No. 04-NQ/TW dated August 21, 2006). In addition, the Law on Anti-Corruption issued by the National Assembly in November 2005 is also one of the important legal bases for anti-corruption work. In addition, Vietnam also actively participates in international and regional initiatives to contribute to the common efforts of the international community in the fight against corruption. Recently, on May 12, 2009, the Government issued Resolution No. 21/NQ-CP on the National Strategy for Anti-Corruption to 2020.
In late 2008, after the PCI incident (Pacific Consulting Company - Japan was accused of bribery in the Ho Chi Minh City East-West Highway construction project - a project using Japanese ODA loans), the Governments of Vietnam and Japan agreed to establish the Vietnam - Japan Joint Committee on Corruption Prevention and Control related to Japanese ODA with the aim of effectively coordinating the implementation of anti-corruption measures related to Japanese ODA for Vietnam. In December 2008, the Committee announced its commitment on measures that Vietnam and Japan need to take to prevent similar incidents from recurring. Accordingly, one of the anti-corruption measures related to ODA that the Government of Vietnam committed to implement is to build and deploy the application of an electronic bidding system in government procurement.
In addition, according to statistics from surveys and research, the annual government spending of countries around the world accounts for 10% - 20% of each country's GDP. The EU's government procurement costs account for about 16% of GDP, Italy about 11.9%, while the Netherlands about 21.5%. Vietnam, as a developing country, annually spends about 40% of GDP on development investment, of which about half of the total social investment capital is implemented through bidding [16]. Thus, the value of public procurement is very large for each country; types of works, goods and services purchased publicly
is also very diverse. Every year, countries have to spend a lot of time and resources to carry out public procurement through bidding. In order to reduce time and save costs, one of the solutions that many countries have researched and implemented is online bidding (e-bidding) in public procurement (government procurement), essentially applying e-commerce to public procurement (government procurement). This is an important content in the implementation of e-commerce in each country. It helps government spending achieve many benefits: saving costs, time, improving transparency in public procurement and promoting healthy competition among businesses, expanding space and time for procurement. In fact, many countries have been applying e-bidding in the e-Government system and have brought about many efficiency in government spending.
Grasping this trend, Vietnam has set out a specific plan and strategy to implement the roadmap for applying electronic bidding in government procurement. In the Master Plan for E-commerce Development for the 2006-2010 period issued together with Decision No. 222/2005/QD-TTg of the Prime Minister, one of the main goals to be achieved by 2010 is "government procurement bids are published on the websites of government agencies and e-commerce transactions are applied in government procurement". To achieve this goal, one of the policies and solutions that need to be done is to "amend the regulations on bidding in government procurement in the direction that investors must announce bidding invitations on the website of the state management agency on bidding and the websites of other agencies. Ministries, central branches, local government agencies of large cities must gradually proceed to sign government procurement contracts online". In addition, the Bidding Law issued in 2005 with principled provisions in Article 5 (posting bidding information on the bidding newspaper and bidding website) and in Article 30 (bidding
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Electronic bidding) has created the premise for the construction and development of electronic bidding in government procurement in Vietnam.
However, in Vietnam, the concept of "electronic bidding" or "electronic government procurement" is probably still a new concept for buyers, sellers and even managers. The 2005 Bidding Law has only one article on electronic bidding (Article 30). In the process of regional and international integration, especially when becoming an official member of the World Trade Organization (WTO), facing higher demands on ensuring competition, fairness and transparency, overcoming shortcomings, negative aspects, time extension, and closedness in bidding, while improving the efficiency of public procurement management, Vietnam needs to develop and implement electronic bidding. Therefore, it is very necessary to conduct a basic study of the legal system on e-bidding in some countries in the world, thereby drawing experiences in building the legal system and implementing e-bidding in Vietnam, especially in the context that Vietnam is gradually building an e-Government model in general and an e-bidding system in particular.
Based on the research objective, providing orientations and solutions for building and perfecting the law on electronic bidding in Vietnam in the coming time based on the experience of building the legal system and implementing electronic bidding in some countries, the author chose the topic " Law on electronic bidding in some countries, experience and applicability in Vietnam " to do the master's thesis in Law, majoring in International Law.
2. Purpose and tasks of the topic
* Purpose
The research on the topic aims to learn and provide readers with legal knowledge on electronic bidding of some countries as well as regulations.
Current Vietnamese laws related to electronic bidding and future improvement orientations to meet the requirements of the integration mechanism and the general socio-economic development of Vietnam.
* Mission
To achieve the above goals, the tasks are:
- Research on United Nations regulations related to bidding
electronic
- Laws of some countries in the world on electronic bidding, business
experience in building electronic bidding systems.
- Research the current status of e-bidding in Vietnam, current legal regulations on e-bidding,... From there, propose solutions to improve the related legal system in the coming time, meeting the requirements of the integration trend and the general socio-economic development of Vietnam.
3. Scope and objects of research
The topic focuses on studying the regulations on electronic bidding in legal documents of some countries such as Korea, UK, Philippines, and the regulations of the United Nations related to electronic bidding (considered from the perspective of e-commerce). On that basis, compare with the current legal framework on electronic bidding in Vietnam to evaluate, draw lessons and propose solutions for improvement.
4. Research methods
Based on the study of experience in building legal systems and implementing e-bidding in some countries in the world, comparing with relevant legal regulations of Vietnam to find similarities and differences, evaluate the role and benefits of e-bidding. Using a combination of synthesis, statistics, comparison, and analysis methods to
Research and solve problems. Use deductive and dialectical thinking methods to make directional recommendations to build a legal system on electronic bidding in Vietnam.
5. Theoretical and practical significance of the topic
In the context of strong and profound changes in the socio-economic conditions of Vietnam and the world, in the trend of deep integration into the regional and world economy, electronic bidding is a field that really needs attention because of the effectiveness and benefits it brings to the State while the relevant legal system has not been adjusted in a timely manner. The topic is a scientific research work on this issue. The research results will be additions to the theory of laws related to electronic bidding in Vietnam in the current period of international integration. The proposed contents and solutions of the topic can also be applied to partly solve the related problems that have been and are being raised in practice.
6. Structure of the thesis
In addition to the introduction, conclusion and list of references, the content of the thesis includes 3 chapters:
Chapter 1 : Overview of bidding and e-bidding
Chapter 2 : Laws on electronic bidding of some countries and the current status of the legal system of electronic bidding in Vietnam.
Chapter 3 : Experience in building electronic bidding systems of some countries and solutions to perfect the related legal system in Vietnam.
Chapter 1
OVERVIEW OF BIDDING AND E-BIDDING
1.1. CONCEPT AND CHARACTERISTICS OF PUBLIC PROCUREMENT
In the most general way, shopping is understood as the act of spending money to achieve a requirement, a goal or a plan. Depending on the source of money used, shopping has different characteristics.
1.1.1. Purchase from non-state capital sources
In the case of purchasing from non-state sources, purchasing can be understood as "going to the market" every day, shopping for equipment and supplies for personal and family needs.
In general, this is a method of purchasing by negotiation. Accordingly, the seller often gives a suggested price to discuss with the buyer in a "raising and lowering" way. When there is an agreement between the two parties, the purchase is completed.
This form of purchasing has many contents that are adjusted according to the clarification between the two parties. The capital here is usually the money owned by the buyer, so the purchasing decision is often quick, depending on the subjective consciousness of the buyer. If the buyer has enough information, has shopping experience and has the art of negotiation, meaning enough shopping capacity, it will be easy to succeed and vice versa.
1.1.2. Purchasing using State capital (public procurement)
Purchasing using State funds is called public procurement because it uses State funds to purchase for the benefit of the community. Generally, State funds are understood as funds owned by the people or originating from the people's ownership, therefore, it needs to be
The State manages according to the law. The most common form of this capital source is the State budget capital or credit capital guaranteed by the State. This basic characteristic is the basis for forming legal regulations on bidding in public procurement with the aim of ensuring the use and spending of State funds is effective, avoiding loss and negativity. The objects of procurement to meet the direct or indirect needs of the Government as well as the people are considered common needs and therefore procurement using State capital is often called Public Procurement.
1.1.3. General characteristics of public procurement
Public procurement (purchasing using State capital) has the following common characteristics:
- Clear shopping goals and content
Since the source of capital for the procurement is state capital (capital owned by the entire people), the procurement must have clear objectives. Both the inviting party (buyer) and the contractor (seller) are provided with the necessary information to clearly see the objectives and content of the procurement.
What is the purpose of purchasing goods, services or works? Who is it for? Who is the target? What is the content of the purchase? How much? What are the technical standards and quality? When will it be supplied?... The above information must be made public so that all individuals and organizations (contractors) with capacity and experience who wish to participate in the supply have the opportunity to be supplied. For that reason, public procurement activities need a Bidding Law with specific regulations to ensure publicity and transparency in information about procurement from state capital sources (state budget, state-guaranteed credit capital, state development investment credit capital, state-owned enterprise development investment capital and other capital managed by the state).
- There are many departments involved in the purchasing process.
In addition to the buyer (inviting party) and the seller (contractor), there is a third party that directly or indirectly participates in the bidding process, bid evaluation and bid award decision. Based on the management hierarchy, the investor is responsible for approving, checking and managing the stages of the bidding process.
In addition, state management agencies on bidding or related to bidding are responsible for monitoring and evaluating bidding results based on the provisions of the Law on Bidding and the Decree guiding its implementation.
In addition, because the source of money is from the people, everyone is responsible for detecting wrongdoings, non-compliance with the law, and negative events occurring during the bidding process. In the case of using external funding sources, the bidding process from start to finish is subject to the supervision of the sponsor and especially the bidding results must be agreed upon by the sponsor in the form of a "no objection letter".
In the public procurement bidding process, the inviting party has functions and duties, and is responsible for complying with the provisions of the Law on Bidding, but does not have full authority as in the case of purchasing through negotiation with its own funds.
- The decision to win the bid (award the contract) must be based on the evaluation results based on the requirements in the bidding documents and approved evaluation criteria and must comply with the correct procedures and requirements.
+ Publicity : the announcement of bidding information must ensure the opportunity for everyone to know and participate (except in cases of force majeure). The opening of bids and announcement of bidding results must be public, preventing negative manifestations that limit the transparency of bidding.