To further refine the legal framework for bidding and selecting investors to implement investment projects in accordance with the new provisions of the Law on Bidding 2023, on February 27, 2024, the Government issued Decree No. 23/2024/NĐ-CP detailing certain provisions and measures for implementing the Law on Bidding regarding the selection of investors to implement projects subject to bidding under the regulations of sectoral and field management laws ("Decree 23"). Decree 23 includes notable guiding provisions as follows:
1. Specific guidance on projects subject to investor selection bidding under sectoral and field management laws
1.1. Projects subject to investor selection bidding
- International football betting projects;
- Investment projects for the construction of solid waste treatment facilities;
- Dredging projects in port waters, inland waterways combined with product recovery as regulated by maritime and inland waterway transport laws;
- Aviation specialized service projects at airports, except for domestic airlines' air traffic control centers at airports;
- Specialized road transport service projects including mixed-use functional areas serving public and commercial purposes;
- Renovation and reconstruction investment projects for apartment buildings;
- Water supply source construction investment projects, water supply system construction projects;
- Projects subject to bidding when two or more investors express interest and register for implementation, including: education, vocational training, healthcare, culture, sports, environment, except for projects specified in points (ii) and (vii) above; horse racing, dog racing investment projects, including horse racing and dog racing betting activities; social housing construction investment projects.
1.2. For projects within the scope mentioned above but involving land use, there are 2 cases
a. Projects subject to Decree 23 must meet the following conditions:
- Subject to state land recovery as regulated by land laws;
- Not meeting the conditions for land use rights auction, not within the scope of auctioning state assets.
b. Projects not subject to Decree 23:
- Projects using land through transfer, lease of land use rights, capital contribution by land use rights for production, business purposes;
- Projects subject to and meeting the conditions for land use rights auction as regulated by land laws, laws on management, and use of state property;
- Projects assigned land by the State, leased land without land use rights auction, without investor selection bidding as regulated by land laws.
2. Bonus points when evaluating bid dossiers
In accordance with Article 4, Article 10 of the Bidding Law on Bidding 2023, Decree 23 specifies the bonus levels for entities entitled to bonuses in investor selection as follows:
- Investors proposing advanced technology solutions, environmentally friendly technologies, best available techniques to minimize environmental pollution for projects classified as having high environmental impact according to environmental protection laws: entitled to a 5% bonus;
- Investors committing to technology transfer under the priority technology list as regulated by high-tech laws or the encouraged technology list as regulated by technology transfer laws: entitled to a 2% bonus.
The bonus calculation method involves adding points to the total integrated score when evaluating bid dossiers.
3. Regulations on bid opening time
According to Article 14, Clause 4 of Decree No. 63/2014/NĐ-CP, the bid opening time is determined within 01 hour from the bid closing time. This time frame applies to contractor selection through one-stage one-envelope bidding for extensive bidding procedures, limited bidding packages for non-consulting services, procurement of goods, construction, mixed packages under one-stage bidding. Replacing this provision, the new guidelines in Decree 23 stipulate that bid opening must be conducted publicly and commence immediately within a 02-hour period from the bid closing time. This timeframe is compatible with the bid opening deadline on the online bidding system, aligning with the current trend of promoting online bidding.
4. Winning investors establish enterprises to manage projects or directly implement projects
Clause 5, Article 57 of Decree No. 25/2020/NĐ-CP stipulated that investors, after approval of the selected investor results, have the right to establish project enterprises to implement projects. However, Decree No. 25/2020/NĐ-CP does not specify the rights, obligations, and responsibilities of winning bidders after establishing project enterprises; this has led to the consequence that many winning bidders "quietly withdraw capital" from project enterprises, thereby failing to achieve the purpose of selecting the most capable investor to implement. To address this issue, Decree 23 supplements stringent provisions, binding the responsibilities of investors in case of establishing project enterprises after winning bids. Specifically:
- Enterprises must be wholly owned by the winning investor;
- Inherit the rights and obligations to implement investment projects that the winning investor committed in bid dossiers and contracts;
- Must meet the conditions for establishment, operation as regulated by enterprise laws, investment laws, construction laws, land laws, and laws on sectoral and field management;
- Cannot transfer business investment projects until meeting the conditions specified in Clause 2, Article 76 of the Bidding Law and conditions specified by investment laws, sectoral and field management laws.
The specific regulation of project enterprise obligations above also aims to prevent cases where investors may establish then transfer shares/capital contributions of project enterprises to third parties as a disguised form of project transfer, not fulfilling commitments in bid invitations and related contracts.
5. Roadmap for implementing online investor selection
- From January 01, 2025: Conduct online expressions of interest procedures within the country on the National Bidding Network System (hereinafter referred to as the System).
- From July 01, 2025: Implement online investor selection for investment projects applying extensive bidding, limited domestic bidding methods such as one-stage one-envelope bidding, two-stage one-envelope bidding on the System.
- For investment projects subject to international bidding, online investor selection is not applicable, but project information must be publicly disclosed on the System.
Decree 23 takes effect from February 27, 2024.
- Projects approved by competent authorities for investment decision-making or approved project lists but as of the effective date of the Law on Bidding 2023, preliminary requirements for capacity, experience have not been issued, apply the provisions of the Law on Bidding 2023 and Decree 23;
- Projects not falling into the transition cases as regulated by Decree 23 are implemented from January 01, 2024, to the effective date of Decree 23, which complies with the provisions of the Law on Bidding 2023 and sectoral and field management laws, without having to re-implement corresponding provisions of Decree 23.
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