NOTABLE NEW POINTS OF THE DRAFT LAW ON BIDDING

The Law on Bidding 2013 has improved and overcome the shortcomings of the Law on Bidding 2005. However, in its implementation, this law has revealed many limitations. Therefore, at the 5th session of the XV National Assembly, the Draft Law on Bidding (amended) was considered with the purpose of updating and amending to suit the actual situation. 

1. Scope of regulation and principles of application

First, Article 1 and Article 2 of the Draft Law on Bidding (amended) stipulate the scope of adjustment, including regulations on state management of bidding, responsibilities of related parties, contractor selection activities with organizations, individuals participating, related to bidding activities.

Secondly, Article 3 of the Draft Law on Bidding (amended) stipulates the principles of application, including such principles as compliance with the provisions of the Law on Bidding and related laws; must apply provisions of international treaties and agreements with donors when selecting contractors for ODA projects; must comply with the provisions of international treaties in cases where the bidding package falls under both the scope governed by national law and international treaties,...

2. Forms of contractor selection

According to the provisions of Article 13, Article 20, Article 22, Article 24, Article 44 and Article 45 of the Draft Law on Bidding (amended), some points to note for forms of investor selection include:

First, international bidding and intra-block bidding are specified in Article 13 of the Draft Law, including conditions for organizing international bidding, intra-bloc bidding as required by capital donors, bidding packages only with the interest of foreign investors,...

Secondly, the appointment of bidders is stipulated in Article 20 of the Draft Law. Accordingly, bidding appointment is a form of investor selection in which the investor or the inviter issues the required dossier to the contractor or sends the draft contract to the contractor who is considered competent to execute the bidding package.

Third, direct procurement is stipulated in Article 22 of the Draft Law, according to which this provision can be omitted or followed by two options in Article 22.

Fourth, the selection of contractors and investors in special cases where the forms of selection in Articles 19, 20, 21, 22, 23 and 25 cannot be applied stipulated in Article 24 of the Draft Law, accordingly, the selection of contractors must be considered by the Prime Minister, decide on the basis of appraisal by the Ministry of Planning and Investment.

Fifth, centralized procurement is stipulated in Articles 44 and 45 of the Draft Law. Accordingly, centralized procurement is a way to gather the needs of many investors and tenderers to select contractors through centralized procurement units to reduce costs, time and focal points for organizing bidding,... shall be applied in forms such as broad bidding, competitive offers with bidding packages meeting the provisions of Article 21,..

3. Costs in contractor selection

Costs in contractor selection are specified in Clause 1, Article 11 of the Draft Law as follows:

According to option 1, costs include bidding costs (costs for preparing dossiers of interest, prequalification, bidding,...), costs for posting information about bidding,  the cost of participating in the National Procurement Network System, costs related to the contractor selection process are determined in the total investment or procurement estimate.

Under option 2, costs include bidding costs (costs for preparing interest documents, pre-qualification, bids,...). In particular, bidding dossiers and request dossiers are distributed free of charge to domestic bidders, while international contractors must pay money to buy electronic copies of bidding dossiers and request dossiers when submitting bid dossiers and proposal dossiers. In addition, this option still includes the remaining costs such as the cost of posting information about bidding, the cost of participating in the National Procurement Network System,...

It can be seen that the provisions of the Draft Law on Bidding (amended) are still in the process of receiving comments for development and completion. Some provisions of the Draft still need to be adjusted and clarified, such as the mechanism for organizing the selection of contractors of state-owned enterprises needs to be clarified according to specific plans, it is necessary to supplement the principle of legal application in Clause 5, Article 3 of the Draft, ...