Lawyers "give tips" to contractors to avoid mistakes when submitting petitions

(PLVN) - In a competitive bidding environment, a decision to disqualify a contractor sometimes stems from seemingly small errors in the evaluation process. In such cases, submitting a petition is an effective way to protect the legitimate rights and interests of the business. In reality, many contractors lose all their petition costs or have their petitions rejected, simply because they do not understand the process or submit their petitions at the wrong time.

Accordingly, there are usually 3 typical situations related to the contractor's petition. Specifically:

In the first situation, if a contractor makes a recommendation when being eliminated at the stage of opening technical proposals, should the recommendation be made during the contractor selection process or regarding the contractor selection result?

Second situation, if the petition sent by the contractor on the System does not have the signature of the signer and is not stamped, will the investor resolve that petition?

In the third situation, if the petition does not show the name, seal of the company or digital signature of the petitioning company, is the petition in accordance with regulations and will it be resolved?

Lawyer Nguyen Van Tuan - Director of TGS Law Firm LLC said that in case of arising situations that are not specifically and clearly regulated in the contractor selection plan; invitation for expression of interest, invitation for pre-qualification, invitation for bid, request for proposal and other contents in bidding activities, the competent person, the investor decides and is responsible before the law for handling the situation according to the principles of ensuring competition, fairness, transparency, economic efficiency and accountability as prescribed in Article 88 of the Bidding Law 2023, the Contractor can submit a petition to the investor, the competent person within 10 days from the date the contractor selection results are posted on the National Bidding Network as prescribed in Clause 2, Article 92 of the Investment Law when seeing that their legitimate rights and interests are affected.

For situation 1 , Lawyer Tuan said that the contractor can make a request at the stage of opening the financial proposal. However, for issues before the announcement of the results of the selection of contractors and investors, in order to be considered and resolved, the request must meet the following conditions:

Firstly: For petitions on the content of the bidding documents, petitions may be from agencies and organizations interested in the bidding package or business investment project; for other contents on the process of organizing the selection of contractors and investors, petitions must be from contractors and investors participating in the bidding;

Second: The petition is sent to the petition handling unit specified in Clause 1, Article 91 and Clause 1, Article 92 of the 2023 Law on Bidding before the announcement of the results of the selection of contractors and investors.

Regarding the second situation, according to Lawyer Tuan, at Point b, Clause 1, Article 90 of the 2023 Law on Bidding stipulates: "The petition must have the signature and seal (if any) of the legal representative of the contractor, investor, agency or organization sending the petition or be digitally signed and sent on the National Bidding Network System".

Accordingly, if the petition submitted by the contractor on the System does not have the signature of the petitioner and is not stamped, the person responsible for handling the petition shall notify the contractor in writing that the petition will not be considered or resolved because it does not meet the conditions prescribed in Clause 3, Article 90 of the 2023 Law on Bidding.

Furthermore, the Contractor's petition shall only be considered and resolved before a complaint, denunciation or lawsuit is filed. In case the Contractor initiates a lawsuit, complaint or denunciation during the process of resolving the petition, the petition resolution shall be terminated immediately in accordance with the provisions of Clause 2, Article 89 of the 2023 Law on Bidding.

Regarding the third situation , Lawyer Tuan said that, although the petition of the contractor was successfully submitted on the System, if the petition does not show the name, company stamp or digital signature of the petitioning contractor, then the petition is not in accordance with the provisions of law and the person responsible for resolving the petition does not consider or resolve the petition but notifies the contractor in writing about the fact that it does not meet the conditions prescribed in Clause 3, Article 90 of the Law on Bidding 2023.

The purpose of handling petitions is to ensure fairness, publicity, transparency and compliance with the law in bidding activities, protecting the legitimate rights and interests of relevant parties in accordance with the provisions of law.

One of the conditions that the Contractor is interested in is related to the cost of submitting a petition to the standing unit assisting the Chairman of the Advisory Council in handling petitions (hereinafter referred to as the standing unit) before or at the same time as the petition according to Point d, Clause 2, Article 90 of the 2023 Law on Bidding.

Accordingly, in case the bidder's petition is concluded to be correct by the competent authority, the petition resolution document must clearly state the measures, methods and time to remedy the consequences (if any); the bidder with the petition will receive back the submitted petition resolution costs. In case the bidder's petition is concluded to be incorrect, the response document must clearly explain the reasons; the bidder with the petition will not be refunded the submitted petition resolution costs according to Clause 5, Article 91 of the 2023 Law on Bidding.

In Clause 8, Article 12 of Decree 24/2024/ND-CP stipulating costs in contractor selection, the costs for the Advisory Council to resolve contractors' recommendations on contractor selection results in contractor selection are calculated as a percentage of the bid price of the contractor with the recommendation as follows:

̶ Bid price under 50,000,000,000 VND, rate 0.03% but minimum is 5,000,000 VND

̶ Bid price from 50,000,000,000 VND to under 100,000,000,000 VND, rate 0.025% but minimum is 15,000,000 VND

̶ Bid price from 100,000,000,000 VND to under 200,000,000,000 VND, rate 0.02% but minimum is 25,000,000 VND

̶ Bid price from 200,000,000,000 VND or more, rate 0.015% but minimum is 40,000,000 VND and maximum is 60,000,000 VND.

Thus, when a contractor has a petition, he must pay a sum of money to resolve the petition to the Advisory Council for the Petition Resolution. The consulting fee for the Advisory Council to resolve the contractor's petition on the results of contractor selection will be calculated as a percentage of the contractor's bid price.

However, it should be noted that for bidding packages applying the one-stage two-envelope method, two-stage two-envelope method, in case the bidder has a recommendation not to open the financial proposal, the cost determination for the Advisory Council will be based on the bidding package price.

Nguyen Vu

Source: https://baophapluat.vn/luat-su-mach-nuoc-cho-nha-thau-phong-tranh-sai-sot-khi-gui-don-kien-nghi-post549705.html