healthy picture in construction bidding The domestic and foreign studies have analyzed and assessed the current situation of the anti-competitive law in general under the Competition Law 2004 For provisions on anti-competition restriction and competition in specific fields, There have been a number of studies on the construction and installation bidding to assess the status of the regulations on competition restriction in bidding, but on the basis of the 2004 Competition Law (now expired) There is a lack of studies on the status of legislation on restricting competition in construction bidding under the Competition Law 2018, the status of anti-unfair competition law in construction bidding - Regarding the practice of ensuring competition in construction bidding, there are many studies reflecting the practice of ensuring a healthy competitive environment in construction bidding It specifies the acts of the bidding organizer creating a barrier to the contractor's participation in bidding, acts that not ensure a healthy competitive environment in construction bidding The studies also reflect anti-competitive practices and anti-unfair competition in construction bidding in Vietnam The most serious acts of restricting competition in construction bidding are anti-competitive agreements Unfair competition acts occur, including acts of bid rigging, bidding dumping, infringement of business secrets, disparaging and disruptive activities of competitors in the fight construction and installation contractors However, the studies have not yet analyzed and pointed out the reasons for the limitations in bidding organization creating barriers for contractors when participating in bidding, as well as not performing well responsibility to ensure a healthy competitive environment in bidding The studies have not yet analyzed and clarified the reasons why anti-competitive practices, unfair competition in construction bidding have not been effective recently The studies also have not clarified the cause of the failure to ensure competition due to the failure to ensure a healthy competitive environment in construction bidding or to prevent anti-competitive restrictions and anti-unfair competition Strong in construction bidding is not effective - Regarding proposed solutions, domestic and foreign studies have also mentioned many solutions to amend laws and improve efficiency to ensure competition in construction bidding A number of recommendations to improve the law have been absorbed during the development of the 2018 Competition Law However, there are still some issues that need to be clarified in the Competition Law 2018 or amended related documents to ensure consistency, uniformity, assurance of conformity and enforceability The studies also proposed a number of solutions to improve the efficiency of ensuring competitiveness in construction bidding, especially the recommendations of prestigious organizations such as OECD, WB, Transparency International (TI) The thesis inherits some content in previous studies, and continues to clarify: (1) Some theoretical issues, such as the concept and characteristics of competition in a particular field, namely construction and installation contractors; The concept and characteristics of ensuring competition in construction bidding; The concept, characteristics and objectives of ensuring competition in construction bidding according to law; Theories about anticompetitive competition and unfair competition in construction bidding; (2) Regarding the analysis of legal status, the thesis will continue to clarify: The situation of regulations on ensuring a healthy competitive environment in construction bidding; Actual situation of laws on restraint of competition in construction bidding according to the Competition Law 2018, the situation of anti-unfair competition law in construction bidding; (3) Regarding the practice of ensuring competition in construction bidding, the thesis will continue to clarify: The causes leading to the limitations of the bidding organizer creating barriers for contractors when participating in bidding, as well as failing to perform well the responsibility to ensure a healthy competitive environment in bidding; The causes against anti-competitive acts, unfair competition in construction bidding recently have not been effective; Clarification of the reasons for the failure to ensure competition is due to the failure to ensure a healthy competitive environment in construction bidding or to prevent competition restriction and unfair competition in construction bidding Ineffective; (4) Regarding the proposed solution, the dissertation continues to propose a number of issues to improve the law in order to ensure consistency, uniformity, assurance of conformity and enforceability of the law on assurance compete in construction bidding Proposing the application of a number of international experiences to improve the efficiency of ensuring competitiveness in construction bidding according to Vietnamese law 1.2 BASIS OF RESEARCH THEORY The issues that the dissertation research will go into answer the following questions: - What are the characteristics of competition in construction bidding? - What is the guarantee of competition in construction bidding? - What is the content of competition guarantee in construction bidding? - Does the practice of using the law ensure competition in construction bidding in Vietnam today? - What are the reasons for not guaranteeing competition in construction bidding in Vietnam? Among these causes, which are the main causes? - In order to ensure competition in construction bidding according to Vietnamese law, which direction must the law be completed? - What solutions are needed to improve the law to ensure competition in construction bidding? - What solutions are needed to improve the efficiency of implementation of ensuring competitive competition in construction bidding in Vietnam? The main theories used by the thesis to research and answer the questions include competition theory and bidding theory Competition theory is used to solve the concept, characteristics of competition guarantee, content against competition restriction and unfair competition The theory of construction bidding is used to further clarify the characteristics of competition in a specific domain, namely construction bidding, to further clarify the characteristics of ensuring competition in the field of construction and installation bidding clarifying the responsibilities of the bidding organizer in ensuring a healthy, open and transparent competitive environment, clarifying acts of restricting competition and unfair competition in construction bidding Competition theory and bidding construction theory are also the basis for reviewing the current provisions of Vietnamese law, which is the basis for making recommendations for completion Chapter THEORETICAL ISSUES ABOUT COMPETITION ASSURANCE IN CONSTRUCTION BIDDING AND LEGAL ENSURANCE GUARANTEE COMPETITION IN BIDDING BIDDING 2.1 THEORETICAL ISSUES ABOUT ENSURING COMPETITION IN BIDDING FOR BIDDING 2.1.1 Concept and characteristics of competition in construction bidding Competition in construction bidding is understood as a competition, trying to win on their side, between contractors in the bidding process to gain the right to perform the jobs of the process of construction and public installation Works, construction items Competition in construction bidding has the following basic characteristics: (1) Competition in construction bidding is competition between construction contractors; (2) Competition in construction bidding is competition between construction contractors to win on their side; (3) The purpose of the rivalry between contractors (the rivalry of suppliers) in order to gain the right to enter into and perform a construction contract with the investor (the buyer of the project), thereby gaining profits; (4) Competition in construction bidding is competition in a special market area The special nature of this market sector is derived from the supply of construction products; (5) Competition in construction bidding is always associated with the decisive role of investors (works shoppers) 2.1.2 Factors affecting competition in construction bidding Ensuring competition in construction bidding is influenced by many different factors in the competitive environment, such as acts of entities participating in construction bidding, legal, political, economic factors , society 2.1.3 The need to ensure competition in construction bidding In order to promote the efficiency of using capital for procurement of works, establishing a healthy competitive order and environment in construction bidding, protecting the legitimate interests of contractors participating in competition, the State needs to use adjustment tools to ensure competition in construction bidding 2.1.4 Definition and characteristics of assurance of competition in construction bidding Ensuring competition in construction bidding is the use of competition policies by the State, including many different measures and tools to establish and maintain the competitive environment and combat anti-competitive acts , unfair competition acts in construction bidding Ensuring competition in construction bidding has the following characteristics: (1) The subject to ensure competition in construction bidding is the State; (2) The objective of ensuring competition in construction bidding is to remove barriers to the market of construction and installation service provision, to expand opportunities for contractors to participate in competition in construction bidding; establishing a healthy competitive environment among contractors and against acts of restricting competition and unfair competition in construction bidding In addition, the assurance of competition in construction bidding is also to protect genuine contractors, not to be targeted by the investor in advance to win the bid, to ensure that they can participate in the competition with their own capabilities to win right to perform construction and installation package; to protect investors as shoppers against acts of collusion or unfair competition by contractors, affecting the investor's selection of contractors; improve the efficiency of project procurement capital; (3) Tools to ensure competition in general and to ensure competition in construction bidding in particular include many different tools The State uses two main tools to ensure competition in construction bidding, namely legal and economic instruments; (4) The content of competition guarantee in construction bidding includes the development of competition policies, competition policy enforcement agencies and conditions for enforcing competition policy in the field of bidding build 2.1.5 The concept and characteristics of ensuring competition in construction bidding according to law Ensuring competition in construction bidding according to law is the use of the law by the State as a tool to establish and maintain a competitive environment in construction bidding and combat anti-competitive acts, unfair competition in construction bidding Ensuring competition in construction bidding according to the law has some following characteristics: (1) The subject to ensure competition in construction bidding is the State; (2) The law is used to remove contractors' barriers to entry into the competitive market, to build a healthy competitive 11 2.2.4 Against unfair competition in construction bidding Unfair competition acts in the field of construction bidding have some basic acts such as: (1) Acts of accusation against competitors (on factors associated with competitors) , such as goods, prices, financial status, employees, qualifications, technology equipment ) in order to reduce the reputation of competitors; (2) Acts of infringing on business secrets of other contractors cause loss of competitive advantages of competitors; (3) Bidding dumping behavior The bidder bids below the cost price to increase the likelihood of winning the bid; (4) Fraudulent acts about the contractor's ability, when the contractor intentionally declares untruthful information to improve its capacity in the bid The acts of unfair competition are of private law, so dealing with acts of unfair competition mainly applies civil sanctions (according to the principle of liability for compensation outside contract) or criminal sanctions Besides, if the contractor's fraudulence is detected, the organization may fail the bidder and fail to pay bid security; sanctioned by competent agencies, prohibited from participating in bidding indefinitely or for a definite time Chapter CURRENT SITUATION OF ENSURING COMPETITION IN CONTRUCTION BIDDING UNDER VIETNAMESE LAW 3.1 CURRENT SITUATION OF VIETNAMESE LAW ON ENSURING COMPETITION IN BIDDING 3.1.1 Situation of Vietnamese law on ensuring a healthy competitive environment in construction bidding Investment law prescribes sectors and trades banned from business, conditional business lines and professions that are free to business Construction law prescribes specific conditions for individuals and organizations engaged in business activities in the field of construction and installation The law on construction bidding has many provisions related to the responsibility of the bidding organizer in order to create a healthy competitive environment and remove barriers for contractors when participating in construction bidding fitting Current specialized legislative documents on construction bidding include the Bidding Law 2013 and the Decrees and Circulars detailing, attached instructions Acts of failing to ensure a healthy competitive environment in construction and installation bidding shall be 12 handled by criminal sanctions according to the Criminal Code 2015 (amended and supplemented in 2017), and administrative handling is regulated in the Government's Decree No 50/2016 / ND-CP of June 1, 2016, on administrative sanctions in the field of planning and investment, disciplinary action and liability for compensation due to Internal violations are applied in accordance with relevant general regulations Compared to general practice, the provisions of the Bidding Law 2013 on ensuring a healthy competitive environment in construction bidding still have some differences 3.1.2 Situation of Vietnamese law provisions against anti-competitive competition in construction bidding The acts of restraint of competition in construction bidding are prescribed in the general law of competition law, the separate law is the law of construction bidding The act of negotiating restraint of competition in construction bidding in the form of bidding is prescribed in the Bidding Law 2013 and the Competition Law 2018 However, the cases of bidding in accordance with the Bidding Law 2013 are also different Particularly for cases of general bidding which are detailed in Decree 116/2005 / ND-CP of September 15, 2005, detailing the implementation of a number of articles of the 2004 Competition Law, as well as compared with other kinds of information OECD bid (2012) Under the Competition Law 2018, enterprises or groups of enterprises are considered to have a dominant market position when having significant market power or a large market share capable of causing anticompetitive effects Significant market power is assessed based on many factors, not just market factors as before The 2018 Competition Law prohibits acts of abusing dominant market position, monopoly position that eliminates opponents and exploits To prevent acts of economic concentration that restrict competition in the market, the Competition Law 2018 also provides a control mechanism for enterprises when performing certain acts of economic concentration, merger, consolidation or acquisition of enterprises; joint ventures between businesses Currently, the Penal Code 2015 (amended and supplemented in 2017) provides penalties for anti-competitive agreements However, because the Criminal Code 2015 (amended and supplemented in 2017) is built on the basis of anti-competitive acts established under the Competition Law 2004 The Chairman of the National Competition Commission will issue settlement of violations (for acts of economic concentration) or establishment of anti- 13 competitive settlement council (for violations of anti-competitive agreements; abuse of market dominance and monopoly position) rights) to deal with each specific case Prohibited acts of competition restriction may be subject to warning or fine Depending on the nature and seriousness of violations, competition organizations and individuals may also be subject to one or several additional sanctions and remedial measures The bidding law also stipulates special forms of handling such as cancellation of bidding, banning participation in bidding, and naming in the list of violating contractors 3.1.3 Situation of Vietnamese law provisions against unfair competition in construction bidding The Competition Law 2018 stipulates prohibited unfair competition acts including acts Compared to WIPO (1994), WB & OECD (1999), unfair competition competition classification is basically classified according to the provisions of the Competition Law 2018 Mainly healthy The Bidding Law 2013 also prohibits acts of unfair competition (acts of manipulating illicit customers) when contractors intentionally provide untruthful information in bids to improve competitiveness It is not true to its nature that falsifies the results of contractor selection Article 217 of the 2015 Penal Code (amended in 2017) provides penalties for violations of competition regulations In which only penalties for competition restriction acts are prohibited, penalties for unfair competition acts are not prescribed However, the act of cheating in a tender for construction and installation by a contractor is an individual when intentionally supplying untruthful information in bids to raise competitiveness not in accordance with his / her true nature The result of contractor selection (an act of unfair competition enticing nefarious customers under the provisions of the Competition Law 2018) causes serious consequences and may be subject to criminal penalties under Article 222 of the Ministry Criminal law 2015 (amended and supplemented in 2017) The acts of unfair competition prohibited in bidding in construction and installation in violation of the state management order in competition shall be decided by the President of the National Competition Commission to handle violations Unfair competition acts cause damage to the legitimate rights and interests of other enterprises, in principle, the abused enterprises have the right to sue according to civil procedures for compensation The bidding law also provides for special sanctions against violating contractors, such as 14 cancellation of bids, banning participation in bidding, and being named in the list of violating contractors 3.2 PRACTICE OF ENSURING COMPETITION IN CONSTRUCTION BIDDING IN VIETNAM TODAY 3.2.1 Practice of ensuring competitive environment in construction bidding in Vietnam The reality of a healthy competitive environment in construction bidding is not guaranteed General barriers to the market of construction and installation service provision such as requirements for business registration, and construction practice certificates under the current provisions of Vietnamese law are not significant domestic contractors, and foreign contractors providing construction services in very large markets However, there are many barriers created to prevent the number and scope of contractors participating in construction bidding, and many acts of the bidding organizer affecting the fair competitive environment strong among contractors, falsifying bidding results Some typical manifestations include: (1) the act of selecting a tender form that eliminates or restricts the participation of contractors in construction bidding; acts of setting specific conditions and criteria for bidding participation to limit the number and scope of contractors participating in bidding; (3) acts of preventing contractors from accessing bidding information, bidding documents; (4) acts of discrimination when evaluating bids; (5) unsatisfactory handling of bidding proposals The handling of violations to ensure a healthy competitive environment in construction bidding by criminal, administrative, civil and disciplinary measures also fails to work 3.2.2 Practice against competition restriction in construction bidding in Vietnam Activities of anti-competitive competition in construction bidding have not been effective The most serious acts of restricting competition in construction bidding are anti-competitive agreements However, it is not easy to detect acts of restricting competition in construction bidding, especially underground agreements According to statistics, so far no cases of violation of competition restriction in bidding for construction and installation have been handled 15 3.2.3 Practice of unfair competition in construction bidding in Vietnam Unfair anti-competitive activities in construction bidding are also not effective Unfair competition acts in construction bidding have not handled any cases according to competition legal proceedings It is only now handled by the ban on participating in biddings and the names of violating contractors due to frauds of bidder's capacity according to the provisions of bidding law 3.3 RESTRICTIONS AND THE CAUSES OF RESTRICTIONS ON COMPETITION ASSURANCE IN BIDDING FOR BIDDING UNDER VIETNAMESE LAW 3.3.1 Restrictions and causes of restrictions on ensuring a healthy competitive environment in Vietnam The practice of acts that not guarantee a healthy competitive environment in bidding, creating barriers to the contractor's participation in construction bidding is considered to be the most serious impact, affecting effective assurance of competition in construction bidding in Vietnam today Because, the bidding organizer can completely eliminate competition in bidding by choosing the form of bidder appointment If the bidder designation cannot be applied, the bidding organizer may apply a limited bidding form, with a limited number of bidders In addition, the organization may use specific criteria for the capabilities, experience of the contractor or goods used in the work to eliminate the participation of unwanted contractors limited participation of contractors, most of whom were contractors at the bid organizers' wishes, had reduced competition An unfair evaluation of bids will make competition among bidders more formal The choice of contractor really depends on the will of the bidding organizer, which is mainly the will of the investor There are many different causes leading to acts of obstructing contractors' participation in construction bidding, failing to ensure a healthy competitive environment in the bidding for construction and installation by the bidding organizer The main reasons include: (1) due to the huge influence and influence of the investor on other entities participating in the bidding; (2) due to the group interests or the sharing of economic benefits, investors and other entities participating in the bidding organization as well as some targeted contractors not want to have the edge real competition in construction bidding; (3) due to the imperfections of the law on ensuring a healthy competitive environment in construction bidding; mechanisms to prevent and 16 prevent acts that not ensure a healthy and ineffective competitive environment; as well as the handling of violations for acts of failing to ensure a healthy competitive environment in construction bidding are not yet effective However, the incomplete law; or lack of preventive and preventive measures; or the failure to handle violations well in recent years, is only a supplementary factor to increase many violations to ensure competition in practice If there is a more complete legal system; or there are many measures to prevent and prevent violations; or the handling of violations more effectively, the handling of violations to ensure competition is more effective only contribute to creating a protective barrier to reduce the violations in practice 3.3.2 Restrictions and causes of restrictions on anti-competitive competition in construction bidding in Vietnam Among anti-competitive acts, the anti-competitive agreement acts are the most serious In the practice of construction bidding in Vietnam, anticompetitive activities in construction bidding are ineffective due to a number of reasons: (1) due to the diversity and complexity of restrictive acts themselves competition in construction bidding; (2) because Vietnam's anticompetition laws still have many limitations; (3) due to ineffective propaganda, dissemination and education of competition laws in the field of construction bidding; (4) due to poor enforcement of law enforcement agencies; (5) due to the participation and support of other state agencies and enterprises, the anticompetitive competition in construction bidding has not been effective 3.3.3 Restrictions and causes of restrictions on unfair competition in construction bidding in Vietnam The acts of unfair competition are of less serious nature compared with the acts of restraint of competition or acts of the bidding organization that not ensure the competitive environment, creating barriers to the participation of investors Bidding on bidding Practices against unfair competition in construction bidding are not effective, originating from the following reasons: (1) due to the law against anti-unfair competition in construction bidding is still limited; (2) due to ineffective propaganda, dissemination and education of competition laws in the field of construction bidding; (3) due to poor enforcement of anti-competitive law enforcement in construction bidding; (4) due to the participation and support of other state agencies, businesses and social communities in the fight against unfair competition in construction bidding, it has not been effective 17 Chapter SOLUTIONS TO PERFECT THE LAW AND IMPROVE EFFICIENCY TO ENSURE COMPETITION IN BIDDING FOR BIDDING ACCORDING TO VIETNAM LAW 4.1 ORIENTATION OF LEGISLATION IMPLEMENTATION TO ENSURE COMPETITION IN BIDDING IN CONSTRUCTION BIDDING IN VIETNAM Orientations to improve the law to ensure competition in construction bidding: (1) Ensure the comprehensiveness, uniformity and uniformity of the law to ensure competition in construction bidding; (2) Ensuring the suitability and feasibility of the law to ensure competition in construction bidding; (3) Ensuring a healthy competitive environment in construction bidding; (4) Ensuring prevention and combat of acts of restricting competition and unfair competition in construction bidding 4.2 SOLUTIONS TO COMPLETE THE LAW TO ENSURE COMPETITION IN BIDDING IN BIDDING IN VIETNAM 4.2.1 Solutions to perfect the law to build a healthy competitive environment in construction bidding Solutions to perfect the law to ensure a healthy competitive environment in construction bidding in Vietnam include: - Prohibiting investors from bidding or directly setting up bid solicitors and providing forcing investors to select contractors through professional intermediary bidding and to apply the bidding method electronic; - Excluding group interests or sharing of interests in construction bidding between the bidding organizer and the participating contractors; - Completing a number of current legal regulations to avoid being taken advantage of by bidding organizers in order to create barriers to contractors' participation in bidding, failing to ensure a healthy competitive environment in bidding, including: (1) stipulating the responsibility of the tender organizer in selecting the appropriate bidding form; (2) it is necessary to abolish the application limit of contractor appointment and stipulate the conditions to apply this form; (3) It is necessary to specify the responsibility to organize 18 consultations between the bidding organizer and relevant associations, contractors, experts before proceeding to formulate the bidding documents Requirements on experience of contractors as well as requirements for equipment and materials used are only specified at the qualitative level, describing the function of materials and equipment without specific quantification , to avoid the use of these criteria restricting bidders from attending The bidding documents should also specify how to assess and convert between Vietnam's national and international standards and regional standards of equipment, technology and materials used to facilitate evaluation fairness to contractors; (4) Regulating the investor's mandatory responsibility for posting information when applying direct bidding, direct procurement, and self-implementation to facilitate supervision in case the investor applies Bidding is not competitive Regulations on the application of electronic supply, acceptance of bidders to submit bids online or electronically; (5) mandate the use of electronic assessment to avoid direct human intervention in the assessment decision; (6) stipulate the authority and procedures for resolving the contractor's petitions, the authority to cancel the contractor selection result 4.2.2 Solutions to perfect the law against anti-competitive acts prohibited in construction bidding - It is necessary to amend and supplement acts of bidding in the Bidding Law 2013 - It is necessary to amend the Crime of violating the provisions on competition in the Penal Code 2015 (amended and supplemented in 2017) in accordance with the Competition Law 2018 4.2.3 Solutions to perfect the law to combat unfair competition acts in construction bidding - It is necessary to abolish the regulations on sanctioning frauds in declaring the capacity of dishonest contractors in the bids specified at Point b, Clause 2, Article 23 of Decree No 50/2016 / ND-CP of June 1, 2016 sanction administrative violations in the field of planning and investment All acts of unfair competition in construction bidding such as frauds in bids, bidding dumping, infringing on business secrets of other contractors or disparaging competitors are handled centrally according to regulations regulations of 19 competition law, sanctioned by the President of the National Competition Commission In order to ensure the principle that each administrative violation act shall be sanctioned only once, it should be clearly stated that handling measures such as elimination of bids, cancellation of bidding, failure to pay bid security, and ban from participation biding, naming violating bidders on the national bidding network system are not administrative sanctions - Need to specify the responsibility of forwarding the breaching case of the bidding organizer, the state management agency on bidding to the National Competition Commission for cases of contractors showing signs of competition violation healthy in bidding 4.3 SOLUTIONS TO IMPROVE EFFICIENCY OF IMPLEMENTING LEGISLATION TO ENSURE COMPETITION IN BIDDING IN CONSTRUCTION BIDDING IN VIETNAM 4.3.1 Strengthen specialization, electronicize the organization of construction bidding It is necessary to build the organization of bidding through state-owned professional bidding centers or bidding agency business enterprises The independence of the bidding center from the investor and the authorized person also contributes to reducing the intervention of the investor and the competent person in the evaluation, evaluation and bid guarantee of the center Bidding is carried out equally With the professionalism of the bidding officers at these centers, with the statistical and warning software, recognizing the collusion phenomenon between businesses, along with the appropriate reward regime for the discoverers violations, will contribute to limit the collusion acts between contractors The application of network and electronic technologies should be implemented in bidding to contribute to cost savings; transparency and publicity of bidding activities, reducing barriers of the bidding organizer to participating contractors; help analyze and evaluate bids to detect frauds and collusion acts in bidding; facilitate fair evaluation of bids 4.3.2 Strengthening training, retraining, propagation, dissemination and education of legal provisions on assurance of competition in construction bidding 20 It is necessary to strengthen the training, fostering, propaganda, dissemination and education of the law on ensuring the right of competition in construction bidding Apart from theoretical training, bidding training skills and skills for people participating in bidding are also essential Especially, the skills to apply electronic technology, to use the online bidding system, the skills to identify competition violations are very new skills, if implemented 4.3.3 Strengthen supervision, examination and inspection of construction bidding activities Need to strengthen the responsibility of supervision, examination and inspection to promptly detect and handle acts of competition violations of contractors in construction bidding Need to develop internal monitoring mechanism and independent monitoring outside the bidding process In order to encourage the supervision and detection of acts of bid rigging and acts of unfair competition, the reward regime may be applied to people with merits of detecting violations Bonuses are deducted from fines for acts of bidding or unfair competition from contractors 4.3.4 Enhancing the coordination between bidding management agencies and competition agencies in combating competition restriction and unfair competition It is necessary to strengthen the cooperation between the State management agencies in charge of construction bidding and the National Competition Commission in training, detecting and promptly handling violations of ensuring competitive competition construction and installation contractors The National Competition Commission shall coordinate training for employees participating in bidding, employees of state management agencies on bidding to identify signs of anti-competitive acts, unfair competition acts On that basis, during the process of bidding, the bidding organizer or the state management agency in charge of bidding is capable of detecting and forwarding it to the National Competition Commission to conduct investigation and handling of violations of competition 21 CONCLUSION Competition in construction bidding is competition in a special market area, contractors compete with each other to win the right to sign and perform construction and installation contracts with investors Competition in construction bidding is always associated with the decisive role of investors (construction shoppers) Ensuring competition in construction bidding according to law means the State's use of law as a tool to establish and maintain a competitive environment in construction bidding and combat against acts of restraint of competition competition, unfair competition in construction bidding The provisions of the law to build a healthy competitive environment, openness and transparency in bidding, removing barriers to the construction market in general as well as barriers to participating in auctions In particular, it is stipulated in specialized laws Provisions on anti-competitive restriction and unfair competition in construction bidding are given priority to apply some provisions of specialized laws on construction bidding, the rest comply with general provisions of law competition law The reality of a healthy competitive environment in construction bidding is not guaranteed General barriers to the market of construction and installation service provision such as requirements for business registration, and construction practice certificates under the current Vietnamese law are not significant The behavior of the tender organizer does not ensure a healthy competitive environment in bidding, creating barriers to the contractor's participation in the bidding for construction and installation which is considered to be the most serious impact act , affecting the efficiency of ensuring competitiveness in construction bidding in Vietnam today Practice of anti-competitive practices and anti-unfair competition in construction bidding is also ineffective Up to now, there has not been any cases of violations of competition restriction and unfair competition in construction bidding The basic causes leading to acts of failing to ensure a healthy competitive environment in bidding, creating barriers to contractors' participation in construction bidding, include: (1) cooperation influence and 22 influence of the investors on other entities participating in the bidding organization; (2) the sharing of interest groups leads to investors and other entities participating in the bidding organization who not want to have real competition in construction bidding; (3) the implementation of the law to ensure a healthy competitive environment in construction bidding; mechanisms to prevent and prevent acts that not ensure a healthy and ineffective competitive environment; as well as the handling of violations for acts of failing to ensure a healthy competitive environment in construction bidding are not yet effective Causes of anti-competitive activities and unfair competition in ineffective construction bidding include: (1) anti-competitive law and antiunfair competition law Construction bidding is still limited; (2) due to ineffective propaganda, dissemination and education of competition laws in the field of construction bidding; (3) due to poor enforcement of anti-competitive law and anti-unfair competition laws in construction bidding; (4) due to the participation and support of other state agencies, businesses and social communities in the fight against anti-competitive competition and unfair competition in ineffective construction bidding Basic orientations for perfecting the law to ensure competition in construction bidding, including: (1) Ensuring the comprehensiveness, uniformity and uniformity of the law on assurance of competition in bidding for construction and installation; (2) Ensuring the suitability and feasibility of the law on ensuring competition in construction bidding; (3) The impact of the investor on the selection of contractors should be limited; limiting cases of conflict of interest in construction bidding to ensure a healthy competitive environment in construction bidding; (4) It is necessary to complete the legal provisions to combat bid collusion Clearly stipulate types of tendering acts and signs of fuller and clearer identification; revising the sanctions for anticompetitive acts in the relevant laws to synchronize with the Competition Law 2018 For anti-unfair competition, it is necessary to further clarify the competence to handle regarding acts of unfair competition in construction bidding 23 Solutions to perfect the law to ensure a healthy competitive environment in construction bidding in Vietnam include: - Prohibiting investors from bidding or directly setting up bid solicitors and providing forcing investors to select contractors through professional intermediary bidding and to apply the bidding method electronic; - Excluding group interests or sharing of interests in construction bidding between the bidding organizer and the participating contractors; - Completing a number of current legal regulations to avoid being taken advantage of by bidding organizers in order to create barriers to contractors' participation in bidding, failing to ensure a healthy competitive environment in bidding, including: (1) stipulating the responsibility of the tender organizer in selecting the appropriate bidding form; (2) it is necessary to abolish the application limit of contractor appointment and stipulate the conditions to apply this form; (3) It is necessary to specify the responsibility to organize consultations between the bidding organizer and relevant associations, contractors, experts before proceeding to formulate the bidding documents Requirements on experience of contractors as well as requirements for equipment and materials used are only specified at the qualitative level, describing the function of materials and equipment without specific quantification , to avoid the use of these criteria restricting bidders from attending The bidding documents should also specify how to assess and convert between Vietnam's national and international standards and regional standards of equipment, technology and materials used to facilitate evaluation fairness to contractors; (4) Regulating the investor's mandatory responsibility for posting information when applying direct bidding, direct procurement, and self-implementation to facilitate supervision in case the investor applies Bidding is not competitive Regulations on the application of electronic supply, acceptance of bidders to submit bids online or electronically; (5) mandate the use of electronic assessment to avoid direct human intervention in the assessment decision; (6) stipulate the authority and procedures for resolving the contractor's petitions, the authority to cancel the contractor selection result Solutions to prevent competition restriction and unfair competition in construction bidding include: (1) amending and supplementing the provisions 24 on common bidding in the Bidding Law 2013; (2) amending provisions on Crime of breaching competition regulations in Penal Code 2015 (amended and supplemented in 2017); (3) amend the legal regulations to unify the jurisdiction of dealing with unfair competition acts in construction bidding; (4) defining the responsibility of forwarding the breaching case of the bidding organizer, the state management agency on bidding to the National Competition Commission for cases of contractors showing signs of unfair competition violation in bidding 10 Solutions to improve the efficiency of reality to ensure competition in construction bidding, including: (1) Strengthening specialization and electronicization of activities of organizing bidding for construction and installation; (2) Strengthen training, retraining, propaganda, dissemination and education of legal provisions on assurance of competition in construction bidding; (3) Strengthen supervision, inspection and inspection of construction and procurement activities; (4) Strengthen the coordination between the bidding management agency and the competition authority in preventing competition and unfair competition LIST OF RESEARCH WORKS Nguyen Huu Manh (2018), "The equal competition rights of contractors in construction bidding", Journal of Economics & Development, No 257 (II) - November 2018 Nguyen Huu Manh (2018), "Determining the status of contractors when participating in construction bidding - International experience and recommendations for Vietnam", Proceedings of the National Science Conference, Home published by National Economics University Nguyen Huu Manh (2018), "Conflicts of interest in construction bidding", Journal of Industry and Trade, No 14- November 2018 Nguyen Huu Manh (2018), "Conditions for application of contractor designation - International experience and recommendations for Vietnam", Journal of Industry and Trade, No 14- November 2018 Nguyen Huu Manh (2018), "Ensuring the right to equal competition in construction bidding according to Vietnamese law", Journal of Science - Hanoi Open University Institute, No 50December 2018 ... construction bidding in Vietnam? The main theories used by the thesis to research and answer the questions include competition theory and bidding theory Competition theory is used to solve the... Competition theory and bidding construction theory are also the basis for reviewing the current provisions of Vietnamese law, which is the basis for making recommendations for completion 7 Chapter THEORETICAL... Vietnam over the last years Theoretical foundation and research methodology The thesis uses the methodology of dialectical materialism and historical materialism The thesis also uses the theoretical
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