Ensuring fairness, transparency, and effective competition is one of the fundamental principles governing public procurement under Vietnamese law. In practice, it is not uncommon for two or more bidders to achieve the same highest evaluation result during the bid assessment process, giving rise to legal questions regarding the determination of the successful bidder and the handling of such situations. To address these issues, the Law on Bidding 2023 and its implementing regulations establish a comprehensive legal framework governing bidder ranking, the application of tie-breaking criteria, the division of procurement packages, and the circumstances under which a procurement package may be cancelled, even where multiple bidders have been evaluated as equally qualified. Understanding these legal provisions is essential for investors, procuring entities, and contractors to ensure compliance with Vietnamese procurement law and to minimize legal risks throughout the contractor selection process.
1. Legal Basis for Ranking Bidders Where Multiple Bidders Receive the Highest Evaluation
The legal basis governing the ranking of bidders and the handling of situations where multiple bidders are equally ranked is provided under Clause 18, Article 140 of Decree No. 214/2025/ND-CP.
Accordingly, where two or more bidders are ranked equally as the highest-ranked bidder following the evaluation process, the procuring entity must apply the prescribed order of priority to determine the successful bidder. Such priorities include giving preference to women-owned small and medium-sized enterprises (SMEs), bidders obtaining a higher technical score, bidders offering a lower bid price, bidders headquartered in the locality where the procurement package is implemented, or bidders employing a larger number of war invalids, persons with disabilities, ethnic minorities, and female employees. If a successful bidder still cannot be determined after applying these criteria, the bidders may be requested to submit a revised bid price or participate in an online quotation process under the simplified procedure.
2. May the Investor Divide the Procurement Package Among Multiple Bidders if Several Bidders Are Highly Ranked?
Where multiple bidders are highly ranked, the investor is not permitted to arbitrarily divide the procurement package among several contractors if such division is intended to facilitate direct appointment or restrict competition.
Pursuant to Point (l), Clause 6, Article 16 of the Law on Bidding 2023, splitting a project or procurement estimate into multiple procurement packages for the purpose of applying direct contracting or limiting bidder participation constitutes a prohibited act, as it undermines the principles of fairness and transparency in public procurement.
Accordingly, a procurement package may only be divided where justified by technical requirements, project scale, the nature of the works, or project management needs. Such division must not be used to influence the contractor selection outcome or provide an unfair advantage to certain bidders.
3. Under What Circumstances May a Procurement Package Be Cancelled Even if Multiple Highly-Ranked Bidders Participate?
Even where multiple bidders have been evaluated as highly qualified, the procurement package may still be cancelled if any of the circumstances prescribed in Clause 1, Article 17 of the Law on Bidding 2023 (as supplemented by Clause 5, Article 4 of the 2024 Law amending the Law on Planning, the Law on Investment, the Law on Investment under the Public-Private Partnership Model, and the Law on Bidding) arise, including:
- Point (a), Clause 1, Article 17: All bids or proposals fail to satisfy the requirements set out in the bidding documents or request for proposals.
- Point (b), Clause 1, Article 17 (as amended by Point (a), Clause 11, Article 1 of the 2025 Law amending the Law on Bidding, the Law on Investment under the Public-Private Partnership Model, the Customs Law, the Law on Value Added Tax, the Law on Export and Import Duties, the Law on Investment, the Law on Public Investment, and the Law on Management and Use of Public Assets): There is a change in the investment objectives or scope under the approved investment decision, resulting in changes to the volume of work or the published evaluation criteria.
- Point (c), Clause 1, Article 17: The bidding documents fail to comply with the Law on Bidding or other relevant laws, resulting in the selected bidder being incapable of fulfilling the procurement package requirements.
- Point (dd), Clause 1, Article 17: An organization or individual other than the successful bidder commits a prohibited act under Article 16 of the Law on Bidding 2023, thereby affecting the contractor selection results.
- Point (e), Clause 1, Article 17: The procurement package is cancelled in accordance with Clause 5, Article 42 of the Law on Bidding 2023.
In conclusion, Vietnamese procurement law provides a clear legal mechanism for resolving situations where multiple bidders are equally ranked following the evaluation process. Rather than allowing discretionary decision-making, the legislation establishes objective priority criteria and procedural safeguards to ensure that contractor selection remains fair, transparent, and competitive. At the same time, the existence of multiple highly-ranked bidders does not preclude the cancellation of a procurement package where statutory grounds are met, including material changes to the project, non-compliance with bidding regulations, or prohibited acts affecting the integrity of the procurement process. Accordingly, strict adherence to the applicable legal framework is essential for all parties involved to ensure the legality, transparency, and effectiveness of public procurement activities in Vietnam.
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Dinh Phuong Thao