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					                                                                                               Annex B: BLI 2008 Result Table with Consolidated Assessors' Qualitative Comments

                                                                               Pillar/ Indicator/ Sub-Indicators                            Score
PILLAR I – THE LEGISLATIVE AND REGULATORY FRAMEWORK

                                                                                                     Scope of application and coverage of
   Indicator 1 – Public procurement legislative and regulatory framework achieves the agreed




                                                                                                1a   the legislative and regulatory          2.51
                                                                                                     framework




                                                                                                1b   Procurement Methods                     2.29
                        standards and complies with applicable obligations




                                                                                                1c   Advertising rules and time limits       2.22




                                                                                                1d   Rules on participation                  2.02




                                                                                                     Tender documentation and technical
                                                                                                1e                                           2.24
                                                                                                     specifications


                                                                                                1f   Tender evaluation and award criteria    2.42



                                                                                                     Submission, receipt and opening of
                                                                                                1g                                           2.36
                                                                                                     tenders


                                                                                                1h   Complaints                              2.40
           Indicator 2 – Existence of Implementing Regulations
                                                                      Implementing regulation that provides
                                                                 2a   defined processes and procedures not      2.11
                                                                      included in higher level legislation


                                                                      Model tender documents for goods,
                                                                 2b                                             2.42
                                                                      works and services
                            and Documentation




                                                                 2c   Procedures for pre-qualification          2.65

                                                                      Procedures suitable for contracting for
                                                                 2d   services or other requirements in         2.13
                                                                      which technical capacity is a key
                                                                       User’s guide or manual for contracting
                                                                 2e                                             1.18
                                                                      entities

                                                                      General Conditions of Contract (GCC)
                                                                      for public sector contracts covering
                                                                 2f   goods, works and services consistent      2.24
                                                                      with national requirement and, when
                                                                      applicable, international requirements

PILLAR II – INSTITUTIONAL FRAMEWORK AND MANAGEMENT CAPACITY
  mainstreamed and well integrated into the public sector




                                                                      Procurement planning and data on
      Indicator 3 – The public procurement system is




                                                                      costing are part of the budget
                                                                 3a                                             1.95
                                                                      formulation process and contribute to
                                                                      multiyear planning
                     governance system




                                                                      Budget law and financial procedures
                                                                 3b   support timely procurement, contract      1.55
                                                                      execution and payment



                                                                       Procurement actions are not initiated
                                                                 3c   until budget appropriations have been     1.82
                                                                      made
egrated into the public sector
nce system

c procurement system is
                                                                                         Systematic preparation and completion
                                                                                         of reports for certification of budget
                                                                                    3d                                              1.25
                                                                                         execution and for reconciliation of
                                                                                         delivery with budget programming

                                                                                         The status and basis for the
                                                                                         normative/regulatory body is covered
                                                                                    4a                                              2.40
                                                                                         in the legislative and regulatory
                                                                                         framework
            Indicator 4 – The country has a functional normative/ regulatory body




                                                                                          The normative/regulatory body has a
                                                                                         defined set of responsibilities that do
                                                                                         not overlap with other agencies, and
                                                                                         these responsibilities include, but are
                                                                                         not limited to the following: providing
                                                                                         advice to contracting entities, drafting
                                                                                         amendments to the legislative and
                                                                                         regulatory framework and
                                                                                         implementing regulations, monitoring
                                                                                         public procurement, providing
                                                                                    4b                                              2.35
                                                                                         procurement information, managing
                                                                                         statistical databases, reporting on
                                                                                         procurement to other parts of
                                                                                         government, developing and
                                                                                         supporting implementation of initiatives
                                                                                         for improvements of the public
                                                                                         procurement system and providing
                                                                                         implementation tools and documents
                                                                                         to support training and capacity
                                                                                         development of implementing staff.

                                                                                         The normative/regulatory body’s
                                                                                         organization, funding, staffing, and
                                                                                         level of independence and authority
                                                                                    4c                                              2.13
                                                                                         (formal power) to exercise its duties
                                                                                         should be sufficient and consistent
                                                                                         with the responsibilities
                                                                                          The responsibilities should also
                                                                                         provide for separation and clarity so as
                                                                                    4d   to avoid conflict of interest and direct   2.40
                                                                                         involvement in the execution of
                                                                                         procurement transactions

                                                                                         The country has a system for
     Indicator 5 – The country has




                                                                                         collecting and disseminating
                                                                                         procurement information, including
                                                                                    5a                                              2.51
                                                                                         tender invitations, requests for
                                                                                         proposals, and contract award
                                                                                         information
                             capa
   Indicator 5 – The country has institutional development

                                                                   The country has systems and
                                                                  procedures for collecting and
                                                             5b                                             1.55
                                                                  monitoring national procurement
                                                                  statistics
                           capacity




                                                                  The country has a sustainable strategy
                                                                  to provide training, advice and
                                                                  assistance to develop the capacity of
                                                             5c   government and private sector             1.89
                                                                  participants to understand the rules
                                                                  and regulations and how they should
                                                                  be implemented

                                                                  Quality control standards are
                                                                  disseminated and used to evaluate
                                                             5d                                             1.40
                                                                  staff performance and address
                                                                  capacity development issues

PILLAR III – PROCUREMENT OPERATIONS AND MARKET PERFORMANCE

                                                                  The level of procurement competence
   Indicator 6 – The country’s procurement operations and




                                                                  among government officials within the
                                                             6a                                             2.04
                                                                  entity is consistent with their
                                                                  procurement responsibilities


                                                                   The procurement training and
                                                                  information programs for government
                                                             6b                                             2.13
                     practices are efficient




                                                                  officials and for private sector
                                                                  participants are consistent with demand


                                                                  There are established norms for the
                                                                  safekeeping of records and documents
                                                             6c                                             1.73
                                                                  related to transactions and contract
                                                                  manage




                                                                  There are provisions for delegating
                                                             6d   authority to others who have the          2.64
                                                                  capacity to exercise responsibilities




                                                                  There are effective mechanisms for
   Indicator 7 – Functionalit




                                                             7a   partnerships between the public and       1.42
                                                                  private sector
             procurement m
        Indicator 7 – Functionality of the public
                  procurement market




                                                                   Private sector institutions are well
                                                              7b   organized and able to facilitate access    2.22
                                                                   to the market




                                                                   There are no major systemic
                                                                   constraints (e.g., inadequate access to
                                                              7c   credit, contracting practices, etc.)       2.55
                                                                   inhibiting the private sector’s capacity
                                                                   to access the procurement market

                                                                    Procedures are clearly defined for
  administration and dispute resolution




                                                                   undertaking contract administration
   Indicator 8 – Existence of contract




                                                                   responsibilities that include inspection
                                                              8a   and acceptance procedures, quality         1.76
                                                                   control procedures, and methods to
                                                                   review and issue contract
                                                                   amendments in a timely manner
                provisions




                                                                    Contracts include dispute resolution
                                                                   procedures that provide for an efficient
                                                              8b   and fair process to resolve disputes       1.51
                                                                   arising during the performance of the
                                                                   contract


                                                                   Procedures exist to enforce the
                                                              8c   outcome of the dispute resolution          1.60
                                                                   process

PILLAR IV – INTEGRITY AND TRANSPARENCY OF THE PUBLIC PROCUREMENT SYSTEM
        Indicator 9 – The country has effective control and




                                                                    A legal framework, organization,
                                                                   policy, and procedures for internal and
                                                              9a   external control and audit of public       1.53
                                                                   procurement operations are in place to
                                                                   provide a functioning control framework



                                                                    Enforcement and follow-up on findings
                                                                   and recommendations of the control
                                                              9b                                              1.76
                                systems




                                                                   framework provide for an environment
                                                                   that fosters compliance
    – The country has effective control and audit
                systems

                                                                       The internal control system provides
                                                                9c    timely information on compliance to        1.91
                                                                      enable management action

                                                                       The internal control systems are
                                                                9d    sufficiently defined to allow              1.45
                                                                      performance audits to be conducted

                                                                      Auditors are sufficiently informed about
                                                                      procurement requirements and control
                                                                9e                                               1.58
                                                                      systems to conduct quality audits that
                                                                      contribute to compliance

                                                                    Decisions are deliberated on the basis
                                                                    of available information, and the final
               Indicator 10 – Efficiency of appeals mechanism




                                                                10a decision can be reviewed and ruled           2.40
                                                                    upon by a body (or authority) with
                                                                    enforcement capacity under the law

                                                                    The complaint review system has the
                                                                    capacity to handle complaints
                                                                10b                                              2.33
                                                                    efficiently and a means to enforce the
                                                                    remedy imposed

                                                                      The system operates in a fair manner,
                                                                      with outcomes of decisions balanced
                                                                10c                                              2.16
                                                                      and justified on the basis of available
                                                                      information

                                                                     Decisions are published and made
                                                                10d available to all interested parties and      1.65
                                                                    to the public
                                                                    The system ensures that the complaint
                                                                    review body has full authority and
                                                                10e                                              1.78
                                                                    independence for resolution of
                                                                    complaints

Indicator 11                                                          Information is published and
– Degree of                                                           distributed through available media,
                                                                11a                                              2.47
access to                                                             with support from information
information                                                           technology when feasible
                                                                                       The legal and regulatory framework
                                                                                      for procurement, including tender and
                                                                                      contract documents, includes
                                                                                      provisions addressing corruption,
                                                                                  12a fraud, conflict of interest, and unethical    2.02
                                                                                      behavior, and sets out (either directly
                                                                                      or by reference to other laws) the
    Indicator 12 – The country has ethics and anti-corruption measures in place




                                                                                      actions that can be taken with regard
                                                                                      to such behavior

                                                                                       The legal system defines
                                                                                      responsibilities, accountabilities and
                                                                                  12b penalties, for individuals and firms          2.35
                                                                                      found to have engaged in fraudulent or
                                                                                      corrupt practices



                                                                                        Evidence of enforcement of rulings
                                                                                  12c                                               2.02
                                                                                        and penalties exists



                                                                                      Special measures exist to prevent and
                                                                                  12d detect fraud and corruption in public         2.22
                                                                                      procurement

                                                                                      Stakeholders (private sector, civil
                                                                                      society, and ultimate beneficiaries of
                                                                                      procurement/end-users) support the
                                                                                  12e                                               1.76
                                                                                      creation of a procurement market
                                                                                      known for its integrity and ethical
                                                                                      behaviors

                                                                                        The country should have in place a
                                                                                        secure mechanism for reporting
                                                                                  12f                                               1.84
                                                                                        fraudulent, corrupt or unethical
                                                                                        behavior


                                                                                       Existence of Codes of Conduct/Codes
                                                                                      of Ethics for participants that are
                                                                                      involved in aspects of the public
                                                                                  12g                                               1.95
                                                                                      financial management systems, that
                                                                                      also provide for disclosure for those in
                                                                                      decision making positions


Total Score                                                                                                                        109.13
Rating of the Vietnam procurement system and   C-
ranked level of the PD Indicator 2b            67%
ble with Consolidated Assessors' Qualitative Comments

                                                                       Assessor’s Comments
RAMEWORK

        The Law on Procurement provides for fundamental provisions of a good public procurement system and adequately covers all areas of procurement
        having high-level legal status as passed by the National Assembly. The Implementing Decree No. 111/2006/ND-CP guiding the implementation of the Law
        and the GoV recently developed and issued a number of guiding implementation (GI) documents including SBDs, contract forms…

        Preferred mode is open bidding and the Law has provision for International bidding (the law respects international treaties/agreements on the matter). The
        thresholds for Direct Appointment in Art. 20 (dd) are quite high, particularly for consulting services (roughly US$31,250) and for goods and works in
        investment development projects (roughly US$62,500). The threshold for shopping is also high under Art. 22 (roughly US$125T), vis-à-vis the thresholds
        normally set by donor institutions. Although the Law prohibits the break down procurement into small packages, there is needs of detailed regulatory
        guidance in order not to lessen the impact of open bidding as the preferred mode under the law.


        Publication is done on the procurement newspaper (upgraded from the DMPP special bulletin in December 2007), on the procurement website and some
        other national newspaper. Currently, bidding opportunities announcements do not contain detailed information for potential bidders to identify their
        readiniess to participate in. There are only few procurement-related information published in English - no English version on procurement newspaper and
        procurement website. MPI/DMPP has recently issued guidelines on publishing procurement information (MPI Decision 12/BKH-QLDT).
        A number of Vietnam's procurement experts think that the time limits for buying bidding documents and bid submission are rather long, leading to delays
        in project implementation. It is necessary to discuss on harmonizing the time limits for EOI, pre-qualification, bid / proposal preparation provided by the
        Law and Decree and those normally set by donor institutions.


        Under Art. 29 of the Law on Proc., although “pass/fail” criteria is provided, this is merely discretionary and an agency may still opt to use the Merit Point
        System.
        Registration does not seem to be an issue affecting competition.
        Art. 11 of the Law on Proc. requires that a bidder shall be institutionally, financially independent, and not subject to the same managing body as the
        Investment Owner. However, although SOEs appear financially, managerially and legally independent, they are still within the domain of the implementing
        agency. This means that while the rules on SOE participation have improved, much effort is still needed to level the playing field in actual practice.

        The Law prohibits the specification of brands or origins of goods in bidding documents, but still more detailed guidelines be developed. There is no
        provision requiring the agency to specify, as far as possible, internationally accepted standards such as those issued by the International Standards
        Organization.

        Agencies are allowed to exercise discretion on the choice of “pass/fail” criteria or the Merit Point System (Art. 29, Law on Proc.). DMPP is currently
        developing criteria for bid evaluation.

        There are no clear requirements under the Law on Proc. to keep records of bid opening proceedings. There is, however, a requirement for a bidder
        selection report. The regulation that "only bids from bidders in the list of those bought bidding documents shall be opened" can lessen the competitiveness
        of open bidding while "opening of bids in open bidding requires more than 3 bids" could cause considerable delays and need more detailed implementing
        guidelines.

        There exists a Consulting Council on Complaint Settlement, but its function is merely consultative to the Competent Person. (Art. 72, Law on Proc.).
        Implementing rules and regulations were issued as Decree 111 on September 2006 and continuously revised in new Decree, which aims at providing
        detailed interpretations and addressing the gaps, inconsistencies between existing regulations. There are still a number of inconsistencies observed in
        related legal documents such as: contract type, concepts of appropriate prices, costs… in the Law of Construction and its implementing decrees.

        In 2007, GoV had issued: Standard Bidding Document for Goods (Decision 251/2007/QD-BKH dated on 22/5/2007), Bidding Evaluation Document of
        Goods and Civil Works (Decision 1102/2007/QĐ-BKH dated on 18/9/2007), Pre-qualification Bidding Document for Civil Works (Decision 1591/2007/QD-
        BKH dated on 24/12/2007), Standard Bidding Document for Consulting Service (Decision 1583/2007/QĐ-BKH dated on 24/12/2007). More SBDs are
        being developed and will be provided through official documentation as well as through MPI procurement website.



        Law and Decree have provision for selecting consultants and packages of high-technical requirements. Guiding Implementation documents (SBD for
        consulting service) also provide for procedures and evaluation methods specifically for each cases.

        The Law on Proc. contains no provision on the development of procurement manuals. Besides GI documents, DMPP has issued book on "procurement
        typical cases", the next version is being drafted toward a Generic Procurement Manual should be developed.

        Arts. 49 and 53 of the Law on Proc. make references to the Form Contract. Currently, GCC is listed in the Standard Bidding Documents, project owners
        implement the contract following the type defined by the Approval Decision of the bid results and consult a number of documentation on GCC.
        Construction contracts apply the Circular 02/2005/TT-BXD dated 25/02/2005 and newly issued Circular 06/2007/TT-BXD dated 25/7/2007. DMPP is
        developing GCC into the new Decree (replacing previous Decree 111). It is recommended to develop guidance in applying lump-sum contract form as
        appropriate for the currently inflation situation.

NAGEMENT CAPACITY

        Budget allocations for agencies are based on a 5-year Master Plan. Moreover, under Arts. 10 and 11 of the Decree, the Investment Owner is required to
        submit the procurement plan to the relevant appraisal organization or body for appraisal and approval (this can involve submission to the Prime Minister).
        This implies a system of check and balance to ensure that procurement plans are consistent with the multiyear plan. In reality, there is no close link
        between overall procurement plan and budget allocation plan in medium and long period (3 - 5 years). There is no directl link between udgeting and
        spending, between an agency’s budget estimates and its actual disbursements during that year, which often lead to overspending and long periods of time
        for payment to contractors. More discipline may be required on the part of implementing agencies, and the Annual Procurement Plan would go a long way
        in fostering this discipline. Defining the available funds as basis for approval of procurement plan should based on the annual budget allocation..


        There appears to be no problem on the commitment and appropriation of budget funds. This may be due to the fact that project procurement plans are
        subject to appraisal and approval prior to undertaking the bidding process. However, delays in payment are reported to be common, as progress
        payments may take 30 to 60 days. It has also been reported that final account for works normally suffers much more serious delay mainly due to
        cumbersome procedures. It was further reported that these financial practices have created a preference for companies, such as SOEs or well established
        private companies, who have the resources to pre-finance contracts in the medium term.

        Although the Law on Proc. has no provision on the requirement of a Certificate of Availability of Funds, the control feature that this requirement seeks to
        establish exists by virtue of the appraisal requirement in Art. 6). No procurement may be undertaken without the approval of the procurement plan and the
        appraisal report and there is a penalty for overspending agencies (Art. 12 of the Law on Proc.). Currently, provinces started to impose more expenditure
        discipline when approve procurement plan on basis of annual budget allocation.
All agencies are required to submit information on their procurements for the previous year to the DMPP, by March of the succeeding year. The DMPP is
then able to process these data and issue the consolidated procurement report within 1 month. However, not all procuring entities are able to fully comply
with this submission requirement and the information submitted is incomplete, lack of details such as the completion rate of projects. Recently, regular
procurement reporting is improving significantly and DMPP is putting efforts on building an information system of contracts linking budget estimates,
awards, releases with contract performance – eventually leading to a stronger public financial management system.

The MPI/DMPP is tasked with the responsibility for setting procurement policy, overseeing the establishment of effective procurement practices, and
settling procurement complaints within the scope of its jurisdiction. However, there are overlapping and inconsistencies in procurement regulations
between DMPP with MOC and MOF - there are a number of procurement regulations defined by MOC or recommended by MOC to the Prime Minister..




DMPP is the GoV functional normative/regulatory body with clear responsibilitites on procurement.

However, in the current transitional period, there is lacking close link with other related functional bodies such as MOF and MOC. There are a few
conflicting points in the Law on Proc. Art. 57 Section 1a and Art 1 Section 8 (Decree 111/2006/NĐ-CP) with Section IV B, Part II of the MOF Circular
27/2007/TT-BTC dated 03/4/2007 on contract price adjustment. There are parallel guiding documents from DMPP and MOC such as "guiding on adjusting
the bidding price (Section - MOC Circular 09/2008/TT-BXD)" or overlaps in functional procurement management in MOC responsibilities to "đ) Guide,
inspect the selection of bidders in construction bidding following the Law on Construction and related procurement regulations (Decree 17/2008/NĐ-CP
dated 04/2/2008)".

The information submission and procurement records management are still rather inadequate and inconsistentt.




DMPP/MPI is sufficiently located at a high level, has functional power regulated in the legislative framework. There are, however, limited resources in
funding and staff in order to cover all responsibilities provided by GoV such as develop procurement legal documents, oversight and inspection of actual
procurement activities and performance, procurement professional training.... The Procurement Helpdesk is in operation but it needs to be institutionalized
with sufficient resources in order to be of effective support.




National procurement newspaper stated in December 2007 (upgraded from the Bulletin on Public Procurement managed by the MPI/DPP.The Law
requires advertising procurement opportunities and other procurement related information including relevant legislation, award results, list of debarred
bidders and related sanctions. This is a commendable effort by DMPP, however, it is only currently available in Vietnamese (on both newspaper and
website).
       There is a system to collect data on both locally funded and ODA procurement, but although the data is routinely analyzed and submitted as a report to
       the Prime Minister, it would need further development to generate information on specific procurement concerns, like unit prices for common types of
       goods/services, levels of participation, and duration of specific stages of the procurement cycle. The data would also have to be verified through audits.
       The analysis and use of collected procurement statistical data should be emphasized as the background information for regular oversight and inspection
       activities.

       DMPP is currently implementing the Public Procurement Training Project funded by LMDG. The programme is conducting numerous certified training
       courses nationwide on legal frameworks, procurement procedures, curriculum development and training of trainers would still have to be developed.
       However, the training demand is huge (also in specific steps in procurement cycle such as preparing bidding documents evaluating bids...) requiring
       further efforts to spread-out this programme. Also it takes time to assess the relevance and effectiveness of those training programmes. DMPP has a
       procurement helpdesk responding to queries and issues in actual practice. The experience in implementing Law and procurement practice has improve
       the knowledge and skills of government staff toward international standards.


       There is still a shortage of qualified procurement staff, and there is no criteria and procedure to assess the performance of procurement staff. The actions
       by procuring entities are subject to review by higher level agencies, audits are not regularly conducted, and are usually performed only when there is a
       major complaint against procuring entities. It is necessary to strengthen the capacity for procuring entities in oversighting the implementation of contracts.


RKET PERFORMANCE

       Art. 9 and Ch. IV of the Law on Proc. contain provisions on the rights and duties of the procuring entity and a Procurement Specialist Team, and there are
       conditions for membership in the Procurement Specialist Team. However, at the present a number of procurement staff are appointed on ad hoc basis to
       serve a project or a particular procurement, and this is yet supported by systematic training on procurement. Recent efforts by GoV in capacity building
       should be emphasized further toward proffesionalization of procurement in Vietnam and the real effect is yet to be seen.


       DMPP is developing information system and regularly disseminating through procurement website in support of procurement practice of government
       officials and public - it takes time to see the positive impacts of those efforts. The comprehensive procurement capacity building program includes regular
       short training courses for both public and private sectors.


       Art. 39 of the Law on Proc. provides for a report on the bidder selection results to be submitted to the Competent Person and the appraisal
       body/organization. Ch. IV of the same law also provides for the duty to preserve the confidentiality of procurement-related documents by the Investment
       Owner, Procuring Entity, Procurement Specialist Team and the Appraisal Body. There is a general Archiving Ordinance where agencies are required to
       keep records for 5 years. However, there have to be provisions that clearly specify what these procurement documents/records are, the responsible office
       where these shall be kept (project owners), the length of time for record-keeping, accountabilities, and which of these are available for public inspection.


       The Law on Proc. and related laws provide for delegated authority and appropriate accountabilities for decision-making. However, it is reported that major
       contracts are subject to a lengthy and cumbersome approval process. This may be due to the appraisal system. Although Art. 31 of the Law on Proc.
       provides for a maximum appraisal duration of 20 days (30 days for the Prime Minister), this procedure occurs 3 times during a bidding – procurement plan,
       bidding documents and bidder selection result – and so the period can actually run to a total of 60 days in a single bidding activity (90 days for the Prime
       Minister). In addition, there are conflicting regulations at sub-national level (such as between provincial planning and finance offices) limit the decision-
       making of procuring entities and cause delays in procurement.

       Recently, GoV started to increase dialogue with private sector through Chambers of Commerce and Industry. Private sector is encouraged to participate in
       workshops, trainings, seminars. The Competition Law effective from July 2005 has created basis for improvement of competitive environment. The private
       sector has equal access to procurement opportunities as public sector. Howvere, it is reported that SOEs are holding advantages over private companies
       in large procurement.
        There appear to be 2 perennial problems that hinder the development of a competitive private sector. First, delays in payment create a preference for
        SOEs and large companies that are able to pre-finance contracts. This restricts the ability of small and medium-sized private companies to compete for
        state contracts. Second, the dependant nature of SOEs and the procuring entity. Although a new SOE Law took effect on July 1, 2004, allowing the
        creation by SOEs of market-based commercial entities operating under the Enterprise Law, there still observed strong evidence of preferential treatment
        for the SOE sector. The Law on Proc. already has a provision in Art. 11 that bidders participating in biddings for procurement packages shall be
        institutionally, financially independent and not subject to the same management as the Investment Owner. This appears to prohibit the type of conflict of
        interest indicated above.


        The 2 above-mentioned factors still appear to inhibit private sector access to the public procurement market. As such, although bid, performance and
        advance payment securities can be easily obtained locally, and the requirements for securities and other bidding requirements appear to be reasonable,
        increased competition from the private sector still has to be realized. In time, it is hoped that the new Law on Proc. will help improve this area of concern.



        The Law on Proc. has provisions on adjustments to contract and supervision of performance, acceptance and close-out of contract (Art. 57 and 59).
        DMPP is developing model contracts forms with quality control procedures appropriately incorporated. This will help to strengthen provision on
        performance, acceptance and close-out of contracts, even involving the community residents. The construction supervision is improving and carried out
        by professional supervision companies (especially for large construction works). For medium and small scale contracts, agencies normally supervise
        works, and this is reported as being usually inadequate. As such, under-inspection of goods, and cost and time overruns in works contracts, are reportedly
        common. This is coupled by delays in final payments.


        It has been reported that there exists an International Arbitration Center with the Vietnam Chamber of Commerce and Industry, and that in 1994, Decree
        116/CP established economic arbitration centers in provinces and centrally administered cities. But there is no Arbitration Law as yet, arbitration does not
        seem to be a common practice used in public procurement, and local contract conditions for dispute resolution are reportedly inadequate. At sub-national
        level, procurement staff is normally unaware of economic arbitration. The old Standard Bidding Documents for goods issued in 2005 contain a standard
        provision on conciliation. No reference is made to any particular set of arbitration rules or proceedings, as this is for the parties to indicate in the Special
        Conditions of Contract. It is therefore important for the new standard contract forms to include stronger provisions on ADR.


        As local conditions have to be developed further to clearly reflect rights and obligations of parties in contracts, and courts are generally regarded as a
        mechanism of last resort,

HE PUBLIC PROCUREMENT SYSTEM

        The State Audit law has strengthen the role of the State Audit Agency, including compliance procurement audit as part of its responsibilities. This is in
        addition to the appraisal system that is integrated in the Law on Proc. and the role of the MPI to lead and coordinate with agencies in conducting oversight
        and inspection for procurement nationwide. There is also a specific provision on procurement inspection (Art 71, Law on Proc.) and in 2007 DMPP has
        conducted 8 oversight and inspections missions at ministries, provinces and state-owned enterprises.. However, it was also reported that audits are not
        regular and usually conducted only when there is a major complaint against procuring entities. There is need to systematize the procurement oversight in
        combination with reviewing reporting system, inspection and audits. There is no institutionalized internal control mechanism within agencies through the
        establishment of internal audit units with clearly defined functions and procedures.

        Audits are not regularly undertaken, and usually conducted only when there is a complaint. This means that audit recommendations are more reactive
        than proactive, and may tend to address specific transactions rather than broader issues on operations and practices by agencies. Recently, there is
        significant improvement in auditing, which is normally carried out when closing out investment project on request from procuring entities. The audit results
        are systematized in order to enforce the law compliance. The positive impacts of these efforts are to be observed in time.
There is no established internal control system within agencies, through the mandatory creation of internal audit units with clearly defined functions and
procedures.



See comments at sub-indicator 9c.



Auditors have limited knowledge on procurement regulations and practice, and so the Comprehensive Capacity Building Program is to be further
developed to include these auditors as targeted participants.



There is a good provision in Art. 73 of the Law on Proc. that creates the Consulting Council on Compliant Settlement. This body is part of an entire
appeals procedure that begins with the procuring entity, the procedure is bound by timelines, the body is outside the regular courts, and the body includes
a representative from the relevant professional association. However, there appears to be no enforceability or finality in its decisions, because an
aggrieved party has the discretion to either sue in court or go through the process of settlement of procurement complaints.


There is no clear provision on the powers of the body and the remedies it may impose. Art. 75 of the Law on Proc. and Chapter IX of the Decree deal with
violations of the law, but these remedies are clearly given either to the person deciding the investment, not to the Consulting Council. Its purpose thus
appears to be merely consultative to the Competent Person. There may be a need to specify more clearly the division of jurisdiction between the
administrative process and the courts, and the powers of the Consulting Council may be strengthened further.

It is apparent from the Law on Proc. and the Decree that much effort has been taken to ensure that decisions are unbiased. However, although Art. 73 of
the Law on Proc. states that the Consulting Council may request for the necessary information and documents, there is no clear provision that provides
which these relevant documents are. There is also a need to strengthen Art. 73 of the Law on Proc. so that the discretion of the Competent Person and
the scope of his decision in settling a bidder’s complaint are clearly specified and not subject to abuse.


There is no provision to post the decision of the Competent Person or the Consulting Council, except the requirement in Art. 5 of Law on Proc. for the
posting of the treatment of violations of the Law. The complaint resolutions are returned to the concerned only, not required to publicize.



The complaint review body only has a consultative role to the Competent Person.



Under Art. 5 of the Law on Proc., relevant procurement information are required to be posted in the procurement paper and procurement website by
DMPP/MPI and is readily available to the public. This is complemented by a requirement under the new State Auditing Law for the State Auditing Agency
to make audit information public. However, GoV should put more efforts in making the information disclosed accurate and complete.
The Law on Proc. has good provisions on ensuring competition, avoiding conflicts of interest, prohibited acts in procurement, and the penalties for
violations (Arts. 11, 12, and 75, Law on Proc.). However, the standard tender documents still have to be issued and improved, and precise provisions for
incorporating these in the tendering documents are needed. In 2007, a number of SBDs issued (see comments in sub-indicator 2b), but there are yet to
include anti-corruption provisions.




Art. 75 of the Law on Proc. and Ch. IX of the Decree provide these. Art. 75 also specifically provides that individuals whose acts in violation of the Law on
Proc. constitute crimes shall be dealt with in accordance with the Criminal legislation.



The Law on Anti-Corruption was passed in 2005, and cases on corruption are being reported in local newspapers, and that this was an indication of
enforcement of anti-corruption measures. Implementing agencies are yet to compile and publish black list of violated bidders and there are no system for
penalize and record administrative cases, the abuse of authorities by government staff, etc. It should be noted that there was a previous concern that local
bidders were reluctant to report corruption for fear of adversely affecting a long-term relationship with their potential employers/purchasers. It would be
interesting to see in the future how the new Law on Proc. and the new Law on Anti-Corruption affect this concern.

GoV has anti-corruption programme, well coordinated with high-level authority but there is no special measures for public procurement. Recently, the
Central Anti-Corruption Steering Committee has been established to strictly deal with corruption and wastefulness at all levels. Even the Law on Proc. has
strengthened provisions on corrupt practices, and provides some indicators of corruption in procurement.


The Law on Proc. has improved private sector participation in procurement, as a professional association is represented in the Consulting Council on
Complaint Settlement (Art. 73), and community residents are tapped to supervise procurement activities (Art. 59). However, the law does not
institutionalize a participative or collaborative process whereby various stakeholders are consulted on higher policy matters. Civil society observers are
not required to be invited during public biddings.


There yet to develop an effective system for dealing with complaints. This has probably led to the reluctance of bidders to report corruption. Art. 64 of the
Law on Proc. gives bidders the right to file procurement complaints, petitions and denunciations. However, it appears that concerns on the judicial system
still persist, and that while there are specific provisions on securing confidentiality, the integrity of the entire system needs to be developed further.


The 1998 Ordinance on Civil Servants requires government staff to respect the people and provide a diligent service to the people, to be honest, to avoid
bureaucracy and corruption, to use public resources with economy, and to avoid abuse of their position. They are also expected to follow other related
codes such as the Anti-Corruption Law. These are complemented by Ch. IV of the Law on Proc. which constantly reminds public officers involved in
procurement on responsibilities in the bidder selection process, the need for preserving the confidentiality of procurement-related documents, the need for
being honest, objective and impartial in the bidding process, and the need for bidders to be truthful and accurate in the bidding process and in filing
procurement complaints, petitions and denunciations.

				
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