Decree on Tendering and the Selection of Construction Contractors Amended

On 12 September 2012 the Vietnamese Government issued Decree No. 68/2012/ND-CP (Decree 68) to amend and supplement administrative procedures in Decree No. 85/2009/ND-CP (Decree 85) of 15 October 2009. Decree 85 provides guidelines for the implementation of the Law on Tendering and for selection of construction contractors in accordance with the Law on Construction.

For information about Decree 85, see Mayer Brown's Legal Update "Decree 85 on Tendering and Selection of Construction Contractors" of 8 December 2009.

Changes to the administrative procedures in Decree 85 are set out below with our own italics added.

Changes to procedures for the evaluation and approval of the tendering plan

Decree 68 supplements the composition of a file submitted for the evaluation of the tendering plan. Under Decree 68, the file submitted for the evaluation of the tendering plan will have the same composition as the file submitted for approval of the tendering plan (as prescribed in Article 11.2 of Decree 85).

The file submitted for approval of the results of the tendering plan under Decree 68, among other things, needs to include only a copy of the decision approving the tendering plan, instead of the tendering plan itself.

Changes to procedures for the evaluation and approval of the selection of contractor

Decree 68 supplements the composition of a file submitted for the evaluation of the results concerning the selection of the contractor. The file submitted for the evaluation of the results concerning the selection of the contractor will be the same in composition as the file submitted for approval of the results of selection of the contractor (as prescribed in Article 71 of Decree 85).

The file submitted for approval of the results of the selection of contractor, among other things, now includes just a copy of the decision approving the tendering plan, instead of the tendering plan. Such a file must include, as the case may be, copy of the decision approving the tender invitation documents or set of requirements.

The party calling for tenders will either submit one set of the file for evaluation personally or send it to the address of the evaluating body or organisation.

Procedures for resolving protests concerning the tendering or selection of contractor

The protest application must be signed by the person who signed the tender form (or the legal representative of the tenderer) and sealed (if there is a seal). The protest application must be prepared on the standard form in Appendix I issued with Decree 68.

The tenderer will either submit its protest application personally or send it to the address of the person responsible for resolving protests.

Other changes and supplements

Preparations for tendering:

A notice inviting expressions of interest (including the English version in the case of international tendering) must be published in three consecutive editions of the Tendering Newspaper and on the tendering website, and may simultaneously be published in other mass media.

The request for expressions of interest will be provided free of charge by the party calling for tenders to tenderers wishing to participate. This will apply from the first date on which the request for expressions of interest is published until prior to expiry of the deadline for submitting expressions of interest.

If a request for expressions of interest is not issued in accordance with regulations or if there is any conduct restricting tenderers from receiving the request for expressions of interest, the party calling for tenders will be prohibited from participating in tendering for a period of between six months and one year.

Tenderers can either submit their expressions of interest personally or send them to the address of the party calling for tenders prior to expiry of the deadline for submitting expressions of interest.

Decentralisation of responsibilities for evaluation and approval in tendering:

The Prime Minister of the Government will approve or assign the authorised person to approve a tender package applying the form of direct appointment of contractor in special cases.

Effectiveness

Decree 68 will come into full effect on 1 November 2012.

Conclusion

The Vietnamese Government has taken a step forward with the above changes, which show its determination to increase transparency and simplify administrative procedures. The changes will help facilitate the process of tendering and the selection of construction contractors.

For inquiries related to this Legal Update, please contact John Marsden, Hoang Anh Nguyen, Mai Phuong Nguyen, Cuong Nguyen, Orsolya Szotyory-Grove or your usual contacts with our firm.