{"id":1006,"date":"2020-03-18T09:50:24","date_gmt":"2020-03-18T02:50:24","guid":{"rendered":"http:\/\/blogs.duanemorris.com\/vietnam\/?p=1006"},"modified":"2020-03-18T09:51:46","modified_gmt":"2020-03-18T02:51:46","slug":"the-world-bank-is-asking-duane-morris-on-government-and-public-procurement-here-are-our-answers","status":"publish","type":"post","link":"https:\/\/blogs.duanemorris.com\/vietnam\/2020\/03\/18\/the-world-bank-is-asking-duane-morris-on-government-and-public-procurement-here-are-our-answers\/","title":{"rendered":"THE WORLD BANK IS ASKING DUANE MORRIS ON GOVERNMENT AND PUBLIC PROCUREMENT HERE ARE OUR ANSWERS:"},"content":{"rendered":"

1. Legal framework and reform update<\/strong><\/p>\n

1. Which is the entity that conducts procurement for the authority that owns the majority of roads in Vietnam ?
\nHo Chi Minh City’s People Committee <\/p>\n

2. Are you aware of any change (in practice or in laws\/regulations\/procedures) related to public procurement between June 1, 2017 and May 1, 2018? For example: amendments to applicable public
\nprocurement laws, enactment and\/or implementation of new regulations, implementation or improvement of e-procurement platforms, changes to the bid security and performance guarantee framework, etc.
\nNo<\/p>\n

3. Please provide a list of the laws, regulations and other binding materials (including mandatory standard procurement documents and contracts) that regulate public procurement in Vietnam.
\nPlease include legislation or other binding materials promulgated at the national\/federal level as well as any additional legislation that is applicable to the procuring entity described in Section 1.The Civil Code of Vietnam No. 91\/2015\/QH13 by the National Assembly of Vietnam dated 24 November2015 (“Civil Code”);<\/p>\n

Construction Law No. 50\/2014\/QH13 by the National Assembly dated 18 June 2014 (“Construction Law”);<\/p>\n

Law on Bidding No. 43\/2013\/QH13 by National Assembly dated 26 November 2013 (“Bidding Law”);<\/p>\n

Law on Public Investment No. 49\/2014\/QH13 of the National Assembly dated 18 June 2014 (“Law on
\nPublic Investment”);<\/p>\n

Commercial Law No. 36\/2005\/Qh11 by the National Assembly dated 14 June 2005 (“Commercial Law”);<\/p>\n

Decree No. 63\/2014\/ND-CP by the Government dated 26 June 2014 guiding Law on Bidding (“Decree No.63\/2014\/ND-CP”);<\/p>\n

Decree No. 37\/2015\/ND-CP by the Government dated 22 April 2015 on detailing construction contracts
\n(“Decree No. 37\/2015\/ND-CP”);<\/p>\n

Decree No. 46\/2015\/ND-CP by the Government dated on 12 May 2015 on managing the quality and
\nmaintenance of construction works (“Decree No. 46\/2015\/ND-CP”);
\nDecree No. 30\/2015\/ND-CP by the Government dated 17 March 2015 on detailing certain provisions of the Law on Bidding on selection of bidders (“Decree No. 30\/2015\/ND-CP”);<\/p>\n

Decree No. 15\/2015\/ND-CP by the Government dated 14 February 2015 on public-private partnership investment (“Decree No. 15\/2015\/ND-CP”);<\/p>\n

Circular No. 04\/2017\/TT-BKHDT by the Ministry of Planning and Investment dated 15 November 2017 on detailing the selection of bidders via the national biding portal (“Circular No. 04\/2017\/TT-BKHDT”);<\/p>\n

Circular No. 26\/2016\/TT-BXD by the Ministry of Construction dated 26 October 2016 on detailing certain provisions on management of quality and maintenance of construction works (“Circular No. 26\/2016\/TTBXD”);<\/p>\n

Circular No. 10\/2016\/TT-BKHDT of the Ministry of Planning and Investment on detailing the supervision, following up and examination of bidding activities (“Circular No. 10\/2016\/TT-BKHDT”);<\/p>\n

Circular No. 23\/2015\/TT_BKHDT by the Ministry of Planning and Investment dated 21 December 2015 on detailing the making the evaluation report on bidding documents (“Circular No. 23\/2015\/TTBKHDT”);<\/p>\n

Circular No. 10\/2015\/TT-BKHDT of the Ministry of Planning and Investment dated 26 October 2015 on detailing the plan for bidder selection (“Circular No. 10\/2015\/TT-BKHDT”);<\/p>\n

Circular No. 01\/2015\/TT-BKHDT by the Ministry of Planning and Investment dated 14 February 2015 on detailing the preparation of Invitation dossier for Concern, Invitation Dossier for Bidding, and Request dossider for consultancy services (“Circular No. 01\/2015\/TT-BKHDT”);<\/p>\n

Circular No. 17\/2010\/TT-BKH by the Ministry of Planning and Investment dated 22 July 2010 detailing a pilot online bidding program (“Circular No. 17\/2010\/TT-BKH”);<\/p>\n

Official Letter No. 5356\/BKHDT-QLDT by the Ministry of Planning and Investment dated 18 August 2014 on registration of bidder’s information on national bidding network system;<\/p>\n

Official Letter No. 4962\/BKHDT-QLDT by the Ministry of Planning and Investment dated 31 July 2014 on the implementation of Law on Bidding No. 43\/2013\/QH13 regarding investors selection;<\/p>\n

Official Letter No. 4054\/BKHDT-QLDT by the Ministry of Planning and Investment dated 7 June 2014 on implementation of Law on Bidding No. 43\/2013\/QH13 and Decree No. 63\/2014\/ND-CP;<\/p>\n

Official Letter No. 5186\/BKHDT-QLDT by the Ministry of Planning and Investment dated 11 August 2014 guiding to carry out to provide and publish bidding information in the transitional period.<\/p>\n

4. Please list any mandatory standard tender documents and\/or standard contract terms that the Procuring Entity must use for a contract like the one described in Section 1.
\nContract terms must specify:
\na\/ Applied legal bases;
\nb\/ Language used in the contract,
\nc\/ Content and volume of work;
\nd\/ Quality, technical requirements of work; pre-acceptance test and handover;
\ndd\/ Contract performance duration and schedule;
\ne\/ Contract price, advance payment, currency used in payment, and payment for the contract;
\ng\/ Contract performance security, contract advance guarantee;
\nh\/ Adjustment of the construction contract;
\ni\/ Rights and obligations of the parties to the construction contract;
\nk\/ Liability for violations of the contract, rewards and fines for violations of the contract;
\nl\/ Suspension and termination of the contract;
\nm\/ Settlement of disputes over the contract;
\nn\/ Risks and force majeure events;
\no\/ Settlement and liquidation of the contract;
\np\/ Other contents.\u2002\u2002\u2002\u2002<\/p>\n

5. Are you aware of any change (in practice or in laws\/regulations\/procedures) related to public procurement between May 2, 2019 and May 1, 2020? For example: amendments to applicable public procurement laws, enactment and\/or implementation of new regulations, implementation or improvement of e-procurement platforms, changes to the bid security and performance guarantee framework, etc.\u2002
\nNo<\/p>\n

2. E-procurement Platforms and Statistics<\/strong><\/p>\n

6. If one or several electronic procurement portal(s) (i.e., an official website(s) specifically and exclusively dedicated to public procurement) are in operation, please mark which platform would most commonly be used by the Procuring Entity.
\nNational level – Link: www.muasamcong.mpi.gov.vn<\/p>\n

7. If a procurement portal is used by the procuring entity, how many works contracts are procured
\nthrough the portal?
\nMore than 75%<\/p>\n

8. If electronic procurement portals are available, please indicate which of the following actions can
\nbe performed through each portal:
\nAccessing notices on procurement opportunities: Procuring entity and bidders
\nAccessing tender documentation: Procuring entity and bidders
\nAccessing tender documentation: Procuring entity and bidders
\nAsking the procuring entity for clarifications: Bidders
\nSubmitting tenders: Bidders
\nSubmitting bid security: Bidders
\nOpening bids: Procuring entity
\nNotifying decisions (clarification, award,etc.): Procuring entity
\nAccessing award decisions: Procuring entity and bidders
\nAccessing explanations of award decisions: Procuring entity and bidders
\nSubmitting performance guarantees: Bidders
\nSigning the contract: Procuring entity and bidders<\/p>\n

9. Which of the following information about road works contracts procured by the Procuring Entity is made publicly available?<\/p>\n

Phases of the Procurement Process<\/strong><\/p>\n

This section of the questionnaire follows the chronological evolution of a procurement cycle, starting with the process the Procuring Entity undertakes to assess its needs and secure the budget. Section 4 also explores the steps that a local company would have to undertake in order to: (i) secure a government contract; (ii) deliver the agreed-upon works; and (iii) obtain payment.<\/p>\n

Phase 1: Budgeting and Needs Assessment
\nFor the definition of \u201cprocuring entity\u201d, please refer to Section 1.<\/p>\n

10. According to the legal framework, when the Procuring Entity prepares to advertise a new procurement opportunity for a contract like the one described in Section 1, what are used to estimate the contract value and projected length of works?
\nMarket analysis, Standardized unit cost, Project-specific technical drawings, Similar projects from previous years, price evaluation result by authorized state agency or price evaluation enterprise for assets, goods and services subject to price evaluation under the Law on Price.<\/p>\n

11. In practice, is the estimated contract value\/budget published in the tender notice\/tender documents?
\nYes, contract value<\/p>\n

12. Is the Procuring Entity required to have already allocated budget to a specific project before tendering?
\nYes, there is a specific budget allocatior Comment:<\/p>\n

13. How often does the Procuring Entity award a contract without having all the necessary funds?
\nRarely (between 10-25%)<\/p>\n

Phrase 2: from Advertisement to Bid Submission<\/strong><\/p>\n

The following questions relate to the initial phase of the procurement process, focusing on how the procurement method is chosen, how the tender is advertised, and how bids are collected from the private sector.<\/p>\n

14.According to the legal framework, would open tendering (i.e., the process in which any business
\ncan submit a bid) be the default method of procurement in Vietnam for a contract like the one
\ndescribed in Section 1?
\nNo, Section 1, Chapter 2 of the Bidding Law<\/p>\n

15. According to the legal framework, can the Procuring Entity require bidders to participate in a prequalification process specific to that contract before being able to submit their economic offer?
\nYes. Article 22 and 24 of Decree 63\/2014\/ND-CP<\/p>\n

16. In practice, what is the most common method of procurement for a contract like the one described in Section 1?
\nOpen tendering is not the default, but remains the most common for a case comparable to the case study.<\/p>\n

17. Does the legal framework define the situations in which open tendering must be used (including
\nthresholds)? If the legal framework regulates exceptions to open tendering, please list them.
\nYes. Article 20 of the Bidding Law. Exceptions to open tendering are cases under restrictive tendering,
\ndirect award, competitive dialogue, direct procurement, self-implementation, community’s and participation selection of bidders in some special cases (Articles 21-27 of the Bidding Law)<\/p>\n

18. Does the legal framework prohibit dividing contracts to circumvent thresholds for open
\ntendering?
\nYes. Article 89.6 (k) of the Bidding Law<\/p>\n

In practice, how often does this happen?
\nVery rarely (< 10% of cases)<\/p>\n

19. Which of the following materials need to be made publicly available by the procuring entity?
\nBy law and Publicly available in practice
\nProcurement plans: Article 8.1 of the Bidding Law
\nTender notices: Article 8.1 of the Bidding Law
\nTender documents and technical specifications: Article 8.1 of the Bidding Law
\nNotices of award \/ bidding results: Article 8.1 of the Bidding Law<\/p>\n

Tender Notices & Tender Documents<\/strong><\/p>\n

20. According to the legal framework, is there a minimum time limit between the advertisement of
\nthe tender notice and the submission deadline for an open tendering procedure like the one described in Section 1?
\nYes. Article 12.1.e of the Bidding Law<\/p>\n

In practice, how many days would pass between the advertisement of the tender notice and the
\nsubmission deadline for a case like the one described in Section 1?
\n30 -40 days<\/p>\n

21. Does the legal framework establish the minimum content of the tender notice and tender
\ndocuments? If “Yes”, please list the requirements.
\nYes. <\/p>\n

Articles 8 of Bidding Law:
\na) The plan on selection of contractors, investors;<\/p>\n

b) Notice of invitation for expression of interest, notice of invitation for pre-qualification;<\/p>\n

c) Notice of invitation for quotation, notice of bid invitation;<\/p>\n

d) Short list;<\/p>\n

dd) Results of selection of contractors, investors;<\/p>\n

e) Results of bid opening for bidding via network;<\/p>\n

g) Information on handling of violations of law on bidding;<\/p>\n

h) Legal documents on bidding;<\/p>\n

i) List of investment projects in the form of public-private partnership, projects with land use;<\/p>\n

k) The database of bidders, investors, bidding experts, lecturers of bidding, and establishments of training on bidding;<\/p>\n

l) Other relevant information.<\/p>\n

Subcontracting<\/strong><\/p>\n

22. Does the legal framework regulate subcontracting?
\nYes. Article 128.2 of Decree No. 63\/2014\/ND-CP<\/p>\n

23. According to the legal framework, if the intent to subcontract was not disclosed in the bid, what is the contractor who decides to subcontract after the contract is signed required to do?
\nThe matter is not regulated. <\/p>\n

Clarifications<\/strong><\/p>\n

24. When a potential bidder seeks clarifications on the tender documents from the procuring entity,
\nwhat is the most common way of addressing them?
\nThe procuring entity addresses all clarifications in a public meeting.
\nThe procuring entity will answer, and it is always required to communicate the answer to all other bidders
\ntoo – Legal basis: Article 14.2 (c) of Decree No. 63\/2014\/ND-CP<\/p>\n

Bid Security<\/strong><\/p>\n

25. Does the legal framework require BidCo to provide a form of bid guarantee?
\nYes. Article 11.1 of the Bidding Law<\/p>\n

26. If BidCo is required, what is the most common instrument of bid security deposit?
\nCash\/Bank guarantee \/ letter of credit<\/p>\n

Phase 3: from Bid Opening to Contract Signing<\/strong><\/p>\n

The following questions relate to bid opening, bid evaluation, exclusions and contract signing. When
\nanswering these questions, please continue to refer to the case study assumptions outlined in Section 1. <\/p>\n

For the definition of \u201cprocuring entity”, please refer to Section 1.<\/p>\n

27. Does the legal framework establish a timeframe for the procuring entity to proceed to bid opening once the deadline for bid submission has been reached?
\nYes. Article 14.3(b) of Decree No. 63\/2014\/ND-CP
\nIn practice, how many days after the deadline for bid submission does the Procuring Entity proceed to bid opening? If bid opening is carried out in multiple sessions, please answer this question considering the first session. If bid opening happens immediately, please indicate 0 days.
\n0 days<\/p>\n

28. In practice, in a case comparable to the case study scenario, how many days would pass between
\nbid opening and public notice of award (i.e., the moment in which all tenderers, participants and
\nrelevant parties are notified of the award decision), considering that no complaint\/challenges\/protests
\nhave been filed? In this estimate, please include the time to evaluate the bids, notify all bidders of the
\ndecision and notify the winner of the award. If there is no public notice, please indicate the time until
\nnotification of BidCo.
\nTime: 45 \u2013 60 days. Main reasons for delay: The bidder selection result must be verified or there needs
\nsome amendments to the bidding dossiers\/ documents.<\/p>\n

29. Is there a standstill (or pause) period between public notice of award and contract signing to
\nallow unsuccessful bidders to challenge the award decision?
\nNo<\/p>\n

30. In practice, in a case comparable to the case study scenario, how many days would pass on average between public notice of award and contract signing? Please include the time for the winner to submit relevant documents and the time to sign the contract.
\nTime: 20 \u2013 25 days<\/p>\n

31. In practice, how many days would pass on average between contract signing and receipt of a
\nnotice to proceed with the works?
\nTime: 0 days or upon receipt of the performance security by the procuring entity.
\nMain reasons for delay: No receipt of the performance security<\/p>\n

Does BidCo need to obtain work permits or other administrative authorizations between public notice of award and contract signing? Please include environmental permits, occupancy permits, activity permits, etc. as applicable.
\nNo<\/p>\n

Evaluation & Award<\/strong><\/p>\n

32. Does the legal framework regulate how members of the selection committee are chosen?
\nYes. Article 116, Decree No. 63\/2014\/ND-CP<\/p>\n

33. Are employees of the procuring entity required to follow a mandatory code of conduct or ethics
\nthat includes topics like screening procedures, conflict of interest, training requirements, etc.?
\nNo. Not mentioned in the laws<\/p>\n

34. According to the legal framework, what would be the award criterion considering a case like the
\none described in Section 1?
\nPrice – Legal basis: Article 39.1 of the Bidding Law
\nPrice and other qualitative elements (i.e., best value for money or the most advantageous combination of
\ncost, time to completion, quality and sustainability, or the most economically advantageous tender) – Legal
\nbasis: Article 39.2 of the Bidding Law
\nOther, please explain: Combination of technical and price assessment (Article 39.3 of the Bidding Law)<\/p>\n

35. In practice, how often is the award decision based solely on price and not on best value for money?
\nVery rarely (<10% of cases)<\/p>\n

36. Does the legal framework establish criteria to identify abnormally low bids?
\nNo<\/p>\n

37. Does the legal framework define what constitutes a non-substantial error?
\nYes, Article 17, Decree 63\/2014\/ND-CP<\/p>\n

In practice, how often does the Procuring Entity require bidders to amend their offers (because of mistakes, arithmetic errors, etc.)?
\nOccasionally (between 25-50%)<\/p>\n

In practice, in these cases would the bidder be given the opportunity to rectify such error before dis-qualification?
\nYes, Article 17, Decree no. 63\/2014\/ND-CP<\/p>\n

Exclusion & Loss<\/strong><\/p>\n

38. When a bidder is unsuccessful (either because of exclusion or loss), is it provided with an
\nexplanation of the reasons for the exclusion\/loss in writing?
\nYes, by law the bidder must always be provided with an explanation in writing, according to Article 20.6 (b) of Decree No. 63\/2014\/ND-CP; within 5 workings days from the time the bidding result is approved.<\/p>\n

If \u201cYes\u201d, is the bidder usually told early enough so that it can challenge the exclusion\/loss in a
\ntimely manner?
\nYes<\/p>\n

39. When a bidder loses, is it provided with an explanation of the reasons for the loss in writing?<\/p>\n

Yes, the bidder must always be provided with an explanation in writing, according to Article 20.6(b) Decree no.63\/2014\/ND-CP<\/p>\n

Phase 4: Contract Management<\/strong><\/p>\n

Performance Guarantee<\/p>\n

40. According to the legal framework, is BidCo required to provide a performance guarantee deposit that ensures a source of compensation in case of failure to perform its contractual obligations?
\nYes. Amount: 2%- 10% of the bid winning price.
\nArticles 66 & 72 of the Bidding Law.<\/p>\n

41. If BidCo is required, what is the most common instrument of performance guarantee?
\nCertificate of deposit
\nBank Guarantee \/ Letter of Credit
\nPayment retention until satisfactory completion of the contract<\/p>\n

42. In practice, how long does it usually take for the procuring entity to return the performance
\nguarantee in full once the certificate of completion of works is issued?
\n5-10 days<\/p>\n

Contract Renegotiations \/ Amendments<\/p>\n

43. Does the legal framework regulate contract renegotiation? If “Yes”, please indicate the relevant
\nprovisions.
\nYes. Article 67 of the Bidding Law and Article 93 of Decree No. 63\/2014\/ND-CP<\/p>\n

44. How often would a contract like the one described in Section 1 be renegotiated?
\nOccasionally (between 25-50%)<\/p>\n

45. If the contract described in Section 1 were more complex (i.e., lengthier and\/or more costly
\nexecution, more complex scope or object, etc.), how often would it be renegotiated?
\nOften (between 50-90%)<\/p>\n

46. According to the legal framework, is there a percentage of price increase below which the
\nprocuring entity is not required to provide a reason for the renegotiation? If “Yes”, please provide the percentage and the relevant legal basis.
\nNo.<\/p>\n

47. According to the legal framework, is there a percentage of price increase above which the
\nprocuring entity is not allowed to renegotiate and is always required to re-tender? If”Yes”, please
\nprovide the percentage and the relevant legal basis.
\nNo.<\/p>\n

48. In practice, are the results of contract renegotiations made publicly available?
\nNo. Not addressed by law but practically No<\/p>\n

49. In practice, how many days would pass on average from the moment one of the parties requests\/ initiates a renegotiation of the contract until a new contract amendment is signed?
\nIt varies upon the negociation <\/p>\n

50. How often do bidders submit unrealistically low bids to win the contract, confident of having a possibility to renegotiate at a later stage?
\nOccasionally (25-50%)<\/p>\n

51. How often are “emergencies” used as a reason to renegotiate?
\nVery rarely (<10% of cases)<\/p>\n

52. How often would a changing (variation) order\/price adjustment (i.e. a modification below a certain threshold or clearly defined in the terms of the contract) take place in a contract like the one described in Section 1?
\nOccasionally (25-50%)<\/p>\n

In practice, how many days would pass on average from the moment that the modification becomes necessary until a changing (variation) order\/price adjustment is issued?
\n20-30 days<\/p>\n

53. How often would additional works related to the initial contract (i.e. works by the original contractor that have become necessary and that were not included in the initial procurement) be awarded to the same contractor through direct award?
\nOccasionally (25-50%)<\/p>\n

In practice, how many days would pass on average from the moment additional works become necessary until they are awarded to the same original contractor?
\n30 days<\/p>\n

Phase 5: Payment, Delays and Quality Assessment<\/strong><\/p>\n

The following questions relate to payment and inspections. <\/p>\n

Payment<\/p>\n

54. According to the legal framework, is there a limit to how much the procuring entity can pay
\nupfront for the contractor to hire workers, buy materials, and start operations, in a contract like the one described in Section 1?
\nNo.<\/p>\n

In practice, how much would usually be paid upfront for a contract like the one described in Section 1?
\nMinimum 10% of the contract value, maximum 50% of the contract value.<\/p>\n

In practice, if an advance payment is usually issued, does the contractor have to provide a guarantee for receiving this payment?
\nYes<\/p>\n

In practice, how many calendar days will be necessary for BidCo to receive the advance payment once the request has been submitted to the Procuring Entity?
\n10-20 days<\/p>\n

55. During the execution of the contract, does the legal framework establish a timeframe within which the procuring entity must process the payment once an invoice is received?
\nYes. Article 19 of Decree No. 37\/2015\/ND-CP<\/p>\n

In practice, how many calendar days will be necessary on average for BidCo to receive
\npayment once the invoice has been delivered to the relevant authority?
\nMaximum 14 days<\/p>\n

In practice, how many people would need to authorize payment within the procuring entity
\nbefore payment is made?
\n2<\/p>\n

In practice, how often will BidCo receive payment within the timeframe established by the
\nlegal framework?
\nOften (between 50-90%)<\/p>\n

According to the legal framework, is the company entitled to claim interest on late payments
\nif the procuring entity does not pay within the legally – established timeframe?
\nYes. Article 94 of Decree No. 63\/2014\/ND-CP<\/p>\n

If so, in practice how often would such interest be paid to the company?
\nOccationally (between 25-50%)<\/p>\n

In practice, for a contract like the one described in Section 1, how many days would pass on average between the moment BidCo notifies the Procuring Entity that the works are completed and a formal agreement between them stipulating that the works are indeed finished and comply with the contract specifications (i.e. a certificate of completion of works)? Please include the time for the Procuring Entity to conduct a final inspection.
\n7-14 days<\/p>\n

How often do disagreements between the Procuring Entity and BidCo on the completed works delay the process of reaching a formal agreement that the works are finished?
\nOccationally (between 25-50%)<\/p>\n

In practice, by how many days would the time you indicated in Q.55.f be extended to resolve this disagreement and obtain a certificate of completion of works from the Procuring Entity?
\n30 days<\/p>\n

56. Assuming that BidCo delivers works complying with the quality standards agreed-upon in the
\ncontract, within budget and on time, what strategies, if any, does the procuring entity use to delay or avoid payment?
\nBureucracy\/paperwork inspections <\/p>\n

In practice, how often does the procuring entity not pay?
\nVery rarely (< 10% of cases)<\/p>\n

In practice, how often is a portion of the payment retained to guarantee the works for a predetermined amount of time?
\nVery rarely (< 10% of cases)<\/p>\n

Inspections & Warranties<\/strong><\/p>\n

57. Does the procuring entity have guidelines or protocols regulating inspections on the quality of the works?
\nYes. Articles 6, 8, 9 of Circular No. 26\/2016\/TT- BXD<\/p>\n

58. Which of the following is true for a contract like the one described in Section 1? Please select the most common option only.<\/p>\n

\uf06f\tInspections are carried out before every payment
\n\uf06f\tInspections are carried out before some – but not all – payments
\n\uf06f\tInspections are carried out routinely, but are not connected with payments
\n\uf0fe\tInspections are carried out randomly
\n\uf06f\tOnly one final inspection is conducted
\n\uf06f\tNo inspections are conducted Comment<\/p>\n

59. Upon completion of the works, does the legal framework require BidCo to guarantee the works
\nfor a certain period of time?
\nYes. Articles 35-36 of Decree No. 46\/2015\/ND-CP<\/p>\n

61. If BidCo is required, what is the most common instrument of post-completion guarantee?<\/p>\n

Payment retention<\/strong><\/p>\n

62. In practice, how long after completion of the works is BidCo required to maintain the instrument
\nthat guarantees them?
\n12- 18 months<\/p>\n

Delays & Overruns<\/strong><\/p>\n

63. In practice, how often are the works delivered within the original deadline?
\nOften (between 50-90%)<\/p>\n

64. In practice, if delays are common, what are the main reasons for them?
\nBurdensome administrative processes within the procuring entity
\nCapacity of the procuring entity (staff\/skills\/budgetary constraints)
\nCapacity of the contractor (technical\/financial\/managerial\/human capital constraints)
\nPoor planning on the procuring entity’s side (poorly designed project specifications, etc.)
\nPoor planning on the contractor’s side<\/p>\n

65. In practice, how often are the works delivered within the original budget?
\nOccasionally (between 25-50%)<\/p>\n

66. In practice, if cost overruns are common, what are the main reasons for them?
\nMarket conditions (changes in input prices, fluctuations in exchange rate, etc.)
\nBurdensome administrative processes within the procuring entity
\nCapacity of the contractor (technical\/financial\/managerial\/human capital constraints)
\nPoor planning on the procuring entity’s side (poorly designed project specifications, etc.)
\nPoor planning on the contractor’s side<\/p>\n

5. Formal Challenges throughout the Procurement Process
\nIn answering, please refer to the Procuring Entity you selected in Q. 1.
\nChallenging the contract award
\nIn answering the following questions please assume that:
\n\u2022\tThe Procuring Entity you selected in Q.1 has awarded a works contract to BidCo.
\n\u2022\tThree companies challenge the award on the following grounds:
\no\tCompany 1 argues that BidCo submitted a recklessly low bid that should\thave been excluded.
\no\tCompany 2 argues that one of the evaluation criteria was used arbitrarily by the\t Procuring Entity to reduce the Company’s final score.
\no\tCompany 3 argues that the technical project they submitted met the minimum standards established by the tender documents and should not have been excluded.
\nAssume all challengers submit their claims within the legal deadlines, free of mistakes, pay the fees associated with their challenges, and pursue their claims until no further legal remedy is available. Please include all administrative, judicial and quasi-judicial authorities that may be involved in the process.<\/p>\n

67. According to the legal framework, who has legal standing to challenge the contract award?
\nBidders
\nLegal basis:
\nFIRST
\nINSTANCE\ta. Which authority would hear the challenge? If more than one is possible, please list all relevant authorities and specify which one a complaining party would most commonly choose.\tInvestor of the project
\n\tb. How often would the award of a road works contract rendered by the Procuring Entity be challenged?\tBetween 10-25% of cases
\n\tc. Calendar days in practice between the moment a challenge is filed and the day the complaining party receives a decision.\t30-45 business days
\n\td. Would the challenge suspend the procurement process?\tNo, the procurement process would con
\nSECOND
\nINSTANCE\ta. To which authority would the first instance decision be appealed?\tInvestor of the project
\n\tb. How often would the first instance decision be appealed?\tBetween 10-25% of cases
\n\tc. Calendar days in practice between the moment the decision is appealed and the day the complaining party receives a decision.\t10-20 days
\n\td. Would the appeal suspend the procurement process?\tNo, suspension is discretionary but NO’
\nTHIRD
\nINSTANCE\ta. To which authority would the second instance decision be appealed?\t Not available
\n\tb. How often would the second instance decision be appealed?\tNot available
\n\tc. Calendar days in practice between the moment the decision is appealed and the day the complaining party receives a decision.
\n\td. Would the appeal suspend the procurement process?\t Not available
\n68. If more than 3 instances of review are available, please list the authorities and resolution times for all further tiers of review.\tNot available<\/p>\n

Research – Criticalities of the Procurement Process<\/strong><\/p>\n

69. How often are the following strategies used by the procuring entity to circumvent public
\nprocurement rules?
\nNot advertise procurement opportunities long enough to minimize competition: 10-25%
\nPrioritize projects without sufficient motivation just to benefit a particular bidder. : 10-25%
\nPrioritize non-competitive tenders to restrict market entry. : 10-25%
\nDefine technical specifications to benefit a specific bidder. : >90%
\nHold informal meetings with individual bidders: >90%
\nUnilaterally change some of the tendering requirements after the bid is opened, but before the contract is signed: <10% of cases
\nBiased interpretation of the selection criteria.: 25-50%
\nChange the award criteria after the bids are opened: <10% of cases
\nAdd specific obligations in the contract that were not previously incorporated in the tender documents, and by doing so impose unnecessary burdens on the contractor.:<10% of cases
\nDelay payments to the contractor to request other works not included in the tender documents:<10% of
\ncases
\nDelay the certification of completion of the contract to obtain other works\/goods\/services not previously
\nincluded in the tender documents:<10% of cases
\nUnilaterally and arbitrarily terminate the contract:<10% of cases<\/p>\n

70\/ How often are the following strategies used by private sector companies to circumvent public
\nprocurement rules?
\nCollusion between bidders (cover bidding, bid suppression, bid rotation, market allocation). .:<10% of cases
\nCollusion with the procuring entity, to negate market entry to other competitors: 50-90%
\nSubmission of recklessly low bids to win the tender. 10-25%
\nFalsification of documents or failure to disclose essential information in the bidder's offer. 10-25%
\nInformally paying public officials: 50-90%
\nAbuse the renegotiation process to increase the price or the scope of the project without another competitive process. .: 50-90%
\nDelay the execution of the contract to coerce the procuring entity to award other contracts to the same
\ncompany. 10-25%
\nExecute the contract with less quality or with different technical specifications than were submitted during the tender process. .: 50-90%
\nEmploy subcontractors that were neither properly selected nor disclosed during the tender process. 10-25%<\/p>\n

***
\nIf you have any question on the above, please do not hesitate to contact Dr. Oliver Massmann under omassmann@duanemorris.com . Dr. Oliver Massmann is the General Director of Duane Morris Vietnam LLC.<\/p>\n

Thank you very much!<\/p>\n","protected":false},"excerpt":{"rendered":"

1. Legal framework and reform update<\/p>\n","protected":false},"author":24,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[2],"tags":[436,190,113,26],"ppma_author":[1007],"class_list":["post-1006","post","type-post","status-publish","format-standard","hentry","category-vietnam-general","tag-government","tag-lawyer","tag-public-procurement","tag-vietnam"],"authors":[{"term_id":1007,"user_id":24,"is_guest":0,"slug":"omassmann","display_name":"Dr. Oliver Massmann","avatar_url":"https:\/\/blogs.duanemorris.com\/vietnam\/wp-content\/uploads\/sites\/19\/2014\/08\/massmannoliver-125x150.jpg","0":null,"1":"","2":"","3":"","4":"","5":"","6":"","7":"","8":""}],"_links":{"self":[{"href":"https:\/\/blogs.duanemorris.com\/vietnam\/wp-json\/wp\/v2\/posts\/1006","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/blogs.duanemorris.com\/vietnam\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/blogs.duanemorris.com\/vietnam\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/blogs.duanemorris.com\/vietnam\/wp-json\/wp\/v2\/users\/24"}],"replies":[{"embeddable":true,"href":"https:\/\/blogs.duanemorris.com\/vietnam\/wp-json\/wp\/v2\/comments?post=1006"}],"version-history":[{"count":0,"href":"https:\/\/blogs.duanemorris.com\/vietnam\/wp-json\/wp\/v2\/posts\/1006\/revisions"}],"wp:attachment":[{"href":"https:\/\/blogs.duanemorris.com\/vietnam\/wp-json\/wp\/v2\/media?parent=1006"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/blogs.duanemorris.com\/vietnam\/wp-json\/wp\/v2\/categories?post=1006"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/blogs.duanemorris.com\/vietnam\/wp-json\/wp\/v2\/tags?post=1006"},{"taxonomy":"author","embeddable":true,"href":"https:\/\/blogs.duanemorris.com\/vietnam\/wp-json\/wp\/v2\/ppma_author?post=1006"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}