World Bank - Public Procurement in Vietnam

1. Lawyer in Vietnam Oliver Massmann
- “World Bank asking Duane Morris on Public Procurement in Vietnam"
- Here are the answers !
I. Bidding for a Public Procurement Tender in Vietnam
1. Laws and regulations governing public procurement
 Law on Bidding No. 43/2013/QH13 by National Assembly dated 26 November 2013
("Law on Bidding");
 Law on Public Investment No. 49/2014/QH13 of the National Assembly dated 18 June
2014 ("Law on Public Investment");
 Decree No. 63/2014/ND-CP by the Government dated 26 June 2014 guiding Law on
Bidding ("Decree No. 63/2014/ND-CP");
 Decree No. 15/2015/ND-CP by the Government dated 14 February 2015 on public-
private partnership investment ("Decree No. 15/2015/ND-CP")
 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 dossier for consultancy services ("Circular No.
01/2015/TT-BKHDT");
 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");
 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;
 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;
 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;
 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.
2. Procurement portal in Vietnam
Muasamcong.mpi.gov.vn serves as the e-procurement platform in Vietnam, which is operated at
the procuring entity/ ministry level. It is a platform centralizing information, supporting e-
tendering and procurement contracts management. Via the procurement portal, suppliers can
access public procurement laws and regulations; notices of invitations to tenders; tender
documents; guidelines to participate in a tender; and notice of award/ bidding results. They can
also ask a question to the procuring entity via such platform. Vietnam Government is buiding up
an e-tendering system. Circulars and relevant guidances in this regard are being drafted and
expected to be passed in 2015.
3. Information on public procurement opportunities

2. Article 8 of Decree No. 63/2014/ND-CP requires that procuring entities publish their procurement
plan. They are published at the notice board of the procuring entity, city council or ministry; in
local or national newspapers; in the Internet (e-procurement portal or website of the procuring
entity; or broadcast on television or radio.
In the case of open tendering, procuring entities must publish notices of invitations to tender on
the internet (e-procurement portal). Annexes 4, 11 and 15 to Circular No. 20/2010/TTLT-BKH-
BTC dated 21 September 2010 by the Ministry of Planning and the Ministry of Finance provides
a list of elements that procuring entities must always include in such notices. Moreover, Articles
12.2, 12.7, 12.8, and 23.2 of Decree No. 63/2014/ND-CP also provide a list of elements that
procuring entities must always include in tender documents in case of an open tender. Articles
12.3(a), 12.3(b), 12.4(a), 12.4(b) of Decree No. 63/2014/ND-CP requires the minimum content to
include the technical and financial requirements in order to participate in the tender as well as the
criteria and method of assessment that will be used by the procuring entity to access bids (Articles
12.2- 12.8 of Decree No. 63/2014/ND-CP).
Access to tender documents
Suppliers can access tender documents by downloading the documents from the internet (E-
procurement portal or website of the procuring entity) or in Bidding Newspaper and other public
media. Based on the size and nature of the contracts, procuring entity decides the selling price of
one set of bidding documents and dossier of requirements (taxes included) for the domestic
bidding, including the maximum price of VND 2,000,000 for the bidding invitation document and
VND 1,000,000 for the dosier of requirements; as for the international bidding, such selling prices
shall adhere to the international bidding practices (Article 9.1 of Decree No. 63/2014/ND-CP).
Tender documents can be obtained upon payment.
Circular No. 01/2015/TT-BKHDT promulgates the standard bidding documents. However,
technical specifications do not follow international or national industrial standards (for instance,
reference to standards of the International Organization for Standardization or the United Nations
Standard Products and Services Code classification).
4. Accessing public procurement opportunities and preparing a bid
Legally speaking, there is no provision allowing suppliers to submit a question for clarification to
the procuring entity on the notice of invitation to tender or tender documents. However, in
practice, suppliers can contact the procuring entity for clarification of the tender.
5. Participating in the bidding process
Submitting a bid
Article 5.1(d) of the Law on Bidding requires suppliers to register on a national or local registry
of suppliers before they can submit their bids. In order to do that, suppliers must submit an
application dossier for an igital certificate and use the digital certificate for online register. It
would take 03 (three) calendar days and no cost. The Ministry of Planning and Investment
("MPI") issued an Official Letter No. 5356/BKHDT-QLDT dated 18 August 2014 to provide
guidance on bidder registration.
Article 12.1(e) of the Law on Bidding stipulates a minimum 20 calendar days for domestic
bidding and 40 calendar days for international bidding that the procuring entity must grant to
suppliers to submit their bids. Suppliers can submit their bids online or in person without any fee.
However, online bidding system seems not to be completed at the moment. We assume that
online tendering will apply after the issuance of upcoming implementing documents.

3. Securing a bid and submitting alternate bids
According to Article 11.2 of the Law on Bidding, bidders must conduct measures for bidding
guarantee prior to bidding closure for bidding dossiers; in case of applying method of two-phase
bidding, bidders must provide a bidding guarantee during the second phase.
For bidder selection, value of bidding guarantee is stipulated in bidding dossiers, dossier of
requirements under a defined amount of between 1% and 3% of the bidding package price based
on the scale and nature of each particular tender package. For investor selection, this amount is
between 0.5% - 1.5% of the total investment amount based on the scale and nature of each
particular project (Article 11.3 Law on Bidding).
Procurring entities are not legally required to propose a guanratee instrument different than a bid
security bond (or other instrument generating a cost for suppliers) that would not generate a cost
for bidders upon submitting their bids. Alternate bids are also not allowed.
Accessing information on the award of the public procurement contract
Article 8.1 of the Law on Biding requires the procuring entity to publish the award notice. It is
published on the e-procurement portal, in local or national newspapers, at the notice board of the
procuring entity or city council or broadcasr on television or radio. The procuring entity is also
required to notify unsuccessful bidders in person with reasons why they are not selected.
Additional information
There is no incentives to increase procurement of goods and services from women-owned
enterprises. Actually, a bidder who employs female employees of 25 % or more of laborer
quantity will be entitled to preferential treatment in domestic bidding to supply advisory services,
non-advisory services, construction and installment. (Article 14.3(a) Law on Bidding). A bidder
as a small enterprise will also be entitled to preferential treatment in domestic bididng.
Preferential treatment includes:
 Add more points to the assessment point of tenderers subject to preferential
treatment; or
 Increase the bidding price or assessment price of tenderers not subject to preferential
treatment.
(Article 14.4, Law on Bidding)
Reforms related to public procurement
Government's Decree on Public Private Partnership ("PPP") was adopted on 14 February 2015.
Decree on investor selection in PPP project; Circular guiding Government's Decree 63/2014/ND-
CP on conducting bidding online and bidding in procurement, construction and installment and
advisory sectors are expected to be adopted before June 1, 2015. Meanwhile, Government's
Decree guiding the Law on Bidding regarding bidder selection is expected to come later this year.
6. Recommendation to the Government
We would recommend the government to expedite the adoption of detailed guidance for the
procedure of bidder registration on the National bidding network system so that procurement
activities may be conducted in a more effective and economic manner. Moreover, it is necessary
to take advantage of the negotiations of a free trade agreement between Vietnam and E.U and
Trans-Pacific Partnership Agreement between Vietnam and US and other Asian-Pacific countries
to require Vietnam to comply with major principles on government procurement and bidding

4. under WTO’s Agreement on Government Procurement. Vietnam is also urged to sign the WTO’s
Agreement on Government Procurement as soon as possible since it would appease the minds of
foreign investors.
II. Integrity of the Public Procurement Process in Vietnam
1. General legal safeguards applicable to the overall procurement process
Financial disclosure obligations of procurement officials
Public officials involved in public procurement are not mandated to submit a financila disclosure.
Protecting bidders from situations of conflicts of interest
Under Vietnam laws, situations of conflict of interest of procurement officials are considered as
failure to ensure the fairness and transparency in bidding -- which are prohibited acts (Article.
89.6 of Law on Bidding). A bidder can report a situation of conflict of interest affecting a
procurement official. Please find below the section on Complaints for detailed procedures for
such report.
Articles 90.1, 90.2 provides that a procurement official in a situation of conflict of interest should
be suspended, removed excused or disqualified from pariticipating in the procuremnt process.
Under Vietnam laws, a bidding shall be cancelled in case there is an evidence on bribery, abuse of
position and/or power to interfere illegally in bidding activities that lead to the falsified result of
bidder selection. (Article 17.4 Law on Bidding). However, the Law on Bidding is silent on who
may report such evidence and the relevant procedures accordingly.
The bidding supervising entities in charge shall send written reports on the violations against the
law on bidding to the competent persons for consideration to ensure the effectiveness of the
bidder selection (Article 126.5(d) of Decree No. 63/2014/ND-CP). There is no regulatory
framewoek to protect the reporting officials from retaliation.
2. Specific safeguards applicable during the different steps of the procurement process
Pre-tendering case
Consultation with the private sector, if organized by the procuring entity, is not publicly
advertised.
A bidder participating in the tender must be independent on legal and financial status of the
consultancy bidder. (Article 6.2(b) Law on Bidding).
Also, a bidder is not allowed to join a bidding of goods procurement or construction for which
such bidder previously provided consultancy services. (Article 89.6(dd) Law on Bidding).
Article 16 of the Law on Bidding require public officials in charge of drafting the technical
specifications receive technical tranining, specifically:
 Individuals participating in bidding activities must possess certificate of training on bidding
and have professional expertise, capability, experiences, language appropriate to the
requirements of the bidding package, project, except for individuals belonging to bidders.

5.  Individuals who directly participate in making dossiers of invitation for expression of interest,
dossiers of invitation for pre-qualification, bidding dossiers, dossiers of requirements;
assessment of dossiers of expression of interest, dossiers of pre-qualification participation, bid
dossiers, dossier of proposals of professional bidding organizations, enterprises, units
operating in advisory for bidding, professional management board of projects must have
certificate of practicing on bidding operation.
The law does not prohbit the inclusion of technical specifications that could influence the award
of the contract (for example, details of origin, reference to a specific trademark or patent). The
law does not require the procuring entity for technical specifications similars to the ones requested
either.
Tendering phase
Article 14.4(a) of Decree No. 63/2014/ND-CP provides that within one (1) hour from the closing
of bidding submission, the procuring entity must proceed to bid opening. In practice, it may take
longer, but the bid opening still takes place on the same date as the closing of bidding submission.
Bid-opening session shall be conducted in the witness of legal representatives of bidders who
attend the bid-opening session, regardless of the presence or absence of bidders. I.e. The
participating bidders are allowed to attend the bid opening session. However, Vietnam Law is
silent if other subjects are permitted to attend such opening or not. All information of the whole
bid opening must be recorded. Records on the bid opening must be countersigned by
representatives of procuring entities and bidders who participate in the bid opening session. Such
records must be delivered to the participating bidders.
The law does not probibit the public officials in charge of conducting the needs assessment and
drafting the technical specifications from participating in the bid evaluation. Criteria for
evaluation of bid dossier generally include: criteria for evaluation on capability, experiences;
criteria for evaluation on technical aspect; and criteria for evaluation on financial aspect.
However, current law does not expressly require that procuring official(s) to strictly and solely
comply with such criteria. Official in charge will flexibly apply the general principles as the case
may be.
Post-tendering phase
A bid award receiver cannot sign the procurement contract on an e-procurement platform or
another online system. Actually current law has built up a separate chapter with regard to
“selection of bidder online”. (Chapter VIII Law on Bidding). As such, electronic transaction
documents and information posted on the national bidding network system are considered original
and as valid as paper documents, which are the basis for evaluation, verification, inspection, audit,
and disbursement (Article 85.5 Law on Bidding). However, current law is silent on the procedure
to sign and amend the procurement contract online. We should wait for further implementation
guidances issued by Ministry of Planning and Investment (Article 88.7 Law on Bidding).
The procuring entities are also not required to publish the procurement contract. Any expenditure
arising or changing in the implementation of procurement contracts must be reported to the
competent authorities for consideration and appendices which serve as a basis for the
implementation must be added. Also, an e-tendering system is being prepared by Ministry of
Planning and Investment and is expected to be soon applied in 2015 for monitoring such
implementation.
The procuring entity must process the payment of supplies in accordance with the timing as
agreed in the procuring contract. If an investor makes the payment later than the stipulated time in
the procuring contract, such investor shall be subject to the late payment interest under the term of

6. the contract. In Vietnam, the law allows payment in cash, through bank transfer or other payment
methods as agreed by parties. However, in practice, payment in cash and through bank transfer
should be preferred.
III. Filing a Complaint in Vietnam
1. Regulatory framework
Article 91 of the Law on Bidding No. 43/2013/QH13 by National Assembly dated 26 November
2013 ("Law on Bidding") stipulates mechanisms governing bidders’ complaints.
Challenges to provisions in the tender documents do not need to be submitted prior to the due date
for tender submisisons. However, a written complaint must be submitted prior to the bidder
selection result. The law provides the review mechanism as follows: (i) First tier review by
procuring entity and appeal to independent body (if any); and (ii) court proceedings. Step of court
proceedings may be conducted at any time, notwithstanding during or after step of review by
procuring entity/independent body. However, in case conducting step of court proceedings first, a
bidder is no longer allowed to precede step of review by procuring entity/independent body. If
bidders conduct court proceedings during the resolution of protest by procuring entity/independent
body, the resolution of protest shall be terminated immediately. Under Vietnam laws, review body
will be procuring entity and independent administrative review body with the support of Protest
Resolution Consultancy Council (Article 92 Law on Bidding).
2. Complaints before the conclusion of the contract
Only suppliers that have submitted a bid have standing to file a complaint. The complanining
party does not have to show that it suffered a loss of right, monetary damages or injury as a results
of the tender or is not subject to any condition to be eligible to file a complaint. Law only requires
the complaining party to submit a written complaint without any standard form (Article 92.1(a)
Law on Bidding). However, we understand that this written complaint must at least explain the
reason of the protest as well as how the complaining party's lawful rights and benefits are
affected.
The complaining party has two options to files its complaint under current law: (i) to the
procuring entity and/or (ii) to a judicial court. Regarding (i), if procuring entity does not respond
to the protest or the complaining bidder disagrees with the resolution, the bidder has the right to
submit the written protest to an independent second-tier review body. We are aware that almost
bidders commonly submit the written protest to procuring entity first instead of conducting the
court proceedings (Article 91.1 Law on Bidding). Written complaint must be submitted to
procuring entity prior to the bidder selection result. The procedure to file a complaint is not listed
on a government-supported website. Moreover, the complaining party is not required to hire a
legal counsel to engage in the proceedings before the first-tier review body. The complaint does
not trigger a suspension of the procurement process, except for necessary circumstances or the
application of interim injunctive relief.
When the complaint is filed, the first-tier review body (the procuring entity) will review the claim.
It however does not conduct hearings. Within 9 calendar days (7 working days) from the date of
receipt of bidder's complaint, the procuring entity must resolve it in writing (Article 92.1(b) Law
on Bidding). In practice, it may take longer. The decision is not required to be published.
The complaining party may appeal to the decision of the procuring entity within 7 calendar days
(5 working day) from (i) the deadline for the procuring entity to respond to bidder's complaint or
(ii) the date of receipt of procuring entity's complaint resolution. The procurement process will

7. not be suspended until the complaining party’s right of appeal expires or during the appeal
proceedings except in necessary circumstances.
Neither the complaining party nor the second-tier review body is required to notify the procuring
entity of the appeal. Within 7 calendar days (5 working day), the second-tier review body must
issue a decision.
3. Post-award complaints
The award decision can be subject to a two-tier review. Article 92.2 of the Law on Bidding
provides a 10 calendar day period between the announcement of the winning bidder and the
beginning of the contract for unsuccessful bidders to challenge the decision. Only parties that
have submitted a bad are allowed to challenge the award the contract.
The process of filing a post-award complaint before procuring entity (first-tier review body) is the
same as the one for filing a pre-award complaint. However, for the seoncd review, the Complaint
Resolution Consultancy Council will support. This Council may request the procuring entity to
provide information where necessary. Suspension of the procurement during the review process
may also be requested. In case the complaining bidder submits the written complaint to the
Complaint Resolution Consultancy Council, fee equal to 0.02% of such bidder's participation fee
will be charged, but not less than VND1,000,000 and not more than VND50,000,000 (Article 9.8
of Decree No. 63/2014/ND-CP).
4. Recommendation to the Government
Suspension of procurement (where necessary) may be request at all steps of complaining
procedure (i.e. first-tier review and second-tire reviews, pre-award and post-award complaints) to
protect the lawful rights and benefits of the complaining bidder.
Complaining bidder as well as its authorized representation should have the right to see all and/or
any submission from the procuring entity to the second-tire review body/ Protest Resolution
Consultancy Council
Which types of remedies that the second-tire review is entitled to grant to complaining bidder
should be clarified in detail.
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Please do not hesitate to contact Mr. Oliver Massmann under omassmann@duanemorris.com if you
have any questions on the above. Oliver Massmann is the General Director of Duane Morris
Vietnam LLC.
INTERESTED IN DOING BUSINESS IN VIETNAM? VISIT: www.vietnamlaws.xyz
THANK YOU VERY MUCH!