326-bql-da2-jack 1604

HPCHANOI METROPOLITAN RAILWAY PROJECT BOARD

No. 326/BQL-DA2Sub: To complete Bidding Doc CPA003 –

Construction of Elevated Section

SOCIALIST REPUBLIC OF VIETNAMIndependence - Freedom - Happiness

Hanoi, March 23, 2013

To: GC

Pursuant to General Consulting Contract no. HRB-L2-001 signed on 13/03/2011 between MRB and GC;

Pursuant to your letter no. GCL2/MRB/DW/2012-642, 648 dated 24/12 & 28/12/2012

about submission of Bidding Docs of CPA003 and CPA005;

After reviewing the submitted documents, MRB would like to have following ideas:

The contents of Bidding Documents should be in accordance with JICA’s Sample Bidding Documents, June 2009 and Guidelines for Procurement under Japanese ODA Loans, March 2009. Please refer to the attached document for MRB’s comments on specific contents.

GC is requested to quickly supplement and complete any missing items. If you have any questions regarding to the documents, please contact PMD2 for details.

Receivers:

- …

SIGN FOR THE DIRECTOR

VICE DIRECTOR

(Signed, Sealed)

Luu Xuan Hung

1

Appendix attached to letter no. 326/BQL-DA2 dated 28/3/2013

No. JICA’s Sample Bidding Document

June 2009

Bidding Documents prepared by GC

Vietnamese Regulations

MRB’s opinions GC’s Responses4 April 2013

1 Package name:Construction Contract Package CPA003: Elevated Section-3 Stations and ViaductsConstruction Contract Package CPA005DEPOT Infrastructure and Buildings

Package CPA003: Construction of Elevated SectionPackage CPA005: Construction of Depot

Agreed package name shall be in accordance with approved Tendering Plan

2 Letter of Bidding Invitation Please add this letter same as JICA’s Sample Bidding Document

Will be updated

Part 1- Bidding ProceduresSection I. Instructions To Bidders

3 1. Scope of Bid Item 1.2 was modified by GC, comparing with JICA’s Sample Bidding Documents

GC is requested to follow JICA’s Sample Bidding Documents

Will be updated

4 4. Eligible Bidders Item 4.1 was modified by GC, comparing with JICA’s Sample Bidding Documents


Will be updated

5 6. Sections of Bidding Documents

Item 6 was modified by GC to fit the composition of the Bidding Document prepared by GC

Agreed Noted

6 7. Clarification of Bidding Documents, Site Visit, Pre-Bid Meeting

Item 7.1 was modified by GC, comparing with JICA’s Sample Bidding Documents


This was amended and included in ITB at MRB request – to be discussed

7 11. Documents Comprising the Bid

Item 11 was modified by GC, comparing with JICA’s Sample Bidding Documents


Will be updated

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8 13. Alternative Bids Item 13 was modified by GC, comparing with JICA’s Sample Bidding Documents


Will be updated

9 14. Bid Prices and Discounts

Item 14.5 and 14.6 were modified by GC, comparing with JICA’s Sample Bidding Documents


Will be updated

10 19. Bid Security Item 19.4 and 19.6 were modified by GC, comparing with JICA’s Sample Bidding Documents


No. JICA sample quotes incorrect - GC documents correct the error

11 38. Award Criteria Item 38 was modified by GC, comparing with JICA’s Sample Bidding Documents


JICA sample does not specify contract discussion before Notification of Award, however, Vietnamese regulation requires such process before signing the contract. GC has modified this clause to make it in accordance with Vietnamese regulation. – ITB will be updated and GC will add negotiation requirements to BDS

Section II. Bid Data Sheet

12 ITB 1.1 The name of the ICB (International Competitive Bid) is: Construction Contract Package CPA003 Elevated Section-3 Stations and Viaducts.

The name of the ICB (International Competitive Bid) is: Construction Contract Package CPA005 DEPOT

Please revise the name of packages according the approved Tendering Plan

Will be updated

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Infrastructure and Buildings13 ITB 7.1 Electronic mail address:

[email protected] add the email address of MRB

GC normally contact with MRB by this email address. Please give detail instruction so GC can modify accordingly.

14 ITB 7.4 A site visit conducted by the Employer will be organized after the Pre-bid Meeting.

Please revise :” A site visit conducted by the Employer will be organized after the Pre-bid Meeting (if Bidders request)

Will be updated

15 ITB 18.1The bid validity period shall be more than 120 days.

The bid validity period shall be 210 (two hundred and ten) days.

Item c Article 8 Chapter I Decree no. 85/2009/ND-CP dated 15/10/2009 states “The bid validity period must be defined in Bid Proposals but not exceeding 180 days since the Closing Date”

The bid validity period shall be more than 180 days.

Will be updated

16 ITB 18.3 If the bid validity period is extended beyond fifty-six (56) days, the fixed portion of the Contract price shall not be adjusted.

56 days are too short, please extend.

Not necessary, as GC say there will be no adjustment irrespective of the days

17 ITB 19.1The amount is about 2% of contract’s cost estimate.

A Bid Security shall be required.The amount and currency of the Bid Security shall be Japanese Yen 200,000,000 (two hundred million) or its equivalent amount in United States Dollars or Vietnamese Dong.

Item 2 Article 27 Tender Law no. 61/2005/QH11 states ”The amount of Bid Security shall be defined in Bidding Documents based on characteristics of specific package but not

The amount of Bid Security is at least 2% of the proposed contract price.

In GC opinion, value of Bid Security should be fixed based on estimated contract price, not proposed contract price.The percentage (1% or 2%) of the estimated contract price should be further

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exceeding 3% of the approved package price”

discussed for conclusion. JPY 200M is approx 2%

18 ITB 34.1 Please clarify “Daywork” items. According to JICA’s Guidelines, this is a provisional sum equivalent to contingencies of Vietnam. However, according to FIDIC, this is a sum paid for minor variation, which has been included in other direct costs as required under Vietnam regulation.

Day work items shall be executed as Physical Contingency, should it be separated from Physical Contingency or not should be further discussed for conclusion.Other direct Expense shall be included under Pay Items by the Contractor, together with overhead, taxes, and markup, direct costs (labor, materials, and equipment). Daywork Items shall be executed for minor Variation Order initiated by the Engineer. It is executed as Unit Price with Provisional Quantities for scheduled items only.

19 ITB 35.4N/A

Please delete To be discussed

20 ITB 39.1N/A

Please delete Will be updated

Section III. EVALUATION AND QUALIFICATION CRITERIAPlease consider and complete the “EVALUATION AND QUALIFICATION CRITERIA” in compliance with Vietnamese Regulations (Article 28, 35 Tender Law, Article 29 Decree 85/2009/ND-CP…)

Will be updated

Bill of QuantityThere are not efficient basis to review the Bill of Quantity. It will be reviewed based on Quantity Calculation documents and Quantity payment and measurement method in the Specification. GC should notice to follow the payment conditions applied to contract types approved by JICA and the approved Tendering Plan

The method of measurement is included with the BQ not with the Specification. The BQ and

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payment conditions are in accordance with the Contract

Part 2: Works RequirementsThere is no Quantity Calculation Method and Payment Basis… This part is under review by PMD2 for comments.

It is not required to be part of the works requirements.

General Conditions of Contract

Not yet submitted General Condition shall be obtained by the Bidder, not provided by the Employer. MRB have been given copies of the GCC (Pink) previously

Section VIII Particular Conditions Of Contract

Part A: Contract Data

21 Sub- Clause 1.1.3 .3: Time for Completion of the Works

The whole of the Works shall be completed within one hundreds and sixty-five (165) weeks.

Revise to 38 months Will be updated

22 Sub-Clause 1.2: Profit(none)

One-twentieth (5%) of the Cost as described in GCC

Please clarify this point. This can be deleted and is still applicable

23 Sub-Clause 1.4: Ruling Language

English Article 11, Clause 3, Sub-clause 1, Decree No. 48/2010/ND-CP specifies “Languages to be used in a construction contract involving a foreign party are Vietnamese and English”

English and Vietnamese GC considers that this maybe a misunderstanding. The ruling language should be English, and the language used for communication shall be both English and Vietnamese.

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24 Sub-Clause 1.6 Time for Parties to enter into Contract Agreement(none)

Within twenty eight (28) days after the Contractor receives the Letter of Acceptance.

Please clarify this point. As per FIDIC. Can be deleted or amended to read “unless stated otherwise in the letter of acceptance”.

25 Sub-Clause 3.1 (B) (ii) Engineer’s Duties and Authority(none)

Variations resulting in an increase or decrease of the Accepted Contract Amount shall require approval in writing from the Employer.The changes to the quantities of any items of works included in the Contract that are to be re-measured do not constitute a Variation.

Article 27, Decree No. 15/2013/ND-CP dated 6/2/2013 specifying Engineer’s Duties and Authority

GC is requested to move Sub-Clause 3.1 (B) to Part B: Specific Provisions. Move the sentence “The changes to the quantities…a Variation” to Sub-Clause 3.5

GC considers the two mentioned Article of Decree 15 are applied for Design Service and Supervision Works separately. The concept of Engineer under FIDIC is different. Should the GC contract already taken into account all Vietnam regulations, therefore, duties and authority of the Engineer should be in accordance with this contract. Will be updated

26 Sub-Clause 8.7: Maximum Amount of Delay Damages

There is no maximum limit proportionately in levying of delay damages for delays in individual key dates. However, the maximum amount for cumulative delay damages for the Contract for all key dates and completion of the whole of the Works shall not exceed ten percent (10%) of the Accepted

Article 41 Decree No.48/2010/ND-CP specifies “The bonus level must not exceed 12% of the saved contract value and the fine level must not exceed 12% of the breached contract

According to GC’s proposal, the progress can be delayed for 2 years but maximal delay damages only account for 10% of the Contract; this will bring a disadvantage to the Project Owner. GC is requested to further study and propose.

Delay damages shall be included in submitted Bid Price to cover all related risks by the Bidders.GC considers it should be used as incentive rather than penalty, thus, the Contract Price shall be reduced. This is typical for major

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Contract Amount less Value Added Tax.

value…” international projects

27 Sub-Clause 14.2 : Number of Instalments, Amount and Currencies of Advance Payment

One instalment of twenty percent (20%) of the Accepted Contract Amount less Provisional Sums, Physical and Price Contingencies, and Value Added Tax in the respective currencies in which the Contract Price is payable.

Article 17, Decree No. 48/2010/ND-CP specifies:The minimum advance level is prescribed as follows:a/ For consultancy contracts, it is 25% of the contract price;b/ For work construction contracts, it is:- 10% of the contract price, for contracts valued at over VND 50 billion:- 15% of the contract price, for contracts valued at between VND 10 billion and 50 billion:- 20%; of the contract price, for contracts valued at below VND 10 billion.

GC is requested to modify as follows:

“One instalment of ten percent (10%) of the Accepted Contract Amount less Provisional Sums, Physical and Price Contingencies, and Value Added Tax in the respective currencies in which the Contract Price is payable.”

To be discussed. GC believe should remain at 20%

28 Sub-Clause 14.2(a): Commence Repayment of Advance Payment

The deduction shall commence in the next interim Payment Certificate following that in which the total of all certified interim payments

Article 17, Decree No. 48/2010/ND-CP specifies: “Advance amounts shall be

GC is requested to modify as follows: “Advance amounts shall be retrieved right at the first contract payment.”

Will be updated to take effect at first payment after advance.

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(excluding the advance payment, deductions and repayment of retention and Value Added Tax) exceeds thirty percent (30%) of the Accepted Contract Amount less Provisional Sums, Physical and Price Contingencies and Value Added Tax in each currency of the Advance Payment.

retrieved right at the first contract payment. The advance amount to be retrieved upon each payment shall be agreed upon by the contracting parties and indicated in the contract. The retrieval shall be completed when the paid value reaches 80% of the contract price…”

29 Sub-Clause 14.2(b): Repayment Amortization of Advance Payment

Thirty-five percent (35%) GC is requested to modify as follows: “Twenty percent (20%)”

Will be updated to 20%

30 Sub-Clause 14.6: Minimum Amount of Interim Payment Certificates

Ten percent (10%) Please clarify this point. GC has been misquoted and have minimum payment at 0.3%. to be discussed, but this clause can be omitted if no minimum is acceptable

31 Sub-Clause 18.2 (d): Maximum Amount of Deductibles for Insurance of the Employer’s Risks

Maximum Amount of Deductibles for Insurance of the Employer’s Risks is United States Dollars One Hundred Thousand (USD 100,000).

Please clarify bases of the Maximum Amount of Deductibles of USD 100,000.

Based on similar projects

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32 Sub-Clause 18.3: Minimum Amount of Third Party Insurance

Not less than United States Dollars ten million (USD 10 million) for any one incident, with the number of occurrences being unlimited.

Please clarify bases of the insurance amount? Insurance companies operating in Vietnam is a must.


33 Sub-Clause 20.6 Place of Arbitration

In Singapore In Vietnam GC contend the venue should be neutral, not Vietnam

34 Attachment-1:Schedule of key dates and delay damages

GC is requested to re-determine key dates; the Elevated Section can be divided into subsections from the beginning point of the line to C2 and from C2 to end of the Elevated Section.

GC will review

35 Attachment-2:Time for granting right of access to and possession of the site

GC is requested to re-determine Access Dates

GC will review

36 Attachment-3:Schedule of insurances

Please clarify calculation bases of insurance amount of each kind.


Part B: Specific Provisions37 Sub-Clause 1.1.1:

Definitions/The Contract

Delete the existing Sub-Clause 1.1.1.5 and replace with the following: “1.1.1.5 “Specification” and “Technical Specification” means the

Article 3, Decree 15/2013/ND-CP provides a definition of “Specification”, Article 7 of the same Decree

GC is requested to review the definition of “Specification” in Article 3 and 7, Chapter I of the Decree 15/2013/ND-CP

Technical Specification has been prepared based on the requirements under Article 3 and Article 7. The definition should refer to the document

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document entitled Works Requirements – Specifications, as included in the Contract, and any additions and modifications to the specifications in accordance with the Contract. Such document specifies the Works.”

specifies “Specification”.

dated 6/2/2013. itself and specify allowable amendment to it.

38 Sub-Clause 1.1.2: Definitions/Parties and Persons

After Sub-Clause 1.1.2.12, add the following:“1.1.2.13 “Interface Contractor” shall mean persons undertaking the Interface Works.”

GC is requested to clarify the definition of “Interface Contractor”.

It is defined elsewhere in the particular conditions


After Sub-Clause 1.1.2.13, add the following:“1.1.2.14 “Related Works Contractor” shall mean any person or persons undertaking the Related Works including Interface Contractors.”

GC is requested to clarify the definition of “Related Works Contractor”.

It is defined elsewhere in the particular conditions


After inserted Sub-Clause 1.1.2.14 above, add the following:“1.1.2.15 “Independent Design Verifier” means a qualified person appointed by the Contractor and accepted by the Engineer, as an independent design verifier.”

GC is requested to clarify which design stage will require “Independent Design Verifier”.

May be required for contractor temporary works

41 Sub-Clause 1.1.5: Definitions/Works and Goods

After Sub-Clause 1.1.5.8, add the following:

Please clarify this Sub-clause.

To discuss. GC believe already clear

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“1.1.5.9 “Interface Works” shall mean works and/or services performed or undertaken by the Interface Contractors of the Employer or any contractor employed by him in conjunction with the Contract Packages CPA001, CPA002, CPA004 and CPA005.

42 Sub-Clause 1.1.5: Definitions/Works and Goods


“1.1.5.10 “Related Works” shall mean works, other than the Works under this Contract but including Interface Works, performed or undertaken by the Employer or other contractor or suppliers of the Employer...”

Please clarify the definition of “Related Works”

To discuss. GC believe already clear

43 Sub-Clause 1.1.6: Definitions/Other Definitions


Re-check “After Sub-Clause 1.1.6.10, add the following”

GC is not sure what is being asked.

44 Sub-Clause 1.1.6: Definitions/Other Definitions

After Sub-Clause 1.1.6.11, add the following

Re-check “After inserted Sub-Clause 1.1.6.11 above, add the following”

GC is not sure what is being asked.

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Clause 2 The Employer

45 Sub-Clause 2.4: Employer’s Financial Arrangement

Article 24, Decree 15/2013/ND-CP specifies the Employer’s responsibility

Please review and add the Employer’s responsibility in accordance with Article 24, Decree 15/2013/ND-CP.

It is the Loan Agreement, in which the Employer is identified as Line of Agency.Article 24 only mention the Employer’s responsibilities related to quality issues, not financial issues.

Clause 3 The Engineer

46 Sub-Clause 3.1: Engineer’s Duties and Authority

None Article 27, 28 Decree 15/2013/ND-CP specifies the Engineer’s Duties and Authority

Please review and add the Engineer’s Duties and Authority in accordance with Article 27, 28 Decree 15/2013/ND-CP.

As mentioned above in section No.25.

Clause 4 The Contractors

47 Sub-Clause 4.1 Contractor’s General Obligations

Article 25, 26 Decree 15/2013/ND-CP specifies the Contractor’s responsibility

Please review and add the Contractor’s responsibility in accordance with Article 25, 26 Decree 15/2013/ND-CP

Already included in FIDIC clause 4

48 Sub-Clause 4.1 Contractor’s General Obligations

Please check the paragraph “If the Contract specifies that verification by an

It is the internal quality management process of the Contractor.

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Independent Design Verifier on the design provided by the Contractor or his design subcontractor…”. Is this applicable to CPA003 & CPA005?

49 Sub-Clause 4.2 Performance Security

Delete the existing second Paragraph and replace with the following Paragraphs:…(b) by a foreign bank through and confirmed by a bank located in the Country. The both banks shall have a “back to back” guarantee between them.

Revise “b” to “The foreign bank must operate in the country of the Employer”

GC believes original wording correct and allows contractors to get security from their usual source

50 Sub-Clause 4.4 Subcontractors

Article 46 Decree 48/2010/ND-CP specifies Subcontract

Please review and add Article 46 of Decree 48/2010/ND-CP.

FIDIC is in accordance with this Article.

51 Sub-Clause 4.22 Security of the Site

Delete the existing Sub-Clause 4.22 and replace with the following Paragraphs:The Contractor shall be responsible for the security of the Site throughout the duration of his possession of the Site…”

Article 29 Decree 15/2013/ND-CP specifies safety management during construction

GC is requested to review and add as per Article 29 Decree 15/2013/ND-CP

It is specified under Outline Site Safety Plan, the Contractor shall have full responsibility to develop this outline plan in accordance with relevant law and regulation, such has been specified under the outline

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site safety plan.

52 Sub-Clause 4.23 Contractor’s Operation on Site

At the end of Sub-Clause 4.23 first Paragraph, add the following new Paragraph:

“All work-sites used by the Contractor outside the Right-of-Way shall require the Employer’s approval.”

GC is requested to revise: “All work-sites used by the Contractor outside the Right-of-Way shall require the Competent level’s approval.”

Will be updated

53 Sub-Clause 4.28 Existing Utility Facilities

After new Sub-Clause 4.27, add the following new Sub-Clause 4.28:“The details of existing utilities, facilities, drains and sewer shown in the Specification and /or the Employer’s Drawings have been extracted from the records of utilities companies and relevant authorities. Such details are provided only for information and their accuracy is not warranted…”

GC is requested to explain the paragraph “ The details of existing utilities, facilities, drains and sewer... Such details are provided only for information and their accuracy is not warranted…” GC has carried out utilities survey, building conditions survey; therefore, GC is responsible for accuracy of such surveys performed by GC.

GC disagree and do not accept this

54 Sub-Clause 8.1 Delete the existing first Paragraph Article 6, Decree GC is requested to review This clause make no conflict

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Commencement of Works

and replace with the following Paragraphs:“The Commencement Date shall be the date specified in the notice to commence the Works issued by the Engineer to the Contractor pursuant to this Sub-Clause which will be prepared when the following precedent conditions have all been fulfilled.:(a) signature of the Contract Agreement by both Parties and concurrency of the Bank;(b) receipt by the Engineer of the confirmation of the Employer that the designated area associated with construction of all parts of Viaducts and Stations at Nguyen Van Huyen Road (designated as Access Date ADE 1 in Attachment-2 attached to Part A Contract Data of Particular Conditions of Contract) is ready to hand over to the Contractor,(c) receipt by the Contractor of the Advance Payment under Sub-Clause 14.2 [Advance Payment] provided that the corresponding bank guarantee has been delivered by the

48/2010/ND-CP stipulating validity and legal base of construction contract

and update in accordance with Decree 48/2010/ND-CP.

with all requirements under Article 6. However, some requirements under Article 6 has been satisfied at PQ and Tender stage. To be reviewed

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Contractor.The Engineer shall give the Contractor not less than seven (7) days notice of the Commencement Date.”

55 Sub-Clause 14.1The Contract Price

Delete Sub-Paragraph 14.1(d), and replace with the following;

“The Contractor shall submit to the Engineer, with 28 days after the Commencement Date, a proposed breakdown of each lump sum price item included in the Bill of Quantities. The Engineer may take account of the breakdown when preparing Payment Certificates, but shall not be bound by it.”

Article 18, Clause 3, Decree 48/2010/ND-CP stipulating payment for construction contract

GC is requested to add conditions of payment corresponding to Contract type specified in the approved Tendering Plan and in compliance with Article 18, Clause 3, Decree 48/2010/ND-CP.

Sub-Clause 14.2 specify conditions of payment for Unit Price contract, which is ruled under Article 19, Clause 2b: The Documents to be submitted by the Contractor for payment:

- Acceptance Agreement signed by Contractor, GC and Employer.

- List of Variation Orders (if any).

- Request for Payment (this request is equal to Statement in FIDIC, sub-clause 14.2).

56 Sub-Clause 14.7Payment

At the end of Sub-Clause 14.7, add the following new Paragraph;

“Disbursement procedures of JICA ODA Loans shall be applied for disbursement of the proceeds of JICA ODA Loans for eligible

The Employer shall not pay for any bank charges.

The Employer needs to place exact funds into specific accounts. The banks cannot deduct fees or charges from payments made, so any costs to get the payments into said

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payment under the Contract.

All payments to the Contractor for the Local Currency portion-Vietnamese Dong will be made by the Transfer Procedure under the Loan Agreement dated March 31st

2009 between the Bank and the Borrower. The payment shall be made into the bank account designated by the Contractor. All bank charges shall be borne by the Employer.

All payments to the Contractor for the Foreign Currency portion-Japanese Yen shall be made by the Commitment Procedure under the Loan Agreement dated March 31st

2009 between the Bank and the Borrower through a Letter of Credit (L/C). A Letter of Credit shall be established in favour of the Contractor by VIETCOMBANK through the Bank of Tokyo-Mitsubishi UFJ Co., Ltd. All bank charges shall be borne by the Employer. The charges towards

bank accounts must be borne by the Employer not the Contractor

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confirmation (if required by the Contractor) shall be borne by the Contractor. Extension of validity of L/C need is not envisaged. However, should validity of L/C need to be extended, for reasons solely attributable to the Contractor, the charges for such extension will be borne by the Contractor. In all other cases, L/C charges for extension or otherwise shall be borne by the Employer.

The Employer shall transfer an amount (in Vietnamese Dong) equivalent to the VAT for the Contractor of the particular month to the bank account designated by the Contractor within thirty (30) days after the issuing of Interim Payment Certificate by the Engineer for that month in accordance with Sub-Clause 14.6 of the Conditions of Contract and within sixty (60) days after the Employer receives the Final Payment Certificate.”

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35 Principles of ethical behavior in bidding

GC is requested to add an appendix of “Principles of ethical behavior in bidding”.

This is in the ITB and is a bidding issue not a contractual issue

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326-bql-da2-jack 1604

Documents

approved tendering plan

united states dollars

jica oda loans

independent design verifier

international competitive bid

bidding documents prepared

interim payment certificate

bid validity period