SOCIALIST REPUBLIC OF VIET NAM
Independence - Freedom - Happiness
Hanoi, November 29,2005
NATIONAL ASSEMBLY OF THE SOCIALIST REPUBLIC OF VIETNAM
LEGISLATURE XI, SESSION 8
(from 18 October until 29 November 2005)
Pursuant to the 1992 Constitution of the Socialist Republic of Vietnam as amended by Resolution 51-2001-QH10 passed by Legislature X of the National Assembly at its 10th Session on 25 December 2001;
This Law regulates tendering.
Article 1 Governing scope
This Law regulates tendering activities in order to select contractors for provision of consultancy services, for procurement of goods, and for construction and installation for tender packages belonging to the 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;
(b) 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 rural areas;
(d) Projects for scientific research, for development of technology, 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 maintaining regular activities of State bodies, political organizations, socio-political organizations, socio-political-occupational organizations, social organizations, socio-occupational organizations and units of the armed forces.
3. Projects financed by the State for procurement of assets for the purpose of renovation or major repairs to equipment, production lines, building works and factories of State owned enterprises in which investment has already been made.
Article 2 Applicable entities
1. Domestic and foreign organizations and individuals participating in tendering activities for tender packages belonging to the projects stipulated in article 1 of this Law.
2. Organizations and individuals involved in tendering activities for tender packages belonging to the projects stipulated in article 1 of this Law.
3. Organizations and individuals with projects not within the governing scope of this Law may choose to apply this Law.
Article 3 Application of Law on Tendering, related laws, international treaties and international agreements
1. Tendering activities must comply with the provisions of this Law and other related laws.
2. If there are any special matters on tendering stipulated in any other Law, then such Law 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 behalf of the Socialist Republic of Vietnam.
Article 4 Interpretation of terms
In this Law, the following terms shall be construed as follows:
1. Financed by the State means the use of State Budget funds, credit facilities guaranteed by the State, credit facilities for investment and development 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 contractor who satisfies 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, fairness, transparency and economic efficiency.
3. Tendering activities means activities of the parties involved in the process of selecting a contractor.
4. Sequence for implementation of 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 negotiation, finalization and signing of a contract.
5. Domestic tendering means the process of selection of a contractor who satisfies the requirements of the party calling for tenders, in which domestic tenderers participate.
6. International tendering means the process of selection of a contractor who satisfies the requirements of the party calling for tenders, in which both foreign and domestic tenderers participate.
7. Project means a set of proposals for implementing a part or the whole of works aimed at achieving an objective or requirement within a specified period of time and based on a specified financing source.
8. Authorized person means the person with the right pursuant to law to make project decisions. In the case of projects financed by the State as to thirty (30) per cent or more, excluding projects financed by the State as to hundred (100) per cent, the authorized person is the board of management or authorized representative of the capital contributing parties.
9. Investor means the entity owning the financing capital or the entity assigned responsibility to represent such owner, or the borrower directly managing and implementing any project as defined in clause 7 of this article.
10. Party calling for tenders means the investor or a professional organization with sufficient capability and experience in accordance with the law on tendering 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. Head 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 independently is referred to as an independent tenderer. A tenderer participating in tendering jointly with one or more other tenderers to submit the one tender is referred to as a partnership tenderer.
13. Consultancy tenderer means a tenderer participating in tendering for the supply of products, who satisfies the requirements on knowledge and professional experience 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 defined in clause 35 of this article.
15. Construction tenderer means a tenderer participating in tendering for tender packages for construction 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 defined in clause 21 of this article.
17. Sub-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 contractor. A sub-contractor is not a contractor liable for participation in tendering.
18. Domestic tenderer means any tenderer established and operating pursuant to the law of Vietnam.
19. Foreign tenderer means any tenderer established and operating pursuant to the law 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 procurement of similar goods for a number of projects or a one-off procurement in recurrent 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-qualification 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-qualification 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 stipulating 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 tenderer; and also providing the basis for negotiation, finalization and signing of a contract.
25. Tender means all of the documents prepared by a tenderer in accordance with the requirements of the tender invitation documents and submitted to the party calling for tenders in accordance with the provisions in the tender invitation documents.
26. Tender package price means the value of a tender 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 means the price stated by a tenderer in its tender. If a tenderer provides a discount letter, then the tender price is the price after deducting the discount.
28. Proposed contract sum means the sum proposed by the party calling for tenders on the basis of the tender price of the tenderer selected to be awarded the contract after errors have been rectified and discrepancies have been adjusted as required by the tender invitation documents.
29. Winning tender price means the price approved in the results of selection of contractor as the basis for negotiation, finalization and signing of a contract.
30. Equal footing price means the tender price submitted by a tenderer to implement a tender package after errors have been rectified 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 between the parties. The contract must be in accordance with the decision approving the results of selection of contractor.
32. Tender guarantee means the tenderer provides security by one of the 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 tenderer for its tender.
33. Contract performance guarantee means the tenderer provides security by one of the security 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.
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