WHAT ARE NEW HIGHLIGHTS OF LAW ON BIDDING 2023?
Composed of 96 articles arranged in 10 chapters, the 2023 Law on Bidding creates a complete and consistent legal framework on bidding, procurement and use of state capital.
Composed of 96 articles arranged in 10 chapters, the 2023 Law on Bidding (the Law) regulates the state management of bidding activities; competence and responsibility of agencies, organizations and individuals in bidding activities; and selection of contractors to implement bidding packages and selection of investors to implement business investment projects.
Effective from the beginning of 2024, the Law supersedes its 2013 predecessor with revisions made in 2016, 2017, 2019, 2020 and 2022 (the 2013 Law).
The Law creates a complete and consistent legal framework on bidding, procurement and use of state capital.
Compared to the 2013 Law, the Law has noteworthy changes.
Scope of regulation and subjects of application
The scope of regulation, subjects of application and principles of application of the Law inherits and improves the 2013 Law with three new contents.
First, the Law adds enterprises with charter capital wholly held by state enterprises to its subjects of application in order to more closely manage bidding activities of enterprises with capital invested by state enterprises.
Second, the Law improves regulations on selection of investors to implement business investment projects, including land-using investment projects subject to organization of bidding in accordance with the land law; and investment projects subject to organization of bidding to select investors in accordance with the relevant specialized laws.
Third, the Law clarifies principles of application of the Bidding Law, relevant laws, treaties and international agreements on official development assistance and concessional loans of foreign donors.
At the same time, the Law introduces new provisions to enhance the autonomy and self-responsibility of agencies, organizations and enterprises for selection of contractors on the basis of ensuring publicity, transparency and economic efficiency and accountability for procurement using capital acquired from production and business activities of state enterprises; and selection of contractors to provide oil and gas services and goods serving oil and gas activities under oil and gas contracts, and other special procurement activities.
Forms of contractor selection
Under Article 20 of the Law, forms of contractor selection include: open bidding; restricted bidding; contractor appointment; competitive offer; direct procurement; self-execution; community participation in execution; and price negotiation; and contractor selection in special cases.
The Law adds a number of cases of applying contractor appointment to speed up the implementation of a number of large, important, urgent projects and other special cases of procurement. The Law empowers ministers and chairpersons of provincial-level People’s Committee to decide on forms of contractor selection in special cases. The Prime Minister will only decide on the selection of contractors for bidding packages subject to requirements on national defense and security, external affairs and territorial borders.
Noticeably, lawmakers puts into the Law the provisions on application of forms of contractor selection in special cases specified in Prime Minister Decision 17/2019/QD-TTg dated April 8, 2019, on a number of bidding packages and procurement contents to maintain routine operations, which are eligible for contractor selection in special cases specified in Article 26 of the Bidding Law. In addition, the regulations on limits of bidding package prices for application of contractor appointment specified in Decree 63/2014/ND-CP dated June 26, 2014, detailing a number of articles of the Bidding Law regarding contractor selection, are also included in the Law.