On June 23 2023, The National Assembly promulgated Law on bidding 2023 no. 22/2023/QH15, which amends and supplements many regulations such as contractor selection in special cases, incentives in contractor selection, and the addition of a separate chapter regulating bidding in the health sector,... one of the notable contents is the amendment and supplementation of prohibited acts in bidding activities compared to the Law on bidding 2013.
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According to Law on bidding 2023, “bidding” means the process by which a qualified bidder will be selected to sign and execute a consulting service contract, non-consulting service contract, contract for supply of goods or construction contract or by which a qualified investor will be selected to sign and execute a project contract in a manner that ensures competitiveness, fairness, transparency, economic efficiency and accountability.
Prohibited acts in bidding as Law on bidding 2023, including:
(1) Giving, receiving, or brokering bribes;
(2) Abusing positions or entrusted power to influence or illegally intervene in bidding process in any form;
(3) Collusive practice, including:
- Reaching, with or without undue influence, an arrangement or agreement which is designed to let one or more parties to prepare bids for all bidders or to withdraw submitted bids so that one of them will win the bid;
- Reaching an arrangement or agreement on refusal to supply goods or services, or subcontract, or reaching other agreements to limit competition so that one party will win the bid;
- A bidder or investor with appropriate qualifications and experience has submitted a bid and meets the requirements laid down in the bidding documents but deliberately refuses to provide additional documents proving their capacity and experience at the procuring entity’s request for clarification of the bid or verification of their submitted documents with the aim of facilitating one party’s winning of the bid.
(4) Fraudulent practice, including:
- Forging or falsifying information and/or documents used in bidding;
- Deliberately providing information and documents which are not accurate or objective in EOIs, prequalification applications, applications for project execution, bids or proposals with the aim of falsifying the contractor/investor selection result.
(5) Obstructive practice, including:
- Destroying, deceiving, altering, concealing evidence or making false reports; threaten or suggest to any party to prevent the clarification of acts of giving, receiving, brokering bribes, cheating or colluding with agencies with functional and competent authority in supervision, inspection and inspection. investigation and audit;
- Obstructing the competent person, employer, procuring entity, bidders (or investors) in the course of contractor (or investor) selection;
- Impeding competent authorities’ rights of supervision, inspection or audit of bidding activities;
- Deliberately making false complaints, denunciations or petitions with the aim of impeding bidding process;
- Acts of violation against laws and regulations on cybersecurity and safety intended to intervene or impede the online bidding process.
(6) Inequality and non-transparency, including:
- A bidder or investor of a package or investment project is also the procuring entity or employer or takes charge of performing tasks of the procuring entity or employer of that package or investment project;
- A person or entity concurrently engages in the preparation and appraisal of EOI request, prequalification document, bidding documents, or RFP of the same package or investment project;
- A person or entity concurrently engages in the evaluation of bids or proposals and the appraisal of the contractor or investor selection result of the same package or investment project;
- A person who is working for the procuring entity/employer directly engages in the contractor/investor selection, or acts as a member of the expert team or appraising team in charge of appraising the contractor/investor selection result, or is a competent person or head of the procuring entity/employer, for a package or investment project for which his/her family relative, as defined in the Law on enterprises, directly submits a bid or acts as the legal representative of a bidder or investor;
- Contractors participating in bidding packages for procurement of goods, construction and installation, non-consulting for which the contractor provides consulting services: preparation, verification, appraisal of estimates, technical design, construction drawing design , overall technical design (FEED design); Prepare and evaluate prequalification documents and bidding documents; Evaluate prequalification applications and bidding documents; goods inspection; appraisal of contractor selection results; Supervise contract implementation;
- A person acts as a bidder for a package of a project or investment project of the procuring entity or employer for which he/she worked and held the executive or managerial position within 12 months from the date of his/her resignation therefrom;
- A supervision consultant also acts as the inspection consultant of the same package;
- Failure to meet relevant requirements laid down in Law on bidding 2023 when adopting a method other than the competitive bidding to the contractor/investor selection;
- Inclusion of specific brand and/or origin requirements in the bidding documents for a procurement or construction or mixed package under the competitive bidding, limited bidding or shopping method, except the provisions of Point e Clause 3 Article 10, Clause 2 Article 44 and Clause 1 Article 56 of Law on bidding 2023;
- Bidding documents impose conditions that limit the participation of bidder(s) or investor(s) or give advantage for one or some bidders or investors resulting in unfair competition or violation of the Clause 3 Article 44 and Clause 2 Article 48 of Law on bidding 2023;
- Slitting a project or procurement cost estimate into a series of packages for the purpose of direct contracting or with the aim of limiting the participation of bidders.
Photo 1. Prohibited acts in bidding activities from January 1, 2024 - Hotline: 097 211 8764
(7) Unauthorized disclosure of the following information and documents on the contractor/investor selection, except the cases specified in Point b Clause 8 and Point g Clause 9 Article 77, Clause 11 Article 78, Point h Clause 1 Article 79, Clause 4 Article 80, Clause 4 Article 81, Clause 2 Article 82, Point b Clause 4 Article 93 of Law on bidding 2023, including::
- Contents of EOI request, prequalification document, bidding documents or RFP before they are issued as prescribed;
- Contents of EOIs, prequalification applications, applications for project execution, bids or proposals; the procuring entity’s clarification requests and responses from bidders or investors during the evaluation of EOIs, prequalification applications, applications for project execution, bids or proposals; reports of the procuring entity or expert team, appraisal reports, reports of consultants and other relevant specialized agencies during the contractor/investor selection; records or minutes of bid evaluation meetings, opinions or comments on each EOI, prequalification application, application for project execution, bid or proposal before they are disclosed as prescribed;
- Results of contractor and investor selection before being made public according to regulations;
- Other documents issued or obtained during the contractor/investor selection and certified to contain state secrets as prescribed by law.
(8) Illegal transfer of awarded contract, including the following cases:
- The contractor transfers a volume of tasks of the package worth more than the maximum value of tasks to be subcontracted and those tasks to be undertaken by specialist subcontractor(s) under the signed contract;
- The contractor transfers a volume of tasks of the package whose value does not exceed the maximum value of tasks to be subcontracted under the signed contract but beyond the scope of tasks to be subcontracted specified in the bid or proposal without obtaining a prior consent from the employer or supervision consultant;
- The employer/supervision consultant gives consent to the contractor’s transfer of tasks as prescribed in Point a of this Clause;
- The employer/supervision consultant gives consent to the contractor’s transfer a volume of tasks as prescribed in Point b of this Clause which is worth more than the maximum value of tasks to be subcontracted under the signed contract.
(9) The contractor selection is conducted before determining funding sources as prescribed in Clause 3 Article 39 of Law on bidding 2023.
Thus, compared to the Law on bidding 2013, the Law on bidding 2023 has supplemented and detailed many prohibited acts in bidding activities to suit the current actual situation..
Law on bidding 2023 takes effect from January 1, 2024.
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