Draft Amendment To The Bidding Law: Ministry Of Finance Proposes New Points On Contractor Designation, Investor Designation

The Ministry of Finance has just announced the draft amendment to the Bidding Law and related laws, proposing many important new regulations regarding contractor designation, investor designation, especially for the fields of science and technology and digital transformation. Learn about the key highlights.

Draft Amendment To The Bidding Law: Ministry Of Finance Proposes Many New Points On Contractor Designation, Investor Selection, And Science And Technology

 The Ministry of Finance has just publicly sought broad feedback on the draft Law amending and supplementing a number of articles of the Bidding Law; the Law on Investment in the Form of Public-Private Partnership; the Customs Law; the Law on Export and Import Duties; the Investment Law; the Public Investment Law; and the Law on Management and Use of Public Assets. This draft proposes many important new regulations, promising to “refresh” many contents in bidding and investor selection activities in Vietnam. Below are the noteworthy new points according to the draft:

New Proposal On Investor Designation, Prioritizing The Field Of Science And Technology

Regarding investor designation, the Ministry of Finance’s draft Law proposes applying this method to investment and business projects needing to be implemented in the following specific cases:

• Projects in the fields of science, technology, innovation, and national digital transformation, where the investor proposing the project is an enterprise owning strategic technology copyright.
• Projects requiring continued selection of an enterprise that previously deployed digital infrastructure and platforms to ensure synchronization and connectivity of digital infrastructure and platforms.
• Other investment and business projects as regulated by the Government. Furthermore, for investment and business projects in the fields of national science, technology, innovation, and digital transformation development, the competent authority will decide to apply domestic bidding or international bidding to select investors. In case domestic bidding is applied, domestic investors are allowed to form joint ventures with foreign investors or use foreign contractors as partners to participate in the bidding. However, the domestic investor must be the leading member of the joint venture. Similarly, for project packages in the fields of national science, technology, innovation, and digital transformation development organizing domestic bidding, domestic contractors forming joint ventures with foreign contractors or using foreign contractors as subcontractors to participate in the bidding, the domestic contractor must also be the leading member of the joint venture.

Clarifying The Cases For Applying Contractor Designation

Regarding regulations on contractor designation, the Ministry of Finance proposes further clarifying the cases allowed to be applied to packages belonging to projects or procurement estimates needing to be implemented in the following situations:

• Urgent, emergency, requiring immediate implementation.
• Implemented to protect state secrets.
• Belonging to nationally important projects according to a Resolution of the National Assembly.
• Ensuring compatibility in technology, copyright; author’s rights.
• Having a research, testing nature.
• Copyright acquisition.
• Serving site clearance or construction site preparation.
• Where there is only one contractor or manufacturer supplying or meeting the requirements.
• National reserves.
• Restoration, repair of relics.
• Packages within the applicable limit.
• And other cases as detailed by the Government. The Government will provide detailed regulations on the cases of contractor designation, the conditions for contractor designation, and the procedure for implementing contractor designation. Notably, during the contract negotiation process, the investor (project owner) and the contractor will negotiate on price to ensure the proposed winning bid price is economical and economically efficient.

Regulation On Investor Selection In Special Cases

In addition, the Ministry of Finance also proposes that investor selection in special cases be applied to investment and business projects meeting one or some of the following specific requirements and conditions:

• Specific requirements regarding investment procedures; land allocation, land lease, sea area allocation procedures; procedures, methods, standards for investor selection and the content of the investment and business project contract.
• Having requirements or requirements to ensure national defense, security, foreign affairs, territorial borders, national interests, implementation of national political tasks.
• Having specific requirements for research, application and development of national science, technology, innovation, and digital transformation, which cannot be applied using one of the investor selection methods stipulated in Clauses 1, 2, and 2a of Article 34 of this Law.

These are the noteworthy new points in the draft, showing the effort to “refresh” the legal framework on bidding and investor selection to meet development requirements in the new context. The official approval of these regulations will have a significant impact on investment and business activities in Vietnam.