11 Unfair and Non-Transparent Practices in Bidding

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11 Unfair and Non-Transparent Practices in Bidding

Clause 6, Article 16 of the 2023 Bidding Law specifies 11 unfair and non-transparent practices in bidding, including:

1. Participating in bidding as a bidder or investor for a package or business investment project where one acts as the inviting party, investor, or performs the tasks of the inviting party, investor, in violation of the 2023 Bidding Law.

2. Participating in the preparation and simultaneously in the appraisal of the invitation for expression of interest, invitation for prequalification, invitation for bids, and request for proposals for the same package or business investment project.

3. Participating in the evaluation of bidding documents, proposals, and simultaneously participating in the appraisal of bidder or investor selection results for the same package or business investment project.

4. Individuals belonging to the inviting party or investor directly participating in the bidder or investor selection process, or participating in the expert group or the appraisal group for bidder or investor selection results, or having authority over packages or business investment projects where their relatives, as defined by the Enterprise Law, are bidding or legally representing a bidder or investor in the bidding.

5. bidders participating in bidding for goods procurement, construction, or non-consulting services packages where the bidder has provided consulting services such as:

• Preparing, verifying, appraising estimates, technical designs, construction drawing designs, or FEED (Front-End Engineering Design).
• Preparing and appraising prequalification documents and bidding documents.
• Evaluating prequalification applications and bidding documents.
• Inspecting goods.
• Appraising bidder selection results.
• Supervising contract execution.

6. Bidding for packages within projects or business investment projects by bidders who have held leadership or management positions at the inviting party's organization within 12 months from the date of leaving that organization.

7. Consulting bidders providing supervision and also conducting inspection consulting for the packages they supervise.

8. Applying bidder or investor selection methods that are not open bidding without meeting the conditions stipulated by the 2023 Bidding Law.

9. Specifying particular brands or origins of goods in bidding documents for procurement, construction, or mixed packages when applying open bidding, restricted bidding, or competitive offering, except as stipulated in point e, clause 3, Article 10, clause 2, Article 44, and clause 1, Article 56 of the 2023 Bidding Law.

10. Stipulating conditions in bidding documents aimed at limiting the participation of bidders or investors or creating advantages for one or several bidders or investors, leading to unfair competition, violating clause 3, Article 44, and clause 2, Article 48 of the 2023 Bidding Law.

11. Splitting projects or procurement estimates into smaller packages to facilitate direct contracting; splitting projects or procurement estimates to limit bidder participation.
All the above-mentioned practices are prohibited in bidding. bidders and inviting parties need to be aware to avoid unfortunate incidents during the bidding process.

Handling of Unfair and Non-Transparent Practices in Bidding

Depending on the nature, extent of the violation, and the damage caused, unfair and non-transparent practices in bidding will be handled according to legal regulations.

1. Fines:

Article 37. Violations of prohibited acts in bidding
Fines ranging from 200,000,000 VND to 300,000,000 VND for any of the following acts that do not constitute a crime under Article 222 of the Penal Code:
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5. Violations of regulations on ensuring fairness and transparency in bidding activities
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2. Criminal liability:

For more severe cases, unfair and non-transparent practices in bidding may also lead to criminal liability according to Article 222 of the 2015 Penal Code, as follows:

Anyone who commits one of the following acts, causing damage from 100,000,000 VND to less than 300,000,000 VND or less than 100,000,000 VND but has been disciplined for this act and continues to violate, shall be subject to non-custodial reform for up to 3 years or imprisonment from 1 year to 5 years:
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đ) Violating regulations on ensuring fairness and transparency in bidding activities;
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