27-08-26 MTParners
From 21 August 2026, businesses with equity ties to the procuring entity or the project’s consulting unit may be disqualified as early as the validity-review stage — while high-tech and innovative enterprises gain a meaningful new scoring advantage.
The Government has issued Decree No. 274/2026/ND-CP detailing certain provisions and implementation measures of the Law on Bidding regarding investor selection for business investment projects. The Decree takes effect on 21 August 2026, replacing Decree 23/2024/ND-CP and Decree 115/2024/ND-CP. Its most notable feature is a quantified set of “competition assurance” criteria based on specific equity-ownership thresholds, together with an incentive mechanism granting up to a 5% bonus in bid evaluation scores for investors applying high technology, technology transfer, and innovation.
Under Clause 3, Article 5 of Decree 274/2026/ND-CP, an investor is considered legally and financially independent from the competent authority, the procuring entity, or the entity inviting expressions of interest only when it does not hold more than 50% of the shares, voting shares, or contributed capital of the other party. For consortiums, the Decree sets out a formula for determining ownership ratios to prevent capital contributions from being artificially split to circumvent the rule.
More strictly, Clause 4, Article 5 provides that an investor and its consulting contractor may not both be owned above 30% by the same organization or individual. This is a significant new point for conglomerates operating a multi-company structure: if a single member company participates in the project’s advisory work, the entire corporate group could be excluded from investor selection unless ownership structures are carefully reviewed before submitting a bid.
Clause 5, Article 5 provides that a parent company, a subsidiary, or a consortium between a parent company and its subsidiaries may participate in only one project registration dossier or one bid dossier. In addition, an investor and a consulting unit may not have a parent–subsidiary relationship from the time the invitation for expressions of interest or the invitation for bids is issued. This provision aims to prevent a group of commonly controlled companies from participating jointly in the same bidding process, which would undermine genuine competition — a regulatory approach already common in many jurisdictions.
The Decree also allows flexibility for certain special cases: under Clause 7, Article 5, projects applying investor designation (Clause 2a, Article 34 of the Law on Bidding) or investor selection under special circumstances (Article 34a of the Law on Bidding) are not required to satisfy the competition-assurance conditions described above.
Alongside tighter competition-assurance rules, Article 6 of the Decree opens new opportunities for technology-capable enterprises. Investors offering solutions involving advanced technology, high technology, environmentally friendly technology, or best available techniques (for projects with potential adverse environmental impact) receive a 5% bonus in bid evaluation.
Investors committing to transfer high or strategic technology receive a 2% incentive; science and technology enterprises, innovative start-ups, innovation centers, and high-tech or strategic-technology enterprises receive a 5% incentive; foreign investors committing to transfer technology to domestic partners receive a 2% incentive. These incentives, however, are not granted automatically: under Clause 2, Article 6, investors must submit full documentation proving the technology application, lawful right to use the technology, or technology-transfer documents. After winning the bid, investors must fulfil the commitments stated in the bid dossier and the project contract (Clause 4, Article 6); failure to do so may result in contractual sanctions and penalties under the law.
For conglomerates operating multi-company structures, reviewing ownership structures and relationships between member companies and the project’s consulting unit is now a mandatory step before submitting a dossier — a single error in determining ownership relationships could render a dossier invalid at the very first stage of evaluation. Conversely, high-tech enterprises and innovative start-ups gain genuine additional competitive room through the scoring-incentive mechanism, rather than relying solely on financial capacity or project experience as before.
Enterprises planning to participate in investor-selection bidding should: (1) review cross-ownership ratios among the investor, the consulting unit, and the procuring authority against the 50% and 30% thresholds as early as the dossier-preparation stage; (2) examine parent–subsidiary relationships across the entire corporate ecosystem before deciding which legal entity will submit the bid; (3) prepare complete documentation proving technological capability in order to qualify for scoring incentives; and (4) assess the ability to fulfil technology-transfer commitments after winning the bid, since these are now contractual obligations backed by sanctions, not merely formal pledges.
MT & Partners Law Firm, with a team of experienced lawyers in bidding, investment, and corporate law, stands ready to assist with bid-dossier review, competition-assurance assessment, and strategic advice on leveraging the incentives under Decree 274/2026/ND-CP. Contact hotline 0987140772 or email info@mtpartners.vn for consultation.
(*) This article is for reference only and does not replace specific legal advice.
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