What acts are considered collusion?
According to regulations, one of the acts of collusion is an agreement for one or more parties to prepare bids for the participating parties so that one party may win the bid.
During the evaluation of the E-HSDT for the bidding package for the construction of works via the national bidding network, Mr. Tran Lich (Bac Kan) encountered the following situation:
The bidding package has 4 participating bidders (E-HSDT), the method of evaluating E-HSDT is following process 2 (evaluating the contractor with the lowest bid price). In which, contractor A has the lowest price, and contractor B has the second price. Contractor A is evaluated as technically unsuccessful (disqualified); contractor B meets the evaluation criteria required by the E-HSMT.
However, contractor B leases one piece of equipment to contractor A (excavator: has the same engine model, capacity, year of manufacture, and manufacturer) and this equipment is also used by contractor B as a capacity to participate in the above bidding package; contractor A's personnel is the chief commander for contractor B (as in the confirmation document of social insurance that contractor B submits with the E-HSDT); explanations of the construction organization method of 2 contractors A and B are identical (only changed in the company name, words and headings are the same descriptions).
Mr. Lich asked, with the above situation, will 2 such contractors (A and B) participating in the same bidding package ensure competitiveness according to regulations? Are Contractor A and Contractor B considered collusion? How should the investor and the bid solicitor deal with the above situation to ensure regulations? Will Contractor B be considered for the winning bid?
The Ministry of Planning and Investment responded to this issue as follows:
Point b, Clause 3, Article 89 of the Law on Bidding stipulates that one of the acts of collusion is an agreement for one or more parties to prepare bids for the parties of bidding so that one party may win the bid.
Regarding Mr. Lich’s issue, in the process of evaluating bids, in case that the expert team, the bid solicitor discover the bids of contractors A and B have completely the same contents, then the bid solicitor should request these contractors to explain and clarify according to the provisions of Article 16 of Decree No. 63/2014/ND-CP of the Government.
In case the bidders fail to provide explanations and clarifications at the request of the bid solicitor or provide explanations and clarifications that are unreasonable or unconvincing, they are considered to have signs of collusion following the above provisions.
If the explanation and clarification of the contractor are reasonable and convincing, the bid solicitor should continue to consider and evaluate the tenderer's bid according to the principles of bid evaluation specified in Article 15. Decree No. 63/2014/ND-CP.
In case of necessity, the investor may request the competent authority to verify and clarify this issue.
By: Online Newspaper of the Government/ Translator: Viet Nguyen-Bizic
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