The Bidding Law does not categorize its subjects into public or private agencies. Subjects of the Bidding Law are:[1]

• organizations and individuals participating in or related to bidding activities for bidding packages belonging to the projects governed by the Bidding Law;[2] and
• organizations and individuals with projects not within the governing scope of the Bidding Law but choose to apply the Bidding Law.

Projects governed the Bidding Law are:[3] 

• Selection of consultancy or non-consultancy service providers and goods or construction and installation contractors for:
  • development investment projects funded by state capital of state bodies, political organizations, socio-political organizations, socio-politico-professional organizations, socio-professional organizations, social organizations, people's armed forces units or public non-business units;
  • development investment projects of state owned enterprises;
  • development investment projects with state capital or state owned enterprises capital accounting for 30% or more of the total investment capital, or less than 30% but exceeding VND 500 billion (approximate USD 23 million);
  • procurement funded by state capital to maintain routine operations of state bodies, political organizations, socio-political organizations, socio-politico-professional organizations, socio-professional organizations, social organizations, people's armed forces units or public non-business units;
  • procurement funded by state capital to supply public products or services;
  • purchase of national reserve goods with state capital;
  • purchase of medicines and medical supplies by state capital; health insurance fund, revenues from medical examination and treatment services, and other lawful revenue sources of public health entities;
• Selection of consultancy or non-consultancy services or goods in Vietnamese territory for the implementation of offshore direct investment projects of Vietnamese enterprises with state capital accounting for 30% or more of the total investment capital, or less than 30% but exceeding VND 500 billion (approximate USD 23 million);
• Selection of investors to implement investment projects in the form of Public Private Partnership (PPP) or land-using investment projects;
• Selection of contractors in the field of petroleum, except for the selection of contractors to provide petroleum services directly related to petroleum exploration, field development and exploitation in pursuant to the Petroleum Law.

Public agencies are for examples Governmental ministries, Provincial authorities, State-owned enterprises are all subject to comply with the Bidding Law and regulations.

[1] Article 2, Bidding Law.

[2] Article 1, Bidding Law.

[3] Article 1, Bidding Law.

Private entities invest in the projects where state capital or state owned enterprises capital accounting for 30% or more of the total investment capital, or less than 30% but exceeding VND 500 billion (approximate USD 23 million) shall be subject to the Bidding Law.

State capital means: "state budget capital; national debentures, government bonds, municipal bonds; ODA, concessional loan of donors; capital from the fund for development of non-business activities; development investment credit capital of the State; credit capital guaranteed by the Government; loan secured with state property; development investment capital of state enterprises; value of land use rights".[1]

For example, a private entity invests in a construction project with the total investment capital of VND 400 billion, and 30% or more of such total investment capital comes from loan with Government's guarantee, or from ODA fund, then such private entity must apply the Bidding Law in order to select contractors for its project.

[1] Article 4.44, Bidding Law.

No, public bodies using state capital to fund development or investment projects are subject to the Bidding Law.

Please refer to Section 2(a) above to determine the threshold of state capital which will determine whether the project will be subject to the Bidding Law.

The Bidding Law covers the following types of contracts:

• for private projects or public projects: contract with contractors including lump-sum contracts, fixed unit price contracts, time-based contracts and percentage-based contracts;[1] and
• for PPP projects between State authorised authority and private parties: Build-Operate-Transfer, Build-Transfer-Operate, Build-Own-Operate, Build-Transfer contracts and other types of contracts prescribed by regulations on investment.[2]

[1] Article 62, Bidding Law.

[2] Article 68, Bidding Law.

Any changes to the existing contract must be specified in the contract, or other agreements regarding the conditions of the existing contract (if any)[1] and such changes may only apply during the validity duration of the existing contract.[2]

Changes to contract price is only applicable for fixed unit price contracts, time-based contracts and percentage-based contracts, but not the lump-sum contracts.[3] After adjustment, contract prices must not exceed approved bidding package prices or cost estimates. For a project or cost estimate consisting of many bidding packages, the total contract price after being adjusted must not exceed the approved total investment or procurement cost estimate.[4] For contracts with adjustable unit prices, the adjustment of unit price may be made upon the occurrence of price changing elements and apply only to work volume implemented according to the schedule stated in the contracts or the adjusted schedule under the Bidding Law.[5]

The contract performance schedule is adjusted only where (i) there is force majeure event which is not related to any violation or mistake of contracting parties; (ii) the scope of work, design and construction measures are changed as a result of objective element, which affect the contract's performance schedule; and (iii) the hand over of site is not in accordance with the contract, which affect the contract's performance schedule but not die to the contractor's fault.[6] Where the adjustment prolongs the project completion schedule, it must be reported to a competent person for consideration and decision. Competent person is defined as the person who approves a project or decides on procurement in accordance with law and for investor selection, the competent person is the head of the competent state agency as defined by law.[7] If the adjustment does not prolong the project completion schedule, no report is required provided that parties must reach an agreement regarding the adjustment.[8]

In addition, a transfer of contract to new contractors is prohibited where: (i) part of works under a bidding package is valued at either 10% or more or less than 10% of the contract price but over VND 50 billion (approximate USD 2.3 million) after subtracting the value of works to be performed by subcontractors;[9] project owners or supervision consultants allowing contractors to transfer works to be executed by contractors to others, except those to be performed by subcontractors as specified in the contract.[10]

If the investment purpose and scope stated in the bidding dossier or dossier of requirements are changed, it may cause the bid to be cancelled.[11]

[1] Article 67.1, Bidding Law.

[2] Article 67.2, Bidding Law.

[3] Article 67.3, Bidding Law.

[4] Article 67.4, Bidding Law.

[5] Article 67.5, Bidding Law.

[6] Article 67.6, Bidding Law.

[7] Article 4.34, Bidding Law.

[8] Article 67.7, Bidding Law.

[9] Article 89.8(a), Bidding Law.

[10] Article 89.8(b), Bidding Law.

[11] Article 17.2, Bidding Law.

Framework agreements apply for centralised procurement (please see section 7(a) for the discussion of centralised procurement).

Under the Bidding Law, a framework agreement in centralised procurement is a long-term agreement between a centralised procurement unit and one or more than one selected contractor, including criteria and conditions which serve as a ground for procurement under each specific contract. The validity duration of a framework agreement shall be specified in the contractor selection plan and must not exceed 3 years.[1]

Base on the size and characteristics of a bidding package, a centralised procurement unit shall specify detailed contents of the framework agreement in the bidding dossier which must have the following contents:

• Scope of supply of goods or services, statement of quantity of goods or services;
• Tentative time and place of goods delivery or service provision;
• Conditions for goods or service delivery; advance, payment and contract liquidation;
• Price cap applicable to each type of goods or service;
• Warranty and maintenance conditions; training and instructions for use of goods or service;
• Responsibilities of the goods or service supplier;
• Responsibilities of the unit directly signing the contract on procurement and use of goods or services;
• Responsibilities of the centralised procurement unit;
• Effective time of the framework agreement;
• Sanctions for contractual breaches;
• Other related contents.[2]

[1] Article 45, Bidding Law.

[2] Article 72, Decree No. 63.

The key regulations of the PPPs are provided by Decree No. 15 and Decree No. 30.

Decree No. 15 governs (i) sectors and requirements, execution procedures of the investment projects under the PPP's form; (ii) management mechanism and use of state budget for the execution of investment projects; (iii) government's investment incentive and assurance policies; and (iv) government agencies' responsibilities for the management of investment projects developed in the form of public-private partnership.[1]

Decree No. 30 provides guidelines regarding the selection of investor to implement investment projects in the form of PPP or land using investment projects, including: (i) PPP projects as prescribed by the Government and (ii) investment project using land with high commercial value that require the selection of investor on the list of approved projects to develop constructions in urban areas, new urban areas; commercial housing, commercial and service works; multi-purpose complexes which are not PPP projects.[2]

[1] Article 1, Decree No. 15.

[2] Article 1.1, Decree No. 30.

Concessions are principally governed by Decree No. 15, i.e. the PPP project agreements.

Conditions for concessions' award are:

• the investors must be selected through open bidding or direct appointment;[1]
• regulatory agencies shall organize preliminary negotiation with the investor that is selected regarding the project contract's contents;[2] and
• conditions, investors selection procedures and concession granted to the investor in the bidding process are subject to Bidding Law and relevant guiding regulations.[3]

[1] Article 29.1, Decree No. 15.

[2] Article 30.1, Decree No. 15.

[3] Article 29.3, Decree No. 15.

Yes, it is prohibited to (i) give, receive or acting as a go-between for bribes; (ii) abuse positions and powers to illegally intervene bidding activities; (iii) collude in bidding; (iv) commit fraud; (v) provide obstacle to the bidding process; (vi) fail to ensure fairness and transparency; (vii) disclose or receive certain documents and/or information during the process of contractor or investor selection; (viii) transfer contracts to new contractors illegally (please refer to Section 2(e)) and (ix) organise the selection of contractors when capital sources for bidding package have not been identified, leading to debt owing by contractors.[1]

[1] Article 89, Bidding Law.