The company of Mr. Tran Dinh (in Cao Bang Province) in a partnership with company B and company C bid for the package A. The consortium wins the bid, each member self-implements the contract performance guarantee in proportion to work done in partnership. During the construction due to subjective reasons (due to the contractor's fault) company C does not perform the work undertaken in the partnership as the partnership agreement (the partnership agreement does not contain the content of contractors. Bid partnership will do the job if a partnership member does not complete its work). Mr. Dinh would like to ask, in this case, will your company and company B concluded that is an incomplete contract? Are your company and contractor B allowed to perform work that is not performed by Company C? How will the performance security be confiscated?
Regarding this issue,The Ministry of Planning and Investment has the following opinions:
Clause 3, Article 5 and Point b, Clause 5, Article 66 of the Bidding Law stipulate, in the case of a partnership, there must be a written agreement between the members, which clearly specifies the responsibilities of the head member of the partnership and general responsibilities, individual responsibilities of each member of the partnership; The contractor is not entitled to refund the contract performance guarantee in case of breach of agreement in the contract.
According to the guidance in Note (2), Clause 2.1, Section 2, Chapter III, Form of the invitation to bid for construction and installation issued together with Circular No. 03/2015 / TT-BKHĐT dated May 6, 2015 of the Ministry of Planning and Investment, Incomplete copper includes:
- The contract is concluded by the investor that the contractor is not completed and the contractor does not object;
- The contract is concluded by the investor that the contractor is not fulfilled, has not been approved by the contractor but has been concluded by an arbitration or a court in a favorable direction for the contractor.
Regarding Mr. Dinh's problem, bidding activities are carried out in accordance with the above provisions.
In addition, this is the situation that arises in the bidding, so the handling of the situation is done according to the provisions of Article 86 of the Bidding Law, Article 117 of Decree No. 63/2014 / ND-CP and is the responsibility of the owner and a competent person as defined in Articles 73 and 74 of the Bidding Law.