Anti-bid rigging laws and their enforcement in Vietnam: critical failures and remedies

Submission note: A research proposal submitted in total fulfilment of the requirements for the degree of Master of Law (By Research) to the School of Law, College of Arts, Social Sciences and Commerce, La Trobe University, Bundoora.

This thesis seeks to answer the questions of what the critical failures of anti-bid rigging laws and their enforcement in Vietnam are, and what should be done about them. The analysis undertaken to answer these questions reveals that failures of anti-bid rigging laws and their enforcement in Vietnam result both from deficiencies in the law and law enforcement mechanisms, and also from a range of underlying socio-economic and political issues. The provisions governing bid rigging in the Competition Law, the Public Procurement Law and the Penal Code all contain shortcomings and ambiguities. More fundamentally, there are also inconsistencies and conflicts between these laws. Moreover, Vietnamese public procurement legislation and the administrative practices of public procurers unintentionally facilitate the formation and stability of bid rigging arrangements. Administrative practices, in particular, widen the scope of bid rigging. Of most concern is the practice of imposing unnecessary and excessive selection criteria leading to the limited participation of bidders. This is pervasive in Vietnam. The analysis undertaken in this thesis also reveals that Vietnamese enforcement mechanisms are as problematic as the law in contributing to failures to detect and prevent bid rigging. Of greatest concern here is the quality and nature of the connections between and cooperation amongst Vietnamese competition authorities and public procurement agencies. While such cooperation is vital to strengthen anti-bid rigging enforcement mechanisms, this thesis argues that neither Vietnamese public procurement agencies nor Vietnamese competition authorities have successfully fulfilled their roles in cooperating to fight bid rigging. The thesis also considers the context in which anti-bid rigging regulation operates. It demonstrates that challenges facing bid rigging enforcement arise not just from doctrine but also result from other issues, often closely connected with the socioeconomic and political context in Vietnam. Given identified deficiencies in the anti-bid rigging effort in Vietnam, this thesis considers law reform alternatives. It suggests a number of critical additions and modifications to the law. In relation to anti-bid rigging enforcement, enhancing the cooperation between competition and public procurement authorities, as well as developing effective tools to detect and deter bid rigging, is recommended as essential.