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, n
Trang 1GRADUATE ACADEMY OF SOCIAL SCIENCES
-
NGUYEN HUU MANH
ENSURING COMPETITION IN CONSTRUCTION BIDDING
Trang 2Supervisors:: 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
Trang 3Construction 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 above-mentioned 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
Trang 42 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
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;
Trang 5- 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
Trang 6barriers 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 anti-competition 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
Trang 7construction 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 anti-competitive 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
Trang 8competition 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
Trang 9Chapter 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
Trang 102.1.4 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
Trang 11environment 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
Trang 12activities, 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 competitive 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
Trang 13anti-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