What is an optional procurement in bidding? Regulations on optional procurement under current law

Nhấn VÀO ĐÂY để chuyển bài viết sang bản tin tiếng Việt

What is optional procurement in bidding?

Pursuant to Point a Clause 8 Article 39 of the Law on Bidding 2023, optional procurement in bidding is defined as follows:

Optional procurement means the investor’s ability to additionally procure goods, consulting services, and non-consulting services of the bidding package beyond the quantity stated in the contract.

Simply put, this is a mechanism that allows the investor to additionally procure a portion of work volume or goods arising during contract implementation without organizing a new contractor selection process, provided that such content has been specified in the bidding documents and the signed contract.

Examples:

• A procurement package for 100 computers includes an optional procurement provision of up to 20 additional computers. During implementation, the investor has a demand for 10 more computers and may carry out the procurement under the optional procurement mechanism.

• A package for hiring system maintenance services for 12 months includes a clause allowing an additional 03-month extension if actual demand arises.

This mechanism helps:

• Investors become more flexible during project implementation;

• Reduce the time required for organizing a new bidding process;

• Utilize prices that have already undergone competitive bidding;

• Create opportunities to increase the contract value for the winning contractor.

However, the application of optional procurement must comply with the conditions and limits prescribed by current bidding laws.

When is optional procurement applied in bidding?

Also pursuant to Article 39 of the Law on Bidding 2023 (Point c Clause 8), optional procurement in bidding is applied when all of the following conditions are satisfied:

• The contractor has won the bid through open bidding or price negotiation;

• The additional procurement volume does not exceed 30% of the corresponding item volume stated in the contract;

• There is an approved cost estimate for the additional procurement volume;

• The unit price of additionally procured goods or services must not exceed the unit price of the corresponding goods or services stated in the contract;

• It is only applied during the validity period of the contract.

Thus, optional procurement is only applied when fully satisfying the conditions prescribed by the Law on Bidding 2023. Limiting the additional procurement ratio, controlling unit prices, and requiring implementation during the contract validity period are intended to ensure transparency, competitiveness, and prevent abuse of this mechanism in bidding activities.

Regulations on optional procurement under current law

Optional procurement in bidding is specifically regulated in Article 39 of the Law on Bidding 2023 as follows:

Contents of contractor selection plan

...

8. Optional procurement (if any):

a) Optional procurement means the investor’s ability to additionally procure goods, consulting services, and non-consulting services of the bidding package beyond the quantity stated in the contract;

b) In case a bidding package applies optional procurement, the contractor selection plan must clearly state the quantity, volume, and estimated value of the optional procurement portion;

c) Optional procurement shall be implemented when satisfying all of the following conditions: the contractor has won the bid through open bidding or price negotiation; the additional procurement volume does not exceed 30% of the corresponding item volume stated in the contract; there is an approved cost estimate for the additional procurement volume; the unit price of additionally procured goods or services must not exceed the unit price of the corresponding goods or services stated in the contract; and it is only applied during the validity period of the contract.

Thus, optional procurement must be determined in advance in the contractor selection plan and may only be applied when fully satisfying the conditions prescribed by the Law on Bidding 2023 in order to ensure transparency, competitiveness, and efficiency in bidding activities.

FAQs - Frequently asked questions about optional procurement in bidding

Below are some frequently asked questions about optional procurement in bidding for your reference. If you need further support, you can access the Bidding Consulting and Support Center (Support Center) of the Bidding Ecosystem to receive answers from the AI Bidding Consultant or bidding experts.

1. Can optional procurement be adjusted after contractor selection results are available?

Pursuant to Point d Clause 2 Article 114 of Decree No. 214/2025/NĐ-CP:

2. The parties may agree in the contract on the process and procedures for contract amendment as prescribed at Point a Clause 1 Article 70 of the Law on Bidding in the following cases:

…

d) Additional work volume and quantity under the optional procurement mechanism beyond the volume and quantity stated in the contract. In this case, the contract amendment document must clearly specify the volume, value, delivery schedule or service completion time for the additional work and other necessary contents. The delivery schedule or service completion time for the additional work may exceed the original contract implementation period. The investor may apply optional procurement multiple times but must not exceed the maximum level stated in the contractor selection plan.

In case there is a change in value-added tax policy at the time optional procurement is applied, the unit price of goods and services (including value-added tax) under the optional procurement mechanism must not exceed the pre-tax value of the corresponding goods and services in the signed contract plus the value-added tax applicable at the time of optional procurement.

Thus, after contractor selection results are available, the parties may still adjust contents related to optional procurement through a contract amendment document in accordance with legal regulations.

However, such additional procurement must clearly specify the volume, value, and implementation schedule for the additional work. The investor is allowed to apply optional procurement multiple times, provided that the total volume does not exceed the maximum level approved in the contractor selection plan. At the same time, if there are changes in value-added tax policies, the unit price applied to the optional procurement portion must also comply with the limits prescribed by current regulations.

2. Should optional procurement be applied when approving the contractor selection plan?

Optional procurement is prescribed in Clause 8 Article 39 of the Law on Bidding 2023. Accordingly, when approving the contractor selection plan, especially for bidding packages involving medicines, consumable supplies, or goods serving the regular operations of hospitals, investors should consider applying optional procurement with a maximum ratio of 30% to be more proactive during the implementation process.

During contract implementation, if there is no additional procurement demand or the additional procurement volume is lower than the anticipated level, this shall not be considered a violation of bidding regulations.

3. Is the value of optional procurement included in the package price?

Pursuant to Point c Clause 2 Article 39 of the Law on Bidding 2023:

c) For bidding packages applying optional procurement as prescribed in Clause 8 of this Article, the package price shall not include the value of the optional procurement portion.

Thus, the value of the optional procurement portion is not included in the package price. However, the investor must still determine and clearly specify the quantity, volume, and estimated value of the optional procurement portion in the contractor selection plan in accordance with regulations.

Conclusion

Optional procurement is a mechanism that helps investors become more flexible during contract implementation while also creating opportunities for contractors to increase contract value. However, its application must comply with the conditions and limits prescribed by the Law on Bidding 2023 to ensure transparency, competitiveness, and efficiency in bidding activities.

If you need further information about other legal issues or bidding solutions, please contact DauThau.info for support:

• Bidding Consulting and Support Center: https://support.dauthau.net 

• Zalo OA: https://zalo.me/710508638087188690 

• Hotline: 0904.634.288 or 024.8888.4288

• Email: [email protected] 

• Chat channel: m.me/dauthau.info 

• Contractor Support Group: www.fb.com/groups/nhathaumuasamcong