Bid guarantee under the form of SBV or MPI?
The Duc Tinh General Construction Co., Ltd encountered problems with the form of bid guarantee due to the inconsistency between the regulations of the State Bank (SBV) and the Ministry of Planning and Investment (MPI). Through the system of receiving and responding to recommendations of businesses, the company requests the authorities to remove them.
According to Article 15 of Circular No. 07/2015 / TT-NHNN dated June 25, 2015 of the State Bank of Vietnam, the compulsory guarantee commitment must contain the content "Applicable law provisions". However, the form of letter of tender guarantee specified in Circular No. 03/2015 / TT-BKHDT dated May 6, 2015 does not contain the content of applicable law provisions.
In the bidding documents, the bidding agencies are obliged to have letters of guarantee issued according to this form (only a very small change or adjustment is required, the bid will be rejected).
Therefore, in order to ensure the validity of the bids of the enterprise, the bank cannot add applicable legal provisions to the letter of guarantee (required content is required by the regulation of the STV). The same content , but the SBV requires to have, while the MPI and the bidding agencies do not accept that content in the letter of guarantee.
The Duc Tinh General Construction Co., Ltd. would like to request the competent authority to guide this case.
Regarding this issue, The SBV has the following opinions:
Under the provisions of the Law on Credit Institutions, guarantee is a form of credit, so it must be strictly controlled..
Clause 1, Article 15 of Circular No. 07/2015 / TT-NHNN regulates the necessary contents (must have) of the guarantee commitment. Clause 4, Article 15 of Circular No. 07/2015 / TT-NHNN stipulates that credit institutions must uniformly apply the guarantee commitment form designed and printed by the credit institution throughout the credit institution system.
Bid security is a popular form of guarantee currently provided by credit institutions.Section 19 Chapter I on instructions for contractors in the form of bidding dossier No. 01 and Section 18 Chapter I on instructions for contractors in the form of invitation for bid No. 02 issued together with Circular No. 03/2015 / TT-BKHDT on In case ofusing a letter of guarantee, the letter of guarantee must be made according to Form No. 04 Chapter IV - Bidding form or in a similar form but must include all the basic contents of the bid guarantee.
With the above provisions, the bid solicitor and the contractor can agree on a letter of guarantee to meet the requirements of the bid solicitor and the provisions of Circular No. 07/2015 / TT-NHNN.
The fact that the procuring entities are required to issue a letter of bid guarantee to issue under the form prescribed in Circular No. 03/2015 / TT-BKHDT without allowing the addition of contents in the form of the bank guarantee commitment is not yet available.
On the other hand, Clause 2, Article 3 of the Law on Credit Institutions stipulates: “In cases where there are different provisions between this Law and other relevant laws regarding the establishment, organization and operation of a foreign bank branch or a credit institution's representative office;
In cases where there are different provisions between this Law and other relevant laws regarding the establishment, organization and operation of a foreign bank branch or a credit institution's representative office;The establishment, organization and operation of foreign bank branches, representative offices of foreign credit institutions, other foreign institutions engaging in banking activities shall comply with the provisions of this Law ”.
The State Bank proposed the Duc Tinh Company to renegotiate with the bidding agency to agree on the content and form of the letter of guarantee, to ensure compliance with the law.
By: Online Newspaper of the Government / Translator: HaiYen-Bizic
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