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VIETNAM ACADEMY OF SOCIAL SCIENCES
GRADUATE ACADEMY OF SOCIAL SCIENCES
------------------------

NGUYEN HUU MANH

ENSURING COMPETITION IN CONSTRUCTION BIDDING
BY LAWS OF VIETNAM

Major: Economic Law
Major code: 9380107

SUMMARY OF DOCTORAL THESIS

HANOI - 2020


The thesis is completed at
GRADUATE ACADEMY OF SOCIAL SCIENCES
Supervisors:: Assoc Prof. Dr. Nguyen Thi Van Anh

Reviewer 1 : Prof. Dr. Nguyen Thi Mo

Reviewer 2: Assoc Prof. Dr. Vu Thi Lan Anh

Reviewer 3: Assoc Prof. Dr. Duong Dang Hue
This doctoral thesis is to be defended before the Thesis Defense
Committee of the Graduate Academy of Social Sciences,
at: Graduate Academy of Social Sciences, 477 Nguyen Trai, Thanh Xuan,
Hanoi
Time:………….

Date:……………….

The thesis can be found at the Library:
- Vietnam National Library
- Library of the Graduate Academy of Social Sciences


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INTRODUCTION

1. The necessity of the thesis
Construction activities are a common activity in social life. To execute a
construction investment project, the investor must follow a process of many
different stages. In particular, there is a stage of organizing a bidding for
construction and installation to select a contractor to perform the project. In
essence, organizing the bidding for construction and installation is the selection
of contractors to perform construction works on the basis of ensuring
competition, fairness, transparency and economic efficiency. In recent years,
regulations on ensuring competitiveness in construction bidding have been
inconsistent and incomplete, leading to the following consequences: The right
of contractors is not guaranteed; acts of restricting competition and unfair
competition in construction bidding are common; Although organizing a
bidding, it is impossible to choose a worthy contractor; corruption,
wastefulness and loss of construction investment capital arise; The project
quality does not meet the requirements set out. In order to overcome the abovementioned shortcomings from reality, it is necessary to thoroughly research
practical issues from which to have solutions to complete the law to ensure
competition in construction bidding.
In the context of international integration, Vietnam has participated in the
signing of many international agreements with the content of ensuring

competition in construction bidding. These international commitments, as well
as international practices and experiences of other countries in construction
bidding, should be studied and acquired to improve Vietnam's legal provisions
on ensuring competitiveness in construction. Construction bidding.
In order to develop, enact and enforce laws, these activities need to be
based on a solid theoretical foundation. New bidding activities have been
applied in our country since the transition to a market economy. The basic
theoretical system of ensuring competition in general and ensuring competition
in construction bidding in particular in Vietnam is still being built and
completed. Studies of securing competition in a special field such as
construction bidding are few. Therefore, the implementation of the topic
"Ensuring competition in construction bidding according to Vietnamese law"
contributes to elucidating theoretical issues on competition guarantee, serving
as a basis for assessing the situation and refunding. Improving laws in a
specific field of construction bidding is essential.


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2. Research purposes
The research purpose of the thesis is to propose solutions to improve the
law and improve the efficiency of law implementation to ensure competition in
construction bidding. Research tasks of the thesis: (1) Clarify the theoretical
basis of ensuring competition in construction bidding; (2) Analyze the situation
of ensuring competition in construction bidding according to Vietnamese law;
(3) Propose solutions to improve the law and improve the efficiency of
ensuring competitiveness in construction bidding according to Vietnamese law.
3. Research object and scope of study
The object of the thesis is the theoretical and practical issues of ensuring
competition in construction bidding according to Vietnamese law. Scope of

research: (1) Regarding the content, the dissertation focuses on competition
law research in a special field, construction bidding, research to ensure
competition in construction bidding according to current regulations of
Vietnam, not researching to ensure competition in construction bidding in
Vietnam according to other sources of law, not researching laws to ensure
competition in other fields; (2) Regarding the time, the thesis only focuses on
the practical research on the implementation of the law to ensure competition
in construction bidding in Vietnam over the last 5 years.
4. Theoretical foundation and research methodology

The thesis uses the methodology of dialectical materialism and historical
materialism. The thesis also uses the theoretical background of competition
law, the theory of construction bidding to clarify the theoretical issues of
ensuring competition by law in a specific field of construction bidding. To
carry out the research tasks, the author will use many different research
methods, including: statistical methods; analytical and synthetic methods;
comparative method; logic analysis methods; Interdisciplinary and
interdisciplinary approaches.
5. New contributions to the science of the thesis
- Clarify the theoretical issues on ensuring competition in construction bidding
and ensuring competition in construction bidding according to law;
- Analyzing the current situation of Vietnamese law on ensuring competition in
construction bidding and the reality of implementing competition guarantee in
construction bidding in Vietnam today; analyzing the causes of the limitations
on ensuring competition in construction bidding according to Vietnamese law;


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- The thesis proposes a number of solutions to improve the law and improve

the efficiency of ensuring competitiveness in construction bidding according to
Vietnamese law.
6. Theoretical and practical meanings of the thesis
With the content and solution given in the thesis can be used as a reference in
the compilation, revision and completion of the theory, the legal provisions on
ensuring competition in construction bidding in Vietnam. . The dissertation's
research results can be used as teaching materials for legal training institutions,
competition law enforcement and construction bidding law in Vietnam today.
7. The structure of the thesis
In addition to the introduction, conclusion, list of abbreviated symbols, list of
tables, list of references, the content of the thesis is structured as follows:
Chapter 1: Overview of research situation and research theoretical basis
Chapter 2: Theoretical issues on assurance of competition in construction
bidding and law on assurance of competition in construction bidding
Chapter 3: The situation of ensuring competition in construction bidding
according to Vietnamese law
Chapter 4: Solutions to perfect the law and improve the efficiency of ensuring
competitiveness in construction bidding according to Vietnamese law
Chapter 1
OVERVIEW OF THE RESEARCH SITUATION
AND BASIS OF RESEARCH
1.1. OVERVIEW OF THE RESEARCH SITUATION RELATED TO
THE THESIS THEMES
The author has conducted a review of domestic and foreign studies
related to the thesis topic. The results show that:
- In theory, domestic and foreign studies have analyzed the concept and
characteristics of competition, but have not clarified the concept and
characteristics of competition in a particular field, construction bidding. The
studies have not clarified the concept and characteristics of guaranteeing
competition in construction bidding, nor have clarified the concept,

characteristics and objectives of ensuring competitiveness in construction
bidding according to law. . The studies have also analyzed the content of
ensuring the competitive environment in construction bidding, removing


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barriers for contractors participating in auctions. Studies have analyzed the
content of anti-competitive competition and anti-unfair competition in general.
There is an analysis and analysis of anti-competitive acts but in accordance
with the provisions of the Competition Law 2004, the contents of anticompetition restriction cannot be clarified from the perspective of general
theory. There have been no studies mentioning the theoretical issue of fighting
unfair competition in construction bidding.
- Regarding the analysis of the current situation of the law, there have
been many studies on bidding and construction bidding, but only mention the
contents of bidding in general, not yet analyzed and exploited in terms of
ensuring the environmental protection healthy picture in construction bidding.
The domestic and foreign studies have analyzed and assessed the current
situation of the anti-competitive law in general under the Competition Law
2004. For provisions on anti-competition restriction and competition in specific
fields, There have been a number of studies on the construction and installation
bidding to assess the status of the regulations on competition restriction in
bidding, but on the basis of the 2004 Competition Law (now expired). There is
a lack of studies on the status of legislation on restricting competition in
construction bidding under the Competition Law 2018, the status of anti-unfair
competition law in construction bidding.
- Regarding the practice of ensuring competition in construction bidding,
there are many studies reflecting the practice of ensuring a healthy competitive
environment in construction bidding. It specifies the acts of the bidding
organizer creating a barrier to the contractor's participation in bidding, acts that

do not ensure a healthy competitive environment in construction bidding. The
studies also reflect anti-competitive practices and anti-unfair competition in
construction bidding in Vietnam. The most serious acts of restricting
competition in construction bidding are anti-competitive agreements. Unfair
competition acts occur, including acts of bid rigging, bidding dumping,
infringement of business secrets, disparaging and disruptive activities of
competitors in the fight. construction and installation contractors. However, the
studies have not yet analyzed and pointed out the reasons for the limitations in
bidding organization creating barriers for contractors when participating in
bidding, as well as not performing well. responsibility to ensure a healthy
competitive environment in bidding. The studies have not yet analyzed and
clarified the reasons why anti-competitive practices, unfair competition in


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construction bidding have not been effective recently. The studies also have not
clarified the cause of the failure to ensure competition due to the failure to
ensure a healthy competitive environment in construction bidding or to prevent
anti-competitive restrictions and anti-unfair competition. Strong in construction
bidding is not effective.
- Regarding proposed solutions, domestic and foreign studies have also
mentioned many solutions to amend laws and improve efficiency to ensure
competition in construction bidding. A number of recommendations to improve
the law have been absorbed during the development of the 2018 Competition
Law. However, there are still some issues that need to be clarified in the
Competition Law 2018 or amended related documents to ensure consistency,
uniformity, assurance of conformity and enforceability. The studies also
proposed a number of solutions to improve the efficiency of ensuring
competitiveness in construction bidding, especially the recommendations of

prestigious organizations such as OECD, WB, Transparency International.
(TI).
The thesis inherits some content in previous studies, and continues to
clarify: (1) Some theoretical issues, such as the concept and characteristics of
competition in a particular field, namely construction and installation
contractors; The concept and characteristics of ensuring competition in
construction bidding; The concept, characteristics and objectives of ensuring
competition in construction bidding according to law; Theories about anticompetitive competition and unfair competition in construction bidding; (2)
Regarding the analysis of legal status, the thesis will continue to clarify: The
situation of regulations on ensuring a healthy competitive environment in
construction bidding; Actual situation of laws on restraint of competition in
construction bidding according to the Competition Law 2018, the situation of
anti-unfair competition law in construction bidding; (3) Regarding the practice
of ensuring competition in construction bidding, the thesis will continue to
clarify: The causes leading to the limitations of the bidding organizer creating
barriers for contractors. when participating in bidding, as well as failing to
perform well the responsibility to ensure a healthy competitive environment in
bidding; The causes against anti-competitive acts, unfair competition in
construction bidding recently have not been effective; Clarification of the
reasons for the failure to ensure competition is due to the failure to ensure a
healthy competitive environment in construction bidding or to prevent


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competition restriction and unfair competition in construction bidding.
Ineffective; (4) Regarding the proposed solution, the dissertation continues to
propose a number of issues to improve the law in order to ensure consistency,
uniformity, assurance of conformity and enforceability of the law on assurance.
compete in construction bidding. Proposing the application of a number of

international experiences to improve the efficiency of ensuring competitiveness
in construction bidding according to Vietnamese law.
1.2. BASIS OF RESEARCH THEORY
The issues that the dissertation research will go into answer the following
questions:
- What are the characteristics of competition in construction bidding?
- What is the guarantee of competition in construction bidding?
- What is the content of competition guarantee in construction bidding?
- Does the practice of using the law ensure competition in construction bidding
in Vietnam today?
- What are the reasons for not guaranteeing competition in construction bidding
in Vietnam? Among these causes, which are the main causes?
- In order to ensure competition in construction bidding according to
Vietnamese law, which direction must the law be completed?
- What solutions are needed to improve the law to ensure competition in
construction bidding?
- What solutions are needed to improve the efficiency of implementation of
ensuring competitive competition in construction bidding in Vietnam?
The main theories used by the thesis to research and answer the questions
include competition theory and bidding theory. Competition theory is used to
solve the concept, characteristics of competition guarantee, content against
competition restriction and unfair competition. The theory of construction
bidding is used to further clarify the characteristics of competition in a specific
domain, namely construction bidding, to further clarify the characteristics of
ensuring competition in the field of construction and installation bidding.
clarifying the responsibilities of the bidding organizer in ensuring a healthy,
open and transparent competitive environment, clarifying acts of restricting
competition and unfair competition in construction bidding. Competition
theory and bidding construction theory are also the basis for reviewing the
current provisions of Vietnamese law, which is the basis for making

recommendations for completion.


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Chapter 2
THEORETICAL ISSUES ABOUT COMPETITION ASSURANCE
IN CONSTRUCTION BIDDING AND LEGAL ENSURANCE
GUARANTEE COMPETITION IN BIDDING BIDDING
2.1. THEORETICAL ISSUES ABOUT ENSURING COMPETITION IN
BIDDING FOR BIDDING
2.1.1. Concept and characteristics of competition in construction bidding
Competition in construction bidding is understood as a competition, trying to
win on their side, between contractors in the bidding process to gain the right
to perform the jobs of the process of construction and public installation.
Works, construction items.
Competition in construction bidding has the following basic characteristics: (1)
Competition in construction bidding is competition between construction
contractors; (2) Competition in construction bidding is competition between
construction contractors to win on their side; (3) The purpose of the rivalry
between contractors (the rivalry of suppliers) in order to gain the right to enter
into and perform a construction contract with the investor (the buyer of the
project), thereby gaining profits; (4) Competition in construction bidding is
competition in a special market area. The special nature of this market sector is
derived from the supply of construction products; (5) Competition in
construction bidding is always associated with the decisive role of investors
(works shoppers).
2.1.2. Factors affecting competition in construction bidding
Ensuring competition in construction bidding is influenced by many different
factors in the competitive environment, such as acts of entities participating in

construction bidding, legal, political, economic factors. , society.
2.1.3. The need to ensure competition in construction bidding
In order to promote the efficiency of using capital for procurement of
works, establishing a healthy competitive order and environment in
construction bidding, protecting the legitimate interests of contractors
participating in competition, the State needs to use adjustment tools to ensure
competition in construction bidding.


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2.1.4. Definition and characteristics of assurance of competition in
construction bidding
Ensuring competition in construction bidding is the use of competition
policies by the State, including many different measures and tools to establish
and maintain the competitive environment and combat anti-competitive acts. ,
unfair competition acts in construction bidding.
Ensuring competition in construction bidding has the following
characteristics: (1) The subject to ensure competition in construction bidding is
the State; (2) The objective of ensuring competition in construction bidding is
to remove barriers to the market of construction and installation service
provision, to expand opportunities for contractors to participate in competition
in construction bidding; establishing a healthy competitive environment among
contractors and against acts of restricting competition and unfair competition in
construction bidding. In addition, the assurance of competition in construction
bidding is also to protect genuine contractors, not to be targeted by the investor
in advance to win the bid, to ensure that they can participate in the competition
with their own capabilities to win right to perform construction and installation
package; to protect investors as shoppers against acts of collusion or unfair
competition by contractors, affecting the investor's selection of contractors;

improve the efficiency of project procurement capital; (3) Tools to ensure
competition in general and to ensure competition in construction bidding in
particular include many different tools. The State uses two main tools to ensure
competition in construction bidding, namely legal and economic instruments;
(4) The content of competition guarantee in construction bidding includes the
development of competition policies, competition policy enforcement agencies
and conditions for enforcing competition policy in the field of bidding. build.
2.1.5. The concept and characteristics of ensuring competition in
construction bidding according to law
Ensuring competition in construction bidding according to law is the use
of the law by the State as a tool to establish and maintain a competitive
environment in construction bidding and combat anti-competitive acts, unfair
competition in construction bidding.
Ensuring competition in construction bidding according to the law has
some following characteristics: (1) The subject to ensure competition in
construction bidding is the State; (2) The law is used to remove contractors'
barriers to entry into the competitive market, to build a healthy competitive


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environment and to prevent acts of restricting competition, unfair competition
in the field of construction bidding is the law of competition in a specific field
of social life - the field of construction bidding; (3) The scope of ensuring
competition in construction bidding according to the law is to ensure a healthy
competitive environment among contractors when participating in auctions, to
be fair competition with each other to win the right to sign. contract
construction works with the investor.
2.2. THEORETICAL ISSUES ABOUT LEGISLATION ENSURING
COMPETITION IN BIDDING BIDDING

2.2.1. Objectives of the law to ensure competition in construction bidding
The objectives of the law to ensure competition in construction bidding
include: (1) removing barriers to the market of construction and installation
service provision, expanding opportunities for contractors to participate in
construction bidding, establishing a healthy competitive environment among
contractors and against acts of restricting competition and unfair competition in
construction bidding; (2) To protect the rightful contractors, not to be awarded
by the investor in advance to win the bid, to ensure that they are participating
in competition with their own capabilities to win the right to perform the
construction and installation package; (3) Protect the investor as a shopper
against acts of collusion or unfair competition by contractors affecting the
investor's performance of contractor selection; (4) Improve the efficiency of
using capital for procurement of works.
2.2.2. Ensuring a healthy competitive environment in construction and
installation bidding
Ensuring a healthy competitive environment in construction and
installation bidding means ensuring the right to participate in bidding,
removing barriers to entering the construction and installation market and
barriers to participating in bidding, and ensuring a competitive competitive
environment. , transparency in the bidding process. Acts of the organizer do
not fulfill their responsibilities in ensuring the competitive environment in
construction bidding, obstructing, restricting competition in construction
bidding, and disrupting the purpose of the organization. Bidding organizations
will be handled in accordance with the law on construction bidding. Common
sanctions applied to these violations are not recognizing bidding results,
imposing fines for violations, banning participation in bidding organizing


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activities, and disciplinary forms other officials. A number of violations of the
bidding organizer in ensuring the competitive environment in construction and
installation bidding, performing acts of obstructing or restricting competition in
construction bidding, breaking the purpose of The organization of construction
bidding may also be subject to criminal penalties.
2.2.3. Anti-competitive restriction in construction bidding
Acts of restraint of competition include acts of agreements restricting
competition, abusing dominant or monopoly position to restrict competition
and acts of economic concentration affecting competition. The horizontal
agreements in construction bidding are usually those relating to preventing new
competitors from entering the market, agreeing on prices, dividing the market,
colluding for one or the winning parties ... along with construction contractors
and other enterprises involved in the construction of construction works but not
as direct competitors to win bidding packages, which are usually agreements
on fixing or fixing prices of goods supply. chemicals for contractors not
participating in the agreement, causing difficulties to such contractors when
competing; negotiate to limit or fix the price and return the work to
subcontractors. Abuses of dominant positions or monopoly positions that
eliminate competitors may include preventing the entry or expansion of
competitors' business or prompting them to withdraw from the service
provision market. build; Exploiting abusive behavior may include contractors
having dominant positions, monopoly positions paying low prices for inputs or
setting high prices for their construction services or imposing unreasonable
conditions for the parties depends on the contractor has a dominant position,
exclusive position. Acts of economic concentration (merger, consolidation,
acquisition, joint venture, etc.) are prohibited when the consequences of an
economic concentration act significantly increase the ability to exercise market
power and market share. economic concentration makes enterprises dominate
or monopoly, significantly reducing competition in the market.
If the competition or judicial authority determines that the anticompetitive behavior is determined, depending on the severity, the level of

impact and the damage caused by the act, the handling of violations shall be
applied. different. Common sanctions applicable to competition restriction acts
include: imprisonment; monetary fine; prohibit temporarily or prohibit
violations, request cancellation of violations and remedial measures;
divestments; damages.


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2.2.4. Against unfair competition in construction bidding
Unfair competition acts in the field of construction bidding have some
basic acts such as: (1) Acts of accusation against competitors (on factors
associated with competitors). , such as goods, prices, financial status,
employees, qualifications, technology equipment ...) in order to reduce the
reputation of competitors; (2) Acts of infringing on business secrets of other
contractors cause loss of competitive advantages of competitors; (3) Bidding
dumping behavior. The bidder bids below the cost price to increase the
likelihood of winning the bid; (4) Fraudulent acts about the contractor's ability,
when the contractor intentionally declares untruthful information to improve its
capacity in the bid. The acts of unfair competition are of private law, so dealing
with acts of unfair competition mainly applies civil sanctions (according to the
principle of liability for compensation outside contract) or criminal sanctions.
Besides, if the contractor's fraudulence is detected, the organization may fail
the bidder and fail to pay bid security; sanctioned by competent agencies,
prohibited from participating in bidding indefinitely or for a definite time.
Chapter 3
CURRENT SITUATION OF ENSURING COMPETITION
IN CONTRUCTION BIDDING UNDER VIETNAMESE LAW
3.1. CURRENT SITUATION OF VIETNAMESE LAW ON
ENSURING COMPETITION IN BIDDING

3.1.1. Situation of Vietnamese law on ensuring a healthy competitive
environment in construction bidding
Investment law prescribes sectors and trades banned from business,
conditional business lines and professions that are free to do business.
Construction law prescribes specific conditions for individuals and
organizations engaged in business activities in the field of construction and
installation. The law on construction bidding has many provisions related to the
responsibility of the bidding organizer in order to create a healthy competitive
environment and remove barriers for contractors when participating in
construction bidding. fitting. Current specialized legislative documents on
construction bidding include the Bidding Law 2013 and the Decrees and
Circulars detailing, attached instructions. Acts of failing to ensure a healthy
competitive environment in construction and installation bidding shall be


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handled by criminal sanctions according to the Criminal Code 2015 (amended
and supplemented in 2017), and administrative handling. is regulated in the
Government's Decree No. 50/2016 / ND-CP of June 1, 2016, on administrative
sanctions in the field of planning and investment, disciplinary action and
liability for compensation due to Internal violations are applied in accordance
with relevant general regulations. Compared to general practice, the provisions
of the Bidding Law 2013 on ensuring a healthy competitive environment in
construction bidding still have some differences.
3.1.2. Situation of Vietnamese law provisions against anti-competitive
competition in construction bidding
The acts of restraint of competition in construction bidding are prescribed
in the general law of competition law, the separate law is the law of
construction bidding. The act of negotiating restraint of competition in

construction bidding in the form of bidding is prescribed in the Bidding Law
2013 and the Competition Law 2018. However, the cases of bidding in
accordance with the Bidding Law 2013 are also different. Particularly for cases
of general bidding which are detailed in Decree 116/2005 / ND-CP of
September 15, 2005, detailing the implementation of a number of articles of the
2004 Competition Law, as well as compared with other kinds of information.
OECD bid (2012). Under the Competition Law 2018, enterprises or groups of
enterprises are considered to have a dominant market position when having
significant market power or a large market share capable of causing anticompetitive effects. Significant market power is assessed based on many
factors, not just market factors as before. The 2018 Competition Law prohibits
acts of abusing dominant market position, monopoly position that eliminates
opponents and exploits. To prevent acts of economic concentration that restrict
competition in the market, the Competition Law 2018 also provides a control
mechanism for enterprises when performing certain acts of economic
concentration, merger, consolidation or acquisition of enterprises; joint
ventures between businesses ...
Currently, the Penal Code 2015 (amended and supplemented in 2017)
provides penalties for anti-competitive agreements. However, because the
Criminal Code 2015 (amended and supplemented in 2017) is built on the basis
of anti-competitive acts established under the Competition Law 2004. The
Chairman of the National Competition Commission will issue settlement of
violations (for acts of economic concentration) or establishment of anti-


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competitive settlement council (for violations of anti-competitive agreements;
abuse of market dominance and monopoly position) rights) to deal with each
specific case. Prohibited acts of competition restriction may be subject to
warning or fine. Depending on the nature and seriousness of violations,

competition organizations and individuals may also be subject to one or several
additional sanctions and remedial measures. The bidding law also stipulates
special forms of handling such as cancellation of bidding, banning participation
in bidding, and naming in the list of violating contractors.
3.1.3. Situation of Vietnamese law provisions against unfair competition in
construction bidding
The Competition Law 2018 stipulates prohibited unfair competition acts
including 7 acts. Compared to WIPO (1994), WB & OECD (1999), unfair
competition competition classification is basically classified according to the
provisions of the Competition Law 2018. Mainly healthy. The Bidding Law
2013 also prohibits acts of unfair competition (acts of manipulating illicit
customers) when contractors intentionally provide untruthful information in
bids to improve competitiveness. It is not true to its nature that falsifies the
results of contractor selection.
Article 217 of the 2015 Penal Code (amended in 2017) provides penalties
for violations of competition regulations. In which only penalties for
competition restriction acts are prohibited, penalties for unfair competition acts
are not prescribed. However, the act of cheating in a tender for construction
and installation by a contractor is an individual when intentionally supplying
untruthful information in bids to raise competitiveness not in accordance with
his / her true nature. The result of contractor selection (an act of unfair
competition enticing nefarious customers under the provisions of the
Competition Law 2018) causes serious consequences and may be subject to
criminal penalties under Article 222 of the Ministry. Criminal law 2015
(amended and supplemented in 2017).
The acts of unfair competition prohibited in bidding in construction and
installation in violation of the state management order in competition shall be
decided by the President of the National Competition Commission to handle
violations. Unfair competition acts cause damage to the legitimate rights and
interests of other enterprises, in principle, the abused enterprises have the right

to sue according to civil procedures for compensation. The bidding law also
provides for special sanctions against violating contractors, such as


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cancellation of bids, banning participation in bidding, and being named in the
list of violating contractors.
3.2. PRACTICE OF ENSURING COMPETITION IN CONSTRUCTION
BIDDING IN VIETNAM TODAY
3.2.1. Practice of ensuring competitive environment in construction
bidding in Vietnam
The reality of a healthy competitive environment in construction bidding
is not guaranteed. General barriers to the market of construction and
installation service provision such as requirements for business registration,
and construction practice certificates under the current provisions of
Vietnamese law are not significant. domestic contractors, and foreign
contractors providing construction services in very large markets. However,
there are many barriers created to prevent the number and scope of contractors
participating in construction bidding, and many acts of the bidding organizer
affecting the fair competitive environment. strong among contractors,
falsifying bidding results. Some typical manifestations include: (1) the act of
selecting a tender form that eliminates or restricts the participation of
contractors in construction bidding; acts of setting specific conditions and
criteria for bidding participation to limit the number and scope of contractors
participating in bidding; (3) acts of preventing contractors from accessing
bidding information, bidding documents; (4) acts of discrimination when
evaluating bids; (5) unsatisfactory handling of bidding proposals.
The handling of violations to ensure a healthy competitive environment
in construction bidding by criminal, administrative, civil and disciplinary

measures also fails to work.
3.2.2. Practice against competition restriction in construction bidding in
Vietnam
Activities of anti-competitive competition in construction bidding have
not been effective. The most serious acts of restricting competition in
construction bidding are anti-competitive agreements. However, it is not easy
to detect acts of restricting competition in construction bidding, especially
underground agreements. According to statistics, so far no cases of violation of
competition restriction in bidding for construction and installation have been
handled.


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3.2.3. Practice of unfair competition in construction bidding in Vietnam
Unfair anti-competitive activities in construction bidding are also not
effective. Unfair competition acts in construction bidding have not handled any
cases according to competition legal proceedings. It is only now handled by the
ban on participating in biddings and the names of violating contractors due to
frauds of bidder's capacity according to the provisions of bidding law.
3.3. RESTRICTIONS AND THE CAUSES OF RESTRICTIONS ON
COMPETITION ASSURANCE IN BIDDING FOR BIDDING UNDER
VIETNAMESE LAW
3.3.1. Restrictions and causes of restrictions on ensuring a healthy
competitive environment in Vietnam
The practice of acts that do not guarantee a healthy competitive
environment in bidding, creating barriers to the contractor's participation in
construction bidding is considered to be the most serious impact, affecting
effective assurance of competition in construction bidding in Vietnam today.
Because, the bidding organizer can completely eliminate competition in

bidding by choosing the form of bidder appointment. If the bidder designation
cannot be applied, the bidding organizer may apply a limited bidding form,
with a limited number of bidders. In addition, the organization may use specific
criteria for the capabilities, experience of the contractor or goods used in the
work to eliminate the participation of unwanted contractors. limited
participation of contractors, most of whom were contractors at the bid
organizers' wishes, had reduced competition. An unfair evaluation of bids will
make competition among bidders more formal. The choice of contractor really
depends on the will of the bidding organizer, which is mainly the will of the
investor.
There are many different causes leading to acts of obstructing contractors'
participation in construction bidding, failing to ensure a healthy competitive
environment in the bidding for construction and installation by the bidding
organizer. The main reasons include: (1) due to the huge influence and
influence of the investor on other entities participating in the bidding; (2) due
to the group interests or the sharing of economic benefits, investors and other
entities participating in the bidding organization as well as some targeted
contractors do not want to have the edge. real competition in construction
bidding; (3) due to the imperfections of the law on ensuring a healthy
competitive environment in construction bidding; mechanisms to prevent and


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prevent acts that do not ensure a healthy and ineffective competitive
environment; as well as the handling of violations for acts of failing to ensure a
healthy competitive environment in construction bidding are not yet effective.
However, the incomplete law; or lack of preventive and preventive measures;
or the failure to handle violations well in recent years, is only a supplementary
factor to increase many violations to ensure competition in practice. If there is

a more complete legal system; or there are many measures to prevent and
prevent violations; or the handling of violations more effectively, the handling
of violations to ensure competition is more effective only contribute to creating
a protective barrier to reduce the violations in practice.
3.3.2. Restrictions and causes of restrictions on anti-competitive
competition in construction bidding in Vietnam
Among anti-competitive acts, the anti-competitive agreement acts are the
most serious. In the practice of construction bidding in Vietnam, anticompetitive activities in construction bidding are ineffective due to a number
of reasons: (1) due to the diversity and complexity of restrictive acts
themselves. competition in construction bidding; (2) because Vietnam's anticompetition laws still have many limitations; (3) due to ineffective propaganda,
dissemination and education of competition laws in the field of construction
bidding; (4) due to poor enforcement of law enforcement agencies; (5) due to
the participation and support of other state agencies and enterprises, the anticompetitive competition in construction bidding has not been effective.
3.3.3. Restrictions and causes of restrictions on unfair competition in
construction bidding in Vietnam
The acts of unfair competition are of less serious nature compared with
the acts of restraint of competition or acts of the bidding organization that do
not ensure the competitive environment, creating barriers to the participation of
investors. Bidding on bidding. Practices against unfair competition in
construction bidding are not effective, originating from the following reasons:
(1) due to the law against anti-unfair competition in construction bidding is still
limited; (2) due to ineffective propaganda, dissemination and education of
competition laws in the field of construction bidding; (3) due to poor
enforcement of anti-competitive law enforcement in construction bidding; (4)
due to the participation and support of other state agencies, businesses and
social communities in the fight against unfair competition in construction
bidding, it has not been effective.


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Chapter 4
SOLUTIONS TO PERFECT THE LAW AND IMPROVE EFFICIENCY
TO ENSURE COMPETITION IN BIDDING FOR BIDDING
ACCORDING TO VIETNAM LAW
4.1. ORIENTATION OF LEGISLATION IMPLEMENTATION TO
ENSURE COMPETITION IN BIDDING IN CONSTRUCTION
BIDDING IN VIETNAM
Orientations to improve the law to ensure competition in construction
bidding: (1) Ensure the comprehensiveness, uniformity and uniformity of the
law to ensure competition in construction bidding; (2) Ensuring the suitability
and feasibility of the law to ensure competition in construction bidding; (3)
Ensuring a healthy competitive environment in construction bidding; (4)
Ensuring prevention and combat of acts of restricting competition and unfair
competition in construction bidding.
4.2. SOLUTIONS TO COMPLETE THE LAW TO ENSURE
COMPETITION IN BIDDING IN BIDDING IN VIETNAM
4.2.1. Solutions to perfect the law to build a healthy competitive
environment in construction bidding
Solutions to perfect the law to ensure a healthy competitive environment
in construction bidding in Vietnam include:
- Prohibiting investors from bidding or directly setting up bid solicitors
and providing forcing investors to select contractors through professional
intermediary bidding and to apply the bidding method. electronic;
- Excluding group interests or sharing of interests in construction bidding
between the bidding organizer and the participating contractors;
- Completing a number of current legal regulations to avoid being taken
advantage of by bidding organizers in order to create barriers to contractors'
participation in bidding, failing to ensure a healthy competitive environment. in
bidding, including: (1) stipulating the responsibility of the tender organizer in

selecting the appropriate bidding form; (2) it is necessary to abolish the
application limit of contractor appointment and stipulate the conditions to
apply this form; (3) It is necessary to specify the responsibility to organize


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consultations between the bidding organizer and relevant associations,
contractors, experts before proceeding to formulate the bidding documents.
Requirements on experience of contractors as well as requirements for
equipment and materials used are only specified at the qualitative level,
describing the function of materials and equipment without specific
quantification. , to avoid the use of these criteria restricting bidders from
attending. The bidding documents should also specify how to assess and
convert between Vietnam's national and international standards and regional
standards of equipment, technology and materials used to facilitate evaluation.
fairness to contractors; (4) Regulating the investor's mandatory responsibility
for posting information when applying direct bidding, direct procurement, and
self-implementation to facilitate supervision in case the investor applies
Bidding is not competitive. Regulations on the application of electronic supply,
acceptance of bidders to submit bids online or electronically; (5) mandate the
use of electronic assessment to avoid direct human intervention in the
assessment decision; (6) stipulate the authority and procedures for resolving the
contractor's petitions, the authority to cancel the contractor selection result.
4.2.2. Solutions to perfect the law against anti-competitive acts
prohibited in construction bidding
- It is necessary to amend and supplement acts of bidding in the Bidding
Law 2013.
- It is necessary to amend the Crime of violating the provisions on
competition in the Penal Code 2015 (amended and supplemented in 2017) in

accordance with the Competition Law 2018.
4.2.3. Solutions to perfect the law to combat unfair competition acts
in construction bidding
- It is necessary to abolish the regulations on sanctioning frauds in
declaring the capacity of dishonest contractors in the bids specified at Point b,
Clause 2, Article 23 of Decree No. 50/2016 / ND-CP of June 1, 2016. sanction
administrative violations in the field of planning and investment. All acts of
unfair competition in construction bidding such as frauds in bids, bidding
dumping, infringing on business secrets of other contractors or disparaging
competitors are handled centrally according to regulations. regulations of


19

competition law, sanctioned by the President of the National Competition
Commission. In order to ensure the principle that each administrative violation
act shall be sanctioned only once, it should be clearly stated that handling
measures such as elimination of bids, cancellation of bidding, failure to pay bid
security, and ban from participation biding, naming violating bidders on the
national bidding network system are not administrative sanctions.
- Need to specify the responsibility of forwarding the breaching case of
the bidding organizer, the state management agency on bidding to the National
Competition Commission for cases of contractors showing signs of
competition violation healthy in bidding.
4.3. SOLUTIONS TO IMPROVE EFFICIENCY OF IMPLEMENTING
LEGISLATION TO ENSURE COMPETITION IN BIDDING IN
CONSTRUCTION BIDDING IN VIETNAM
4.3.1. Strengthen specialization, electronicize the organization of
construction bidding
It is necessary to build the organization of bidding through state-owned

professional bidding centers or bidding agency business enterprises. The
independence of the bidding center from the investor and the authorized person
also contributes to reducing the intervention of the investor and the competent
person in the evaluation, evaluation and bid guarantee of the center. Bidding is
carried out equally. With the professionalism of the bidding officers at these
centers, with the statistical and warning software, recognizing the collusion
phenomenon between businesses, along with the appropriate reward regime for
the discoverers. violations, will contribute to limit the collusion acts between
contractors.
The application of network and electronic technologies should be
implemented in bidding to contribute to cost savings; transparency and
publicity of bidding activities, reducing barriers of the bidding organizer to
participating contractors; help analyze and evaluate bids to detect frauds and
collusion acts in bidding; facilitate fair evaluation of bids.
4.3.2. Strengthening training, retraining, propagation, dissemination and
education of legal provisions on assurance of competition in construction
bidding


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It is necessary to strengthen the training, fostering, propaganda,
dissemination and education of the law on ensuring the right of competition in
construction bidding. Apart from theoretical training, bidding training skills
and skills for people participating in bidding are also essential. Especially, the
skills to apply electronic technology, to use the online bidding system, the
skills to identify competition violations are very new skills, if implemented.
4.3.3. Strengthen supervision, examination and inspection of construction
bidding activities
Need to strengthen the responsibility of supervision, examination and

inspection to promptly detect and handle acts of competition violations of
contractors in construction bidding. Need to develop internal monitoring
mechanism and independent monitoring outside the bidding process. In order
to encourage the supervision and detection of acts of bid rigging and acts of
unfair competition, the reward regime may be applied to people with merits of
detecting violations. Bonuses are deducted from fines for acts of bidding or
unfair competition from contractors.
4.3.4. Enhancing the coordination between bidding management agencies
and competition agencies in combating competition restriction and unfair
competition
It is necessary to strengthen the cooperation between the State
management agencies in charge of construction bidding and the National
Competition Commission in training, detecting and promptly handling
violations of ensuring competitive competition. construction and installation
contractors. The National Competition Commission shall coordinate training
for employees participating in bidding, employees of state management
agencies on bidding to identify signs of anti-competitive acts, unfair
competition acts. On that basis, during the process of bidding, the bidding
organizer or the state management agency in charge of bidding is capable of
detecting and forwarding it to the National Competition Commission to
conduct investigation and handling of violations of competition.


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CONCLUSION
1. Competition in construction bidding is competition in a special market
area, contractors compete with each other to win the right to sign and perform
construction and installation contracts with investors. Competition in
construction bidding is always associated with the decisive role of investors

(construction shoppers).
2. Ensuring competition in construction bidding according to law means
the State's use of law as a tool to establish and maintain a competitive
environment in construction bidding and combat against acts of restraint of
competition. competition, unfair competition in construction bidding.
3. The provisions of the law to build a healthy competitive environment,
openness and transparency in bidding, removing barriers to the construction
market in general as well as barriers to participating in auctions. In particular, it
is stipulated in specialized laws. Provisions on anti-competitive restriction and
unfair competition in construction bidding are given priority to apply some
provisions of specialized laws on construction bidding, the rest comply with
general provisions of law. competition law.
4. The reality of a healthy competitive environment in construction
bidding is not guaranteed. General barriers to the market of construction and
installation service provision such as requirements for business registration,
and construction practice certificates under the current Vietnamese law are not
significant. The behavior of the tender organizer does not ensure a healthy
competitive environment in bidding, creating barriers to the contractor's
participation in the bidding for construction and installation which is
considered to be the most serious impact act. , affecting the efficiency of
ensuring competitiveness in construction bidding in Vietnam today. Practice of
anti-competitive practices and anti-unfair competition in construction bidding
is also ineffective. Up to now, there has not been any cases of violations of
competition restriction and unfair competition in construction bidding.
5. The basic causes leading to acts of failing to ensure a healthy
competitive environment in bidding, creating barriers to contractors'
participation in construction bidding, include: (1) cooperation influence and


22

influence of the investors on other entities participating in the bidding
organization; (2) the sharing of interest groups leads to investors and other
entities participating in the bidding organization who do not want to have real
competition in construction bidding; (3) the implementation of the law to
ensure a healthy competitive environment in construction bidding; mechanisms
to prevent and prevent acts that do not ensure a healthy and ineffective
competitive environment; as well as the handling of violations for acts of
failing to ensure a healthy competitive environment in construction bidding are
not yet effective.
6. Causes of anti-competitive activities and unfair competition in
ineffective construction bidding include: (1) anti-competitive law and antiunfair competition law. Construction bidding is still limited; (2) due to
ineffective propaganda, dissemination and education of competition laws in the
field of construction bidding; (3) due to poor enforcement of anti-competitive
law and anti-unfair competition laws in construction bidding; (4) due to the
participation and support of other state agencies, businesses and social
communities in the fight against anti-competitive competition and unfair
competition in ineffective construction bidding.
7. Basic orientations for perfecting the law to ensure competition in
construction bidding, including: (1) Ensuring the comprehensiveness,
uniformity and uniformity of the law on assurance of competition in bidding
for construction and installation; (2) Ensuring the suitability and feasibility of
the law on ensuring competition in construction bidding; (3) The impact of the
investor on the selection of contractors should be limited; limiting cases of
conflict of interest in construction bidding to ensure a healthy competitive
environment in construction bidding; (4) It is necessary to complete the legal
provisions to combat bid collusion. Clearly stipulate types of tendering acts and
signs of fuller and clearer identification; revising the sanctions for
anticompetitive acts in the relevant laws to synchronize with the Competition
Law 2018. For anti-unfair competition, it is necessary to further clarify the

competence to handle regarding acts of unfair competition in construction
bidding.


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8. Solutions to perfect the law to ensure a healthy competitive
environment in construction bidding in Vietnam include:
- Prohibiting investors from bidding or directly setting up bid solicitors
and providing forcing investors to select contractors through professional
intermediary bidding and to apply the bidding method. electronic;
- Excluding group interests or sharing of interests in construction bidding
between the bidding organizer and the participating contractors;
- Completing a number of current legal regulations to avoid being taken
advantage of by bidding organizers in order to create barriers to contractors'
participation in bidding, failing to ensure a healthy competitive environment. in
bidding, including: (1) stipulating the responsibility of the tender organizer in
selecting the appropriate bidding form; (2) it is necessary to abolish the
application limit of contractor appointment and stipulate the conditions to
apply this form; (3) It is necessary to specify the responsibility to organize
consultations between the bidding organizer and relevant associations,
contractors, experts before proceeding to formulate the bidding documents.
Requirements on experience of contractors as well as requirements for
equipment and materials used are only specified at the qualitative level,
describing the function of materials and equipment without specific
quantification. , to avoid the use of these criteria restricting bidders from
attending. The bidding documents should also specify how to assess and
convert between Vietnam's national and international standards and regional
standards of equipment, technology and materials used to facilitate evaluation.
fairness to contractors; (4) Regulating the investor's mandatory responsibility

for posting information when applying direct bidding, direct procurement, and
self-implementation to facilitate supervision in case the investor applies
Bidding is not competitive. Regulations on the application of electronic supply,
acceptance of bidders to submit bids online or electronically; (5) mandate the
use of electronic assessment to avoid direct human intervention in the
assessment decision; (6) stipulate the authority and procedures for resolving the
contractor's petitions, the authority to cancel the contractor selection result.
9. Solutions to prevent competition restriction and unfair competition in
construction bidding include: (1) amending and supplementing the provisions