Several notable changes in the Law Amending and Supplementing Certain Provisions of the Bidding Law (Effective as of January 1, 2024)
On June 23, 2023, the National Assembly enacted Law No. 22/2023/QH15, amending and supplementing certain articles of the Bidding Law No. 43/2013/QH13. The 2023 Bidding Law consists of 10 Chapters and 96 Articles and will take effect on January 1, 2024. It includes several notable new provisions:
Expanded Scope of Application
The 2023 Bidding Law has added point a of paragraph 2 of Article 2 regarding the selection of contractors to carry out the following: Bidding packages under investment projects of state-owned enterprises as defined by the Enterprise Law and enterprises in which state-owned enterprises hold 100% of the charter capital.
Addition of Prohibited Acts in Bidding Activities
The 2023 Bidding Law supplements and provides more detailed regulations on certain prohibited acts in bidding activities as follows:
– Bid-rigging behaviors include: Collusion, agreements, or coercion to have one or more parties prepare or withdraw bid documents so that a specific party wins the bid; collusion or agreements to refuse to supply goods or services, refuse to sign subcontracts, or engage in other forms of agreements aimed at restricting competition so that a specific party wins the bid; and contractors, qualified and experienced investors who have participated in the bidding and meet the requirements of the bid invitation but intentionally fail to provide documents to prove their qualifications and experience when requested by the bidding authority to clarify the bid proposal or when requested to verify documents, thereby creating conditions for a specific party to win the bid.
– Acts of obstruction include: destroying, falsifying, altering, concealing evidence, or making false reports; threatening or suggesting to any party to prevent the clarification of acts involving the giving, receiving, or brokering of bribes, fraud, or collusion with competent authorities responsible for supervision, inspection, audit, or examination; obstructing authorized officials, project owners, the tendering authority, contractors, or investors in the selection of contractors or investors; obstructing competent authorities from supervising, inspecting, auditing, or reviewing bidding activities; intentionally filing false complaints, accusations, or petitions to obstruct bidding activities and engaging in violations of laws on cybersecurity to interfere with or obstruct online bidding.
Amendment of the bid security amount for contractor selection
Based on the scale and nature of each project, business investment project, or specific bid package, the bid security amount in the bid invitation documents is specified as follows: From 1% to 1.5% of the bid package value applies to construction and mixed bid packages with a bid package value not exceeding 20 billion VND; procurement packages for goods and non-consulting services with a contract value not exceeding 10 billion VND; from 1.5% to 3% of the contract value for packages not falling under the cases specified in Point a of Clause 4; from 0.5% to 1.5% of the total investment capital of the business investment project for the selection of investors.
New regulations on cases of bid cancellation
Clauses 1 and 2 of Article 17 of the 2023 Bidding Law stipulate the following cases for bid cancellation:
– Cases for canceling a tender regarding contractor selection include: All expressions of interest, pre-qualification submissions, bid submissions, and proposal submissions that do not meet the requirements of the expression of interest, pre-qualification invitation, tender invitation, or request for proposal; changes to the objectives or scope of investment in the approved investment decision that alter the scope of work or evaluation criteria specified in the Expression of Interest, Pre-qualification Documents, Bidding Documents, or Request for Proposal; the Expression of Interest, Prequalification Documents, Bidding Documents, or Request for Proposal do not comply with the provisions of the 2023 Bidding Law or other relevant legal regulations, resulting in the selected contractor failing to meet the requirements to execute the contract; the winning contractor commits acts prohibited under Article 16 of the 2023 Bidding Law; other organizations or individuals besides the winning contractor commit acts prohibited under Article 16 of the 2023 Bidding Law, resulting in a distortion of the contractor selection results.
– Cases for canceling the bidding process for investor selection include: All bid proposals fail to meet the requirements of the bidding documents; changes to the objectives, scale, location, investment capital, or implementation timeline of the business investment project due to force majeure, resulting in changes to the evaluation criteria in the previously issued bidding documents; the tender documents contain one or more provisions that do not comply with the provisions of this Law or other relevant legal regulations, leading to inaccuracies in the investor selection results, or the selected investor no longer meets the requirements to implement the business investment project; the winning bidder commits acts prohibited under Article 16 of the 2023 Bidding Law; any organization or individual other than the winning investor commits an act prohibited under Article 16 of the 2023 Bidding Law, resulting in a distortion of the investor selection results.
Addition of certain bid packages subject to direct award
Article 23 of the 2023 Bidding Law specifically stipulates certain cases for contractor selection under special circumstances as defined in Decision 17/2019/QĐ-TTg, including the following bidding packages: Tender packages for the transportation of national reserve goods for relief and aid in cases requiring immediate delivery; tender packages for the rental of warehouses to store temporarily seized goods; tender packages for the rental of transportation and loading/unloading services for temporarily seized goods at seaports and centralized goods inspection sites in cases where there is only a single service provider within the port; and tender packages for the import of sports equipment to serve sports clubs, schools, sports training centers for annual training and competitions.
Addition of a tender package applying the competitive bidding procedure
Article 24 of the 2023 Bidding Law adds provisions regarding competitive bidding, which applies to procurement packages with a contract value not exceeding 05 billion VND in one of the following cases: Common, simple non-consulting service procurement packages; procurement of common goods readily available on the market with standardized technical specifications and equivalent quality; simple construction contracts for which construction drawings have been approved; mixed contracts for the supply of goods and construction, where the construction component meets the requirements of subparagraph (3) of this section.
Supplementary provisions on bid prices
Paragraph 2 of Article 39 of the 2023 Bidding Law stipulates the contract price: The contract price is the value of the contract approved in the contractor selection plan. The bid package price includes all costs required to execute the bid package, including contingency costs, fees, charges, and taxes. The bid package price shall be updated within 28 days prior to the bid opening date if necessary; for divided bid packages, the bid package price and the estimated price for each portion shall be clearly stated within the bid package price; for contracts applying the option to purchase additional quantities as stipulated in Clause 8 of Article 39 of the 2023 Bidding Law, the contract price does not include the value of the option to purchase additional quantities. The Government shall prescribe in detail the contents of the contract price in the contractor selection plan.
New provisions on the selection of contractors for the supply of medicines, chemicals, testing materials, and medical equipment
Regulations on the selection of contractors for the supply of medicines, chemicals, testing supplies, and medical equipment pursuant to Article 55 of the 2023 Bidding Law are as follows:
– Healthcare facilities may select contractors to supply chemicals, testing supplies, and medical equipment; for the purchase of drugs not included in the list of drugs covered by the health insurance fund, and the purchase of vaccines for vaccination as a service, medical examination and treatment facilities and healthcare facilities may independently decide on procurement based on ensuring transparency, economic efficiency, and accountability.
– In cases where private medical examination and treatment facilities choose not to apply the provisions of the 2023 Bidding Law regarding the procurement of medicines, chemicals, laboratory supplies, and medical equipment, such facilities may only be reimbursed from the health insurance fund at the unit prices of medicines, chemicals, testing supplies, and medical equipment in accordance with the winning bid unit prices of public healthcare facilities at the provincial or central levels, or healthcare facilities of the same technical and professional level within the same locality;
If there are no winning bid prices from public healthcare facilities at the provincial or central levels, or from healthcare facilities of the same technical and professional level within the same locality, the matter shall be handled in accordance with Government regulations.
Thus, while Article 48 of the 2013 Bidding Law provides a general framework for contractors supplying medicines and medical supplies, Article 55 of the 2023 Bidding Law introduces several notable new provisions aimed at addressing difficulties and challenges in the bidding process for the procurement of medicines, chemicals, diagnostic supplies, and medical equipment. A key feature of procurement in the healthcare sector is that public healthcare facilities may independently decide to purchase medicines not included in the health insurance reimbursement list and to procure vaccines for vaccination as a service.
Specific regulations on preferential treatment in drug procurement
The provisions on preferential treatment in drug procurement under Article 56 of the 2023 Public Procurement Law are more detailed and clear than those under Article 50 of the 2013 Public Procurement Law, specifically:
– Preferential treatment in drug procurement is implemented in accordance with the provisions of Article 10 of the 2023 Bidding Law and stipulates: For medicines produced by at least three domestic manufacturers that meet the technical criteria specified by the Ministry of Health regarding quality and price, the project owner may require bidders to submit bids for domestically produced medicines for such items. Additionally, for medicines announced by the Ministry of Health as being produced by at least three domestic manufacturers on production lines that comply with the principles, EU-GMP standards or their equivalents, and meet the technical criteria as prescribed by the Ministry of Health regarding quality, price, and supply capacity, the bidding documents and request for proposals must specify that bidders may only submit bids for domestically produced drugs.
– The Ministry of Health is responsible for publishing the list of drugs specified in Point b, Clause 1, Article 56 of the 2023 Bidding Law.
New Regulations on Inspection, Audit, and Supervision of Bidding Activities
Regulations on inspections, audits, and supervision of bidding activities pursuant to Article 86 of the 2023 Bidding Law, specifically:
Inspection of Bidding Activities: Inspections of bidding activities are conducted against organizations and individuals involved in bidding activities as stipulated in the 2023 Bidding Law, and the organization and conduct of bidding inspections are carried out in accordance with the provisions of the law on inspections.
Inspection of bidding activities: Inspections of bidding activities are conducted on a regular or ad hoc basis pursuant to a decision by the head of the competent inspection authority; such inspections cover one or more of the following activities: the issuance of guidance documents and directives for the implementation of bidding procedures; the submission, review, and approval of contractor selection plans; preparations for the selection of contractors and investors; organizing the selection of contractors and investors; contract management and implementation; other activities related to bidding; inspections of bidding activities are conducted through on-site inspections or via written reports, and the inspection procedures include: preparation for inspection; conducting the inspection; inspection conclusions; and monitoring the implementation of inspection conclusions.
Supervision of bidding activities: Competent authorities and state management agencies for bidding carry out the supervision of bidding activities of project owners and tendering entities to ensure that the contractor and investor selection process complies with the provisions of the 2023 Bidding Law and relevant laws; Bidding activities are supervised by the community; the Vietnam Fatherland Front Committees at all levels take the lead in organizing community supervision of bidding activities; state bidding management agencies under ministries, sectors, and localities conduct regular supervision of bidding activities for tender packages within projects, business investment projects, and procurement budgets within their respective jurisdictions and areas of management; authorized officials oversee bidding activities for projects, business investment projects, and procurement budgets within their jurisdiction; bidding supervision covers one or more of the following aspects: pre-qualification documents, bidding documents, and request for proposal documents; evaluation of bid proposals and proposals; the process for selecting contractors and investors; and the procedures and steps for supervising bidding activities by authorized officials: preparation for supervision; conduct of supervision; and reporting of supervision results./.
