Public Procurement – All You Must Know: - Government Contracts, Procurement & PPP

1. What are the three central/federal government entities that have conducted the largest procurements by volume in Vietnam in the last three years? Please, list the three procuring entities in the order of importance.

This information is not published by the government.

2. Please provide a list of laws, regulations, and other binding materials (including guidelines and manuals) that regulate public procurement in Vietnam.

Law No. 43/2013/QH13 on Bidding (Law on Bidding)
Law No. 49/2014/QH13 on Public Investment
Law No. 64/2020/QH14 on Investment in the form of Public – Private Partnership
Law No. 03/2022/QH15 amending and supplementing some of articles of Law on Public Investment, Law on Investment in the form of public-private partnership, Law on Investment, Law on Housing, Law on Bidding, Law on Electricity, Law on Enterprises, Law on Consumption Tax Special and the Law on Execution of Civil Judgments.
Decree No. 95/2020/ND-CP guiding the procurement under the Comprehensive and Progressive Agreement for Trans-Pacific Partnership
Decree No. 09/2022 ND-CP amending and supplementing some articles of Decree No. 95/2020/ND-CP guiding the implementation of procurement under the CPTPP, the EVFTA and the UKVFTA
Decree No. 63/2014/ND-CP detailing the implementation of several provisions of the Bidding Law on the selection of contractor
Decree No. 25/2020/ND-CP detailing the implementation of several provisions of the Bidding Law on the selection of investors
Decree No. 21/2022/TT-BKHDT detailing the preparation of bidding documents for non-consulting services for bidding packages within the scope of the CPTPP, the EVFTA and the UKVFTA
Decree No. 20/2022/TT-BKHDT detailing the preparation of bidding documents for consulting services for bidding packages within the scope of the CPTPP, the EVFTA and the UKVFTA
Circular 09/2022/TT-BYT detailing the sample invitation to bid for procurement of herbal ingredients and traditional medicines at public health facilities
Circular 12/2022/TT-BKHDT detailing the preparation of bidding documents for the procurement of goods for bidding packages within the scope of the CPTPP, the EVFTA and the UKVFTA
Circular No. 15/2022/TT-BKHDT detailing the preparation of bidding documents for construction and installation for bidding packages within the scope of the CPTPP, the EVFTA and the UKVFTA
Circular 08/2022/TT-BKHDT detailing the provision and posting of information on bidding and contractor selection on the National Procurement Network System
Circular No. 09/2022/TT-BGTVT guiding some contents on methods and criteria for evaluating bids for investor selection under the public-private partnership method and the form of a build-operate-transfer contract in the transport sector
Circular No. 23/2021/TT-BGTVT guiding the formulation, approval and publication of the list of projects; methods and criteria for evaluating bids and bidding for selection of investors in specialized aviation service works at airports and aerodromes
Circular 22/2021/TT-BGTVT detailing methods and criteria for evaluating bids to select investors to implement projects on dredging seaport waters and inland waterways in combination with product recovery
Circular No. 06/2020/TT-BKHDT guiding the implementation of Decree No. 25/2020/ND-CP detailing the implementation of a number of articles of the Law on Bidding on investor selection
Circular 15/2020/TT-BYT promulgating the List of drugs for bidding, the List of drugs for concentrated bidding, and the List of drugs eligible for price negotiation.
Circular No. 14/2020/TT-BYT promulgating some contents in bidding for medical equipment at public medical facilities
Circular 15/2019/TT-BYT regulating on drug bidding at public health facilities
Circular No. 10/2015/TT-BKHDT detailing the contractor selection plan
Circular No. 19/2015/TT-BKHDT detailing the preparation of appraisal report during the contractor selection period
Circular No. 23/2015/TT-BKHDT detailing the preparation of evaluation report of bid dossier
Circular No. 16/2016/TT-BKHDT guiding the preparation of pre-qualification dossier, bidding dossier for the investor carrying land use projects

3. Specific instruments applicable to a sector (goods, services or works):

Decree No. 21/2022/TT-BKHDT detailing the preparation of bidding documents for non-consulting services for bidding packages within the scope of the CPTPP, the EVFTA and the UKVFTA
Decree No. 20/2022/TT-BKHDT detailing the preparation of bidding documents for consulting services for bidding packages within the scope of the CPTPP, the EVFTA and the UKVFTA
Circular 09/2022/TT-BYT detailing the sample invitation to bid for procurement of herbal ingredients and traditional medicines at public health facilities
Circular 12/2022/TT-BKHDT detailing the preparation of bidding documents for the procurement of goods for bidding packages within the scope of the CPTPP, the EVFTA and the UKVFTA
Circular No. 15/2022/TT-BKHDT detailing the preparation of bidding documents for construction and installation for bidding packages within the scope of the CPTPP, the EVFTA and the UKVFTA
Circular No. 23/2021/TT-BGTVT guiding the formulation, approval and publication of the list of projects; methods and criteria for evaluating bids and bidding for selection of investors in specialized aviation service works at airports and aerodromes
Circular 22/2021/TT-BGTVT regulating on methods and criteria for evaluating bids to select investors to implement projects on dredging seaport waters and inland waterways in combination with product recovery
Circular 15/2020/TT-BYT promulgating the List of drugs for bidding, the List of drugs for concentrated bidding, and the List of drugs eligible for price negotiation.
Circular No. 14/2020/TT-BYT promulgating a Circular stipulating a number of contents in bidding for medical equipment at public medical facilities
Circular 15/2019/TT-BYT regulating on drug bidding at public health facilities

4. Does the regulatory framework establish value thresholds for determining procedural or regulatory aspects of the procurement process?

Yes (Articles 2.2 and 3.2, Law on Bidding)

5. Is there an operational central electronic public procurement (e-procurement) portal in Vietnam?

Yes (https://muasamcong.mpi.gov.vn)

6. Is the central e-procurement portal used by all the procuring entities?

Yes

7. Please complete the table below based on the features available in the central electronic public procurement portal

Yes, fully digitized Yes, but hard copy

documents must be

submitted No

Registering as a vendor

Accessing notices on procurement opportunities x

Accessing bidding documents

Asking a procuring entity for clarifications

Submitting tenders x

Submitting bid security with electronic validation

Bid opening

Virtual workspace to manage tender procedures (including operative tools for members of the evaluation committee)

Notification of decisions (clarifications, awards, contract signing, etc.) x

Accessing award decisions (including their rationale)

Submitting performance guarantee with electronic validation x

Contract signing x

Accessing contracts x

Accessing contract amendments x

Submitting invoices to the procuring entity x

Module for framework agreement management x

E-catalogue of approved suppliers x

Green catalogue x

E-reverse auction module x

E-contract management and implementation module x

Receiving payments from the procuring entity

Applying for vendor eco-certifications/eco-labels x

Access to specifications, standards, or criteria for eco-labels and environmentally preferable goods and services x

8. Are the features supported by the central e-procurement portal available for procurements of goods, works, and services?

Yes

9. For the following types of data, please select if there is a data portal that provides open access to such information in machine readable format:

Yes No

Data on tenders (including description, dates, category of spending, estimated value, contracting authority, and identification of bidders) x

Data on suppliers x

10. Link to the webpage with data

https://muasamcong.mpi.gov.vn/web/guest/contractor-selection?render=index

11. Are there any main procuring entities for which data on contracts and tenders is not published on the open access data portal?

No.

12. Are gender-disaggregated data on firms that have participated in tenders collected by the central e-procurement portal?

No.

13. Does the regulatory framework require procuring entities to use standard bidding/tender documents when preparing a tender?

Yes, but with some exception.

14. Circumstances the use of model bidding/tender documents is not required.

Based on sector of procurement (Article 4, Circular No. 08/2022/TT-BKHDT)

15. Do these standard bidding documents contain sustainability clauses?

Yes, in all model documents

16. Does the regulatory framework define minimum content requirements for procurement plans?

Yes. (Article 35, Law on Bidding)

17. Do the minimum content requirements for procurement plans include a gender dimension?

No.

18. According to the regulatory framework, which of the following tools must be used when a procuring entity prepares to estimate the contract value of the new procurement opportunity?

Regulations are silent on this matter

19. Is there a legal mandate for the development and implementation of special programs to engage innovative and emerging suppliers?

No.

20. Does the regulatory framework establish open procurement as a default method for tendering a contract?

Yes, but with some exception.

21. Circumstances exceptions to the general rule of using open procurement are provided in the regulatory framework.

Based on the value of procurement and based on the entity conducting the procurement (Articles 21, 22, 23, 24, 26, 26, Law on Bidding)

22. Does the regulatory framework designate specific tendering procedures for innovation procurement?

23. Does the regulatory framework provide incentives for preparing bids with environmentally-friendly components?

No.

24. Does the regulatory framework impose any participation or award restrictions on foreign firms?

Yes, in some public tenders

25. If the restrictions apply only in some public tenders, please identify the parameter in which these restrictions are applicable:

Sector (Article 15, Law on Bidding).

26. Does the regulatory framework require foreign firms to have partnerships with domestic firms to be eligible to participate in a tender?

Yes, in some public tenders (Article 5.1(h), Law on Bidding)

27. Does the regulatory framework require foreign firms to own (fully or partially) subsidiaries in the domestic economy to be eligible to participate in a tender?

No. (Article 5.1, Law on Bidding)

28. Does the regulatory framework prohibit splitting contracts for the purpose of circumventing thresholds for open tendering?

Yes (Article 89.6(k), Law on Bidding)

29. According to the regulatory framework, which of the following documents need to be made publicly available?

Yes, for all contracts Yes, except for low value contracts No

Procurement plans x

Tender notices x

Tender documents (project specific) x

Award decisions Yes x

Contracts x

Contract amendments x

Subcontractors x

30. Please provide the legal basis for all the key materials listed in the table above:

Article 8, Law on Bidding; Article 9, Law on Investment in the form of Public – Private Partnership

31. Does the regulatory framework set a minimum timeframe between advertisement of a tender notice and a submission deadline?

Yes, for all procurement procedures (Article 12.1(b), Law on Bidding)

32. According to the regulatory framework, how should clarification requests from potential bidders be communicated?

Required to communicate answers to all bidders (Article 77.1, Law on Bidding; Article 51.4, Decree No. 35/2021/ND-CP; Article 14.2(c), Decree No. 63/2014/ND-CP)

33. In practice, how many days would usually pass between bid opening, and contract signing (i.e., the time in which all tenderers, participants and relevant parties are notified of the award decision and the awardee can start implementing the contract) for the following scenarios:

Days to complete a procurement of a works contract in an open procedure valued above the threshold for international procurement: 210

Days to complete the procurement of a services contract in a restricted procedure with limited competition, valued below the threshold for international procurement: 210

Days to complete the prequalification of supplier: 0

Days to complete an electronic auction: 45

Days to complete a Framework agreement with a competitive second stage: 0

34. Does the regulatory framework establish criteria for identifying abnormally low bids?

Yes, but only in some procurement procedures (Articles 117.6 and 117.9, Decree No. 63/2014/ND-CP)

35. According to the regulatory framework, which award criteria must be used in bid evaluations for high-value procurement?

Lowest price, Project life cycle cost, Total cost of ownership, Value for money, Most economically advantageous tender, Sustainability (Articles 39 – 41, Law on Bidding)

36. Please indicate whether Lowest price must be used for some or all procurement sectors.

No, applicable to some.

37. Please indicate whether Project life cycle cost must be used for some or all procurement sectors.

No, applicable to some.

38. Please indicate whether Total cost of ownership must be used for some or all procurement sectors.

No, applicable to some.

39. Does the regulatory framework explicitly recommend the preference to use Most Economically Advantageous tender criteria over lowest price criteria?

Yes, but only in some procurement procedures.

40. According to the regulatory framework, should the procuring entity provide a reference price in tender documents?

Yes, but only in some procurement procedures.

41. Does the regulatory framework include gender-specific provisions that promote gender equality in public procurement?

Yes (Article 14.3, Law on Bidding)

42. Does the regulatory framework outline a designated procedure for awarding contracts based on a framework agreement where contracts are awarded following a competitive two-stage process?

No, only one stage is competitive (Article 65, Law on Bidding)

43. Which of the small and medium-sized enterprise preferential treatment approaches are included in the regulatory framework?

None (Article 6 Decree No. 63/2014/ND-CP, Article 14.2.c Bidding Law)

44. Does the regulatory framework mandate communication of an award decision?

Yes, to all bidders ("Articles 42.3, 43.2, 11.8(d), 11.8(dd), Law on Bidding)

45. Is there a mandatory standstill period between the public notice of award and contract signing to allow unsuccessful bidders challenge the decision?

No.

46. Does the regulatory framework establish a timeframe within which a procuring entity must process a payment once an invoice is received?

Yes, for all contracts (Articles 94, 95, 96, 97, 98, Decree No. 63/2014/ND-CP)

47. Does the regulatory framework allow firms to claim interest on late payments (or any similar contractual penalty) if the government does not pay within the legally established timeframe?

Yes (Article 94.1, Decree No. 63/2014/ND-CP)

48. How often does the government pay late payment interest (or any similar contractual penalty) in the event that it fails to meet the payment deadline?

Government often pays late payment interest.

49. Does the regulatory framework designate a specialized and independent authority to receive procurement challenges filed by firms on decisions issued by the procuring entities?

Yes, specialized (Article 92, Law on Bidding)

50. Does an aggrieved bidder have the right to appeal decisions on challenges made by the authority that receives procurement challenges?

Yes (Articles 92.1(c), 92.2(c), 92.3(c), 92.4(c), Law on Bidding)

51. Are there any legally binding time limits to resolve a procurement challenge?

Yes, for all types of challenges (Article 92, Law on Bidding)

52. Is there a legal recourse for an aggrieved bidder experiencing delays in either challenge or review processes?

Yes, for all types of challenges (Articles 91.1(b) and 91.2, Law on Bidding)

Please do not hesitate to contact Dr. Oliver Massmann under omassmann@duanemorris.com if you have any questions or want to know more details on the above. Dr. Oliver Massmann is the General Director of Duane Morris Vietnam LLC.

Disclaimer: This Alert has been prepared and published for informational purposes only and is not offered, nor should be construed, as legal advice. For more information, please see the firm's full disclaimer.

Vietnam: Public Procurement – All You Must Know:

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