Summary of 25 Common Bidding scenarios and How to Handle Them (Part 2)

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In Part 1, DauThau.info shared the handling of 13 common bidding scenarios.Below, DauThau.info will continue to share the remaining 12 scenarios to provide you with more information on this subject. Let's refer to the detailed article below!

Scenario 14: The first-ranked bidder does not negotiate the contract

For packages requiring contract negotiations as stipulated in Clause 1, Article 43 of the Law on Bidding 2023, if the first-ranked bidder does not proceed with negotiations, does not sign the negotiation minutes, or negotiations fail, the investor considers inviting the next-ranked bidder (if any) for negotiations.

The negotiation content is based on the bid document and the bid price after error correction, deviation adjustment, and discount (if any) of the invited bidder. If negotiations fail, the procuring entity reports to the investor for consideration and decision on inviting the next-ranked bidders (if any) for contract negotiations; the negotiation content is based on the bid document and the bid price after error correction, deviation adjustment, and discount (if any) of the invited bidder.

If the invited bidders refuse to negotiate, do not sign the negotiation minutes, or negotiations fail, the investor considers canceling the bidding as prescribed in Clause 1, Article 17 of the Law on Bidding 2023.

If the next-ranked bidder is invited for contract negotiations within the validity period of the bid document but does not attend the negotiations or fails to sign the negotiation minutes, the bid security will not be refunded. If the next-ranked bidder's bid document validity expires, the procuring entity must request the bidder to extend the bid document validity and bid security before contract negotiations.

Scenario 15: Proposed winning bid price below 50% of the approved package price

If the proposed winning bid price is below 50% of the approved package price, the investor requires the bidder to clarify the cost components of the bid price and consider relevant evidence as follows:

1. Economic factors related to construction methods, production processes, or service provision.
2. Economic solutions applied or special advantages of the bidder leading to price advantages.
3. The origin of goods, services, and personnel provided for the package, ensuring compliance with legal regulations.

Scenario 16: Multiple top-ranked bidders with equal evaluations

If multiple bidders are equally evaluated as the best after evaluation, handle the scenario in the following priority order until the winning bidder is selected:

1. Award to small and medium enterprises owned by women according to the law on supporting small and medium enterprises (if any).
2. Award to the bidder with higher technical points or fewer acceptable criteria for technical evaluation for packages using the lowest price method; award to the bidder with the lowest corrected, adjusted, and discounted bid price (if any) for packages using the evaluated price method or the combined technical and price method.
3. Award to the bidder with the main office located in the locality where the package is implemented.
4. Award to the bidder employing at least 25% disabled persons with labor contracts of at least 03 months, valid until the bid closing time.
5. Award to the bidder employing at least 25% ethnic minority persons with labor contracts of at least 03 months, valid until the bid closing time.
6. Award to the bidder employing at least 25% female employees with labor contracts of at least 03 months, valid until the bid closing time.
7. Allow these bidders to re-submit their bid prices to select the lowest bid price. Bidders are not allowed to submit prices higher than their previous corrected, adjusted, and discounted bid prices (if any). Re-submission follows method 1 of scenario 6 in Part 1.
8. Invite these bidders to participate in an expedited online bidding process. Bidders are not allowed to submit prices higher than their previous corrected, adjusted, and discounted bid prices (if any).

Scenario 17: Winning bidder does not finalize and sign the contract

If the winning bidder does not finalize and sign the contract or fails to meet technical and financial capacity requirements at the time of contract signing as stipulated in Clause 2, Article 66 of the Law on Bidding, the investor handles the scenario as follows:

Option 1: Invite the second-ranked bidder (if any) to finalize the contract, requiring the bidder to extend or restore the validity of the bid document and bid security (if expired) with a new validity period of at least 30 days from the expected contract finalization start date.

If the second-ranked bidder does not agree to finalize the contract or extend or restore the bid document and bid security validity as required, the investor handles the scenario according to one of the two options below.

Contract finalization follows Article 32 of Decree 24/2024/ND-CP. The contract finalization content is based on the bid document and the corrected, adjusted, and discounted bid price (if any) of the second-ranked bidder. After finalizing the contract with the second-ranked bidder, the investor cancels the previous bid award decision and issues a new award decision to the second-ranked bidder before signing the contract with them.

If the second-ranked bidder does not accept the finalized contract results or refuses to sign the contract with the investor, the bid security will not be refunded unless in cases of force majeure or if the investor does not comply with the contract finalization principles. In this case, the investor handles the scenario according to one of the two options below.

Option 2: Invite the third-ranked bidder (if any) to finalize the draft contract. If the third-ranked bidder does not agree to finalize the contract or extend or restore the bid document and bid security validity as required, the investor considers inviting the next-ranked bidders (if any) to finalize the contract or cancel the bidding according to Clause 1, Article 17 of the Law on Bidding 2023.

The invited bidder must extend or restore the validity of the bid document and bid security (if expired) with a new validity period of at least 30 days from the expected contract finalization start date

Contract finalization follows Article 32 of Decree 24/2024/ND-CP. The contract finalization content is based on the bid document and the corrected, adjusted, and discounted bid price (if any) of the invited bidder. After finalizing the contract, the investor cancels the previous bid award decision and issues a new award decision to the finalized bidder before signing the contract with them.

If the invited bidder does not accept the finalized contract results or refuses to sign the contract with the investor, the bid security will not be refunded, and the investor considers canceling the bidding according to Clause 1, Article 17 of the Law on Bidding 2023.

Option 3: Cancel the bidding according to Clause 1, Article 17 of the Law on Bidding 2023.

Scenario 18:  Disqualifying the winning bidder due to their fault

If the authorized person decides to disqualify the winning bidder during contract performance due to evidence of violating Article 16 of the Law on Bidding or related laws leading to a lack of competition, fairness, transparency, or economic efficiency, the investor handles as follows:

1. Confiscate the performance security of the bidder and recover any advance payments (if any).
2. Pay the bidder for the completed, accepted work according to the contract.
3. Terminate the contract with the bidder; if only one joint venture member violates and is banned from bidding activities under Clause 1, Article 125 of Decree 24/2024/ND-CP, the remaining members are not considered as having incomplete contracts due to the bidder's fault.
4. Post the violating bidder's information on the National Bidding Network System within 05 working days from the termination decision date and send the termination decision and other violation handling documents (if any) to the Ministry of Planning and Investment for aggregation and monitoring.
5. After terminating the contract with the previous winning bidder, the uncompleted work is awarded to the second-ranked bidder. If the second-ranked bidder does not accept the contract, the investor awards another bidder or separates the uncompleted work into a new package and organizes bidding according to the law. If necessary, review and approve the package price for the uncompleted work before organizing bidding. If direct contracting is applied, the uncompleted work value is calculated as the contract value minus the completed work value.

Scenario 19: Disqualifying the winning bidder due to the fault of the investor, procuring entity, expert group, or appraisal group

If the authorized person decides to disqualify the winning bidder during contract performance due to evidence of violations by the investor, procuring entity, expert group, or appraisal group under Article 16 of the Law on Bidding or related laws leading to a lack of competition, fairness, transparency, or economic efficiency, not due to the winning bidder's fault, the authorized person handles as follows:

1. Require the investor to recover any advance payments (if any) and terminate the contract with the bidder. The bidder is refunded the performance security and compensated for costs related to contract termination due to the investor's fault according to the contract. The investor is responsible for compensating the bidder for damages according to the contract.
2. The uncompleted work is separated into a new package for organizing bidding according to the law. If necessary, review and approve the package price.
3. If over 70% of the contract work has been completed and handling according to the above two methods does not bring economic efficiency, the authorized person decides to allow the continuation of the contract with the winning bidder.

Scenario 20: Partnership member violating the contract, losing the capacity to continue the contract

If one or more Partnership members violate the contract, lose the capacity to continue the contract, seriously affecting the package's progress, quality, and efficiency, handle as follows:

1. Penalize the contract according to the contract terms for all Partnership members.
2. Confiscate the performance security of all Partnership members.
3. Terminate the contract with one or more violating Partnership members; in this case, only the violating Partnership members are considered as having incomplete contracts and posted on the National Bidding Network System. The remaining members continue the contract corresponding to their assigned work in the Partnership. Within 05 working days from the termination decision date, the investor must post the violating Partnership member's information on the National Bidding Network System; the notice must state the violation leading to contract termination and send the decision to the Ministry of Planning and Investment for aggregation and monitoring.
4. The violating member's work is assigned to the remaining members if they have sufficient capacity and experience. In this case, the remaining members must provide new performance security corresponding to the uncompleted work value.
5. If the remaining members refuse or lack capacity and experience, the investor reports to the authorized person to separate the violating member's work into a new package for direct contracting according to point e, Clause 20, Article 131 of Decree 24/2024/ND-CP or organize bidding according to the law.

Scenario 21: Bidder violating the contract, losing the capacity to continue the contract

If the bidder violates the contract, loses the capacity to continue the contract, seriously affecting the package's progress, quality, and efficiency, the investor considers and reports to the authorized person to terminate the contract with the bidder. The violating bidder is considered as having incomplete contracts.

For uncompleted work, direct contracting is applied to another bidder with the work value calculated as the contract value minus the completed and accepted work value.

The investor must ensure the contracted bidder has sufficient capacity and experience to meet the remaining work requirements.

If direct contracting is not applied, a new package is formed to organize bidding. If necessary, review the package price for the remaining work before organizing bidding according to the law. If the contract delay is not due to the bidder's fault, contract termination is not allowed to replace the bidder.

If the contract must be terminated with the violating bidder to replace them with a new bidder, within 05 working days from the termination decision date, the investor must post the violating bidder's information and replacement bidder's information on the National Bidding Network System, and send the termination decision and other contract violation handling documents (if any) to the Ministry of Planning and Investment for aggregation and monitoring.

The notice must state the reason for the violating bidder's contract termination, the replacement bidder selection method, and the replacement bidder's name in case of direct contracting.

Scenario 22: Adjusting work scope among Partnership members to expedite contract progress

For Partnership bidders, if the contract progress needs to be expedited compared to the signed contract (requiring contract modification), the investor reports to the authorized person to allow the investor and bidder to agree on adjusting the work scope among Partnership members to meet the shortened progress.

In this case, the authorized person and investor must ensure that the member taking on the additional work scope has sufficient capacity and experience for the work, and the work scope adjustment among Partnership members is not for transferring the contract.

Scenario 23: Bidder personnel convicted by the court for serious bidding violations

If a bidder's personnel (employed by the bidder at the time of the violation) is convicted by the court for serious bidding violations under criminal law to win the bid, the investor must terminate the contract with the bidder and confiscate the performance security; the bidder is only paid for completed, accepted work according to the contract.

The bidder is considered as having incomplete contracts and posted on the National Bidding Network System; the notice must state the violation leading to contract termination. For uncompleted work, the investor applies direct contracting according to point e, Clause 20, Article 131 of Decree 24/2024/ND-CP or separates it into a new package for bidding according to the law.

Scenario 24: Bidder personnel found by investigation agency to have serious bidding violations

If a bidder's personnel (employed by the bidder at the time of the violation) is found by the investigation agency to have serious bidding violations under criminal law to win the bid, but the personnel has not been convicted by the court or the bidder has not been banned from bidding activities, the bidder can continue participating in the bid.

Scenario 25: Changing goods compared to the contract

During contract performance, if the bidder proposes to change the goods with newer production versions or years than those stated in the contract, the investor can approve the bidder's proposal if it meets all the following conditions:

1. The bidder notifies the investor in writing.
2. The replacement goods and the goods stated in the contract are from the same manufacturer and have the same origin.
3. The replacement goods have equivalent or better technical features, configuration, specifications, and other requirements compared to the goods stated in the contract.
4. Suitable for use needs.
5. The unit price of the replacement goods does not exceed the unit price stated in the contract.

Thus, DauThau.info has shared with you all 25 common bidding scenarios and how to handle each specific scenario. You can refer to these to gain more experience in handling arising scenarios during the bidding process.
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