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MINISTRY OF
INDUSTRY AND TRADE
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SOCIALIST REPUBLIC
OF VIETNAM
Independence – Freedom – Happiness
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No.:
38/2015/TT-BCT
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Hanoi, October
30, 2015
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CIRCULAR
DETAILING
CERTAIN CONTENTS OF THE INVESTMENT IN THE FORM OF PUBLIC-PRIVATE PARTNERSHIP
UNDER THE AUTHORITY OF THE MINISTRY OF INDUSTRY AND TRADE
Pursuant to the Government’s Decree No.
95/2012/ND-CP dated November 12, 2012 defining functions, tasks, powers and organizational
structure of the Ministry of Industry and Trade;
Pursuant to the Government’s Decree No.
15/2015/ND-CP dated February 14, 2015 on investment in the form of
public-private partnership;
Pursuant to the Government’s Decree No.
30/2015/ND-CP dated March 17, 2015 guiding the implementation of the Law on
bidding with respect to investor selection;
At the request of the Director General of the
Planning Department,
The Minister of Industry and Trade promulgates
detailed regulations on certain contents of the investment in the form of
public-private partnership under the authority of the Ministry of Industry and
Trade.
Chapter I
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Article 1. Scope and regulated
entities
1. Scope
This Circular provides for detailed regulations on
investment fields, procedures for performing and supervising investment
projects in the form of public-private partnership (referred to as PPP) under
the authority of the Ministry of Industry and Trade.
Thermo-power plant projects which are invested
under BOT contracts shall not be governed by this Circular.
2. Regulated entities
This Circular is applicable to entities that
participate in or are involved in PPP investment activities.
Article 2. Interpretation of
terms
In this Circular, these terms are construed as
follows:
1. Sector-managing unit is
functioned to assist the Minister of Industry and Trade in performing state
management functions; or refers to one of non-business units serving the
Ministry of Industry and Trade’s state management functions regulated in
Article 3 of the Government’s Decree No. 95/2012/ND-CP dated November 12, 2012
defining functions, tasks, powers and organizational structure of the Ministry
of Industry and Trade.
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a) Projects proposed by the Ministry of Industry
and Trade: The proposing unit shall be the sector-managing unit or the public
non-business unit affiliated to the Ministry of Industry and Trade.
b) Projects proposed by investors: The proposing
unit shall be the investor of such project.
3. The unit preparing the
feasibility study report is one of the following units:
a) Projects proposed by the Ministry of Industry
and Trade: Units preparing the feasibility study reports are
sector-managing units or public non-business units affiliated to the Ministry
of Industry and Trade;
b) Projects proposed by investors: The unit
preparing the feasibility study report shall be the investor of such project.
4. Unit in charge of
appraising the project proposal and feasibility study report (referred to as
the appraising unit) is appointed by the Ministry of Industry and Trade to
direct the appraisal or the appraisal council.
Article 3. Investment fields
under the authority of the Ministry of Industry and Trade
The projects on the construction, improvement,
operation, business and management of infrastructural works, the supply of
public equipment and utilities in the following fields:
1. Power plants (including
projects on using new energy and renewable energy); transmission lines.
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a) Markets;
b) Shopping malls, supermarkets;
c) Exhibition and fair centers;
d) Logistic centers;
dd) Warehouses.
3. Other projects as regulated
in Clause 1 Article 4 of the Government’s Decree No. 15/2015/ND-CP dated February
14, 2015 on investment in the form of public-private partnership (referred to
as the No. 15/2015/ND-CP) under the authority of the Ministry of Industry and
Trade.
Article 4. Responsibilities of
the PPP authority
1. Establish and disseminate
policies and legislative documents on PPP investment.
2. Prepare and perform plans
on infrastructure investment and development, supply of equipment or utilities
under PPP contracts.
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4. Carry out the appraisal of
project proposals and feasibility study reports.
5. Announce approved project
proposals.
6. Prepare plans on the State
funding for the execution of investment projects.
7. Monitor, assess and
summarize the execution of projects.
8. Other duties as decided by
the Ministry of Industry and Trade.
Article 5. Preparing plans on
the State funding for the execution of investment projects
1. Managing authorities and
non-business units which are affiliated to the Ministry of Industry and Trade
shall prepare plans on the State funding for the execution of investment
projects as regulated in Article 5 and Article 13 of the Decree No.
15/2015/ND-CP, and send them to the PPP authority to submit to the Minister of
Industry and Trade for aggregating in 5-year public investment plan of the
whole branch.
2. Based on the assigned
mid-term public investment plan and results of the approval of feasibility
study reports or project proposals (as for group-C projects), managing
authorities and non-business units affiliated to the Ministry of Industry and
Trade shall prepare plans on the State funding for the execution of investment
projects and send them to the PPP authority ahead of July 15 of every year for
aggregating in the public investment plan of the following year.
3. The Minister of Industry
and Trade shall promulgate the list of investment projects and the State
funding for each project on the basis of the decision on approving 5-year and
annual plans on investment projects funded by state budget.
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1. The Minister of Industry
and Trade shall make decision on the establishment of the appraisal council to
carry out the appraisal of project proposals and feasibility study reports of
group-A and group-B investment projects.
2. The Minister of Industry
and Trade shall make decision on appointing members of the appraisal council
and the standing unit of the appraisal council depending on the project’s
nature and scale.
Chapter II
PROJECT ESTABLISHMENT,
APPRAISAL, APPROVAL AND ANNOUCEMENT
Section 1. PROJECTS PROPOSED BY
THE MINSITRY OF INDUSTRY AND TRADE
Article 7. Requirements for a
project to be selected
PPP projects proposed by the Ministry of Industry
and Trade in investment fields regulated in Article 3 of this Circular must meet
the requirements in Clause 1 Article 15 of the Decree No.15/2015/ND-CP. To be
specific, they must:
1. Conform to plans for the
development of the industry and trade sector that are approved by the competent
authorities;
2. Be able to attract and
access commercial capital, technology and managerial experience from investors;
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4. Have the total investment capital
of at least VND 20 billion, except for projects under the O&M contract.
Article 8. Project proposal
documents
There are 02 sets of project proposal documents,
each of which consists of:
1. Written request for the
appraisal of project proposal;
2. The project proposal, the
content of which must conform to regulations in Clause 2 and Clause 3 Article
16 of the Decree No. 15/2015/ND-CP.
Article 9. Appraisal and
approval for project proposal
1. The proposing unit shall
send project proposal documents to the PPP authority.
2. Within 03 working days upon
receipt of project proposal documents, the PPP authority shall check documents
and request the proposing unit to supplement them if they are insufficient or
invalid.
3. Within 20 working days upon
receipt of valid project proposal documents, the appraising unit shall carry
out the appraisal of the project proposal.
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4. Within 05 working days from
the date on which appraisal results are made, the PPP authority shall submit
the project proposal to the Minister of Industry and Trade for approval. If the
appraisal results show that the project proposal does not meet requirements for
being approved, the PPP authority shall specify reason in writing and send it
to the proposing unit.
Section 2. PROJECTS PROPOSED BY
INVESTORS
Article 10. Requirements on
project selection
PPP projects proposed by investors in the
investment fields regulated in Article 3 of this Circular must meet the requirements
in Clause 2 Article 20 of the Decree No.15/2015/ND-CP. To be specific:
1. Conform to plans for the
development of the industry and trade sector that are approved by the competent
authorities;
2. Have capacity for
attracting and acquiring the commercial capital, technology and managerial
experience from investors;
3. Have ability to provide
good quality products and services that satisfy consumer’s needs in a constant
and stable manner;
4. Have the total investment
capital of at least VND 20 billion, except for projects under the O&M
contract.
5. The investor that is a
state-owned enterprise must establish a joint venture with another enterprise
to propose the project.
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There are 02 sets of project proposal documents,
each of which consists of:
1. The application for the
appraisal of project proposal;
2. The project proposal, the
content of which must conform to regulations in Clause 2 and Clause 3 Article
16 of the Government’s Decree No. 15/2015/ND-CP.
3. Documents certifying legal personality, capacity and
experience of the investor;
4. Certificate of experience
in the execution of similar projects (if any);
5. Other necessary documents
for explaining the project proposal (if any).
Article 12. Appraisal and approval
for project proposal
1. Group-C project proposals
a) The investor shall send the project proposal
documents to the PPP authority.
b) Within 05 working days upon receipt of project proposal
documents, the PPP authority shall check documents and request the investor to
supplement them if they are insufficient or invalid.
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d) Within 05 working days from the date on which
the appraisal results are made, the PPP authority shall submit the project
proposal to the Minister of Industry and Trade for approval. If the appraisal
results show that the project proposal does not meet requirements for being
approved, the PPP authority shall specify reason in writing and send it to the
investor who submits such project proposal.
2. Group-A or group-B project
proposal:
a) The investor shall send the project proposal
documents to the PPP authority.
b) Within 05 working days, the PPP authority shall
check documents and request the investor to supplement them if they are
insufficient or invalid.
c) Within 20 working days upon receipt of valid
project proposal documents, the appraising unit shall carry out the appraisal
of project proposal.
d) Within 05 working days from the date on which
the appraisal results are made, the PPP authority shall submit the project
proposal to the Minister of Industry and Trade for approval. If the appraisal
results show that the project proposal does not meet requirements for being
approved, the PPP authority shall specify reason in writing and send it to the
investor who submits such project proposal.
Article 13. Project announcement
1. Within 07 working days from
the date on which the project proposals are approved, the PPP authority shall
summarize and announce approved project proposals on the website of the
Ministry of Industry and Trade and send notice to the Ministry of Planning and
Investment for posting on the national electronic procurement system.
2. Announced information of
the project shall comply with regulations in Clause 2 Article 18 of the Decree
No.15/2015/ND-CP.
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ESTABLISHMENT, APPRAISAL
AND APPROVAL FOR FEASIBILITY STUDY REPORTS
Article 14. Establishment of
feasibility study reports
1. With regard to the project
proposed by the Ministry of Industry and Trade, the proposing unit shall, on
the basis of the decision on approving the project proposal, prepare or
contract a qualified and experienced consultant to prepare the feasibility
study report of such project.
Procedures for selecting the consultant to prepare
the feasibility study report shall comply with the law on bidding.
2. With regard to the project
proposed by the investor, the Ministry of Industry and Trade shall, on the
basis of the decision on approving the project proposal, appoint the investor
to prepare the feasibility study report.
The agreement made between the Ministry of Industry
and Trade and the investor in charge of preparing the feasibility study report
shall comply with regulations in Clause 3 Article 24 of the Decree
No.15/2015/ND-CP.
Article 15. Contents of
feasibility study reports
1. Basic contents of a feasibility
study report shall comply with regulations in Article 25 of the Decree
No.15/2015/ND-CP.
2. Relevant parties may carry
out the agreement on other contents on the basis of the project’s objectives
and nature provided that such agreed contents must be in conformity with the
Decree No.15/2015/ND-CP, this Circular and other laws.
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There are 02 sets of the application for the
appraisal of the feasibility study report, each of which consists of:
1. The application form for
the appraisal of feasibility study report;
2. The feasibility study
report;
3. The copy of the report on
the appraisal of project proposal;
4. The copy of the decision on
approval for project proposal;
5. Relevant legal documents.
Article 17. Appraisal and
approval for feasibility study reports of group-A and group-B projects
1. The unit preparing the
feasibility study report shall submit the application for the appraisal of feasibility
study report to the PPP authority.
2. Within 05 working days upon
receipt of the application for the appraisal of feasibility study report, the
PPP authority shall check such application and request the unit preparing the
feasibility study report to supplement it if it is insufficient or invalid.
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4. Within 30 working days from
the date on which the appraisal council is established, the appraisal council
shall carry out the appraisal of feasibility study report of group-A project.
Within 20 working days from the date on which the
appraisal council is established, the appraisal council shall carry out the
appraisal of feasibility study report of group-B project.
With regard to the construction project, the
standing unit of the appraisal council shall ask for opinions of regulatory
bodies on the fundamental design in conformity with the law on construction.
5. Contents of the appraisal
shall comply with regulations in Clause 3 Article 26 of the Decree
No.15/2015/ND-CP.
6. Within 02 working days from
the date on which the appraisal result of feasibility study report is made, the
standing unit of the appraisal council shall report to the Minister of Industry
and Trade for approval.
Article 18. Adjustment to the
feasibility study report
1. The feasibility study
report shall be adjusted upon one of cases regulated in Clause 1 Article 28 of
the Decree No.15/2015/ND-CP;
2. Procedures for the
appraisal and approval for adjusted feasibility study report shall comply with
regulations in Article 17 of this Circular.
Chapter IV
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Article 19. Establishment,
appraisal and approval for prequalification documents and prequalification
results
1. The sector-managing unit
shall prepare or contract a qualified and experienced consultant to prepare
prequalification documents for selecting the investor as regulated by the law
on bidding.
2. Contents of
prequalification documents are regulated in Clause 1 Article 17 of the
Government’s Decree No. 30/2015/ND-CP dated March 17, 2015 guiding the
implementation of the Law on bidding with respect to investor selection (referred
to as the Decree No. 30/2015/ND-CP).
3. The feasibility study
report appraising unit shall carry out the appraisal of prequalification
documents in conformity with regulations in Clause 1 Article 82 of the Decree
No.30/2015/ND-CP.
4. The feasibility study
report appraising unit shall verify prequalification results in conformity with
regulations in Point b Clause 3 Article 84 of the Decree No. 30/2015/ND-CP.
Article 20. Investor selection
plan
1. The unit preparing the
feasibility study report shall make or contract a qualified and experienced
consultant to make the investor selection plan and submit it to the Minister of
Industry and Trade for approval.
2. The application for
approval
There are 02 sets of the application for approval,
each of which consists of:
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b) Enclosed documents.
Article 21. Appraisal and
approval for the investor selection plan
1. The feasibility study
report appraising unit shall carry out the appraisal of the investor selection
plan in conformity with regulations in Point a Clause 1 Article 24 of the
Decree No. 30/2015/ND-CP;
2. The appraising unit shall
submit the investor selection plan to the Minister of Industry and Trade for
approval as prescribed in Point a Clause 3 Article 84 of the Decree No.
30/2015/ND-CP.
Article 22. Establishment,
appraisal and approval for bidding documents/request for proposals
1. The unit preparing the
feasibility study report shall make or contract a qualified and experienced
consultant to make bidding documents/request for proposals.
2. The appraising unit shall
carry out the appraisal of bidding documents/request for proposals and submit
it to the Minister of Industry and Trade for approval.
3. Approving the list of
investors that satisfy technical requirements
a) The appraising unit shall carry out the
appraisal of the list of investors that satisfy technical requirements as
regulated in Point b Clause 3 Article 83 of the Decree No. 30/2015/ND-CP;
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Article 23. Appraisal and
approval for the investor selection result
The appraising unit shall carry out the appraisal
of the investor selection result as regulated in Point b Clause 4 Article 83 of
the Decree No. 30/2015/ND-CP, and make the report on appraisal result as
regulated in Point c Clause 4 Article 83 of the Decree No. 30/2015/ND-CP.
Chapter V
CONCLUSION OF INVESTMENT
AGREEMENTS AND PROJECT CONTRACTS
Article 24. Contract negotiation
with selected investor
1. Based on the investor
selection result as regulated in Article 23 of this Circular, the
sector-managing unit shall take the prime responsibility and coordinate with
the PPP authority and relevant units to negotiate and revise the project
contract with the selected investor.
2. Contents of the contract
negotiation and revision shall comply with regulations in Clause 2 Article 43
of the Decree No.30/2015/ND-CP.
Article 25. Contract contents
Basic contents of the project contract shall comply
with regulations in Article 32 of the Decree No. 15/2015/ND-CP.
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Documents enclosed to the project contract,
including its appendixes, papers and documents certifying or detailing contents
of the project contract, are an integral parts of the project contract.
Article 26. Conclusion of
investment agreements
After ending the negotiation on contents of the
project contract, the sector-managing unit shall make the report on the
negotiation result, enclosed with the draft of the investment agreement.
Contents of the investment agreement shall conform to Clause 2 Article 30 of
the Decree No. 15/2015/ND-CP and the Minister of Industry and Trade shall
decide the conclusion of the investment agreement. The Ministry of Industry and
Trade shall organize the conclusion of the investment agreement with the main
investor.
Article 27. Conclusion of
project contracts
The conclusion of group-B and group-C project
contracts shall be executed under the authorization of the Minister of Industry
and Trade.
Chapter VI
PROJECT EXECUTION
SUPERVISION
Article 28. Contract
performance supervision
1. As for group-B and group-C
projects, the Minister of Industry and Trade shall authorize its affiliated units
to supervise the performance of project contracts. The authorized unit may hire
a qualified consultant to support it in the supervision of project contract
performance in case of need. Costs for hiring consultant are specified in the
project contract.
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Article 29. Project quality
supervision
1. The supervision of the
quality of PPP investment projects shall abide by Clause 1 Article 48 of the
Decree No. 15/2015/ND-CP and relevant legislative documents.
2. The PPP authority shall propose
and submit the Minister of Industry and Trade for approving the annual plan on
project quality supervision and members of the supervision team.
3. The Ministry of Industry
and Trade shall authorize the PPP authority to organize the inspection of the
quality of a part of the works, works items or all of the works when there is
any suspicion of the quality or any request of regulatory bodies.
Chapter VII
REPORTING REGULATIONS
Article 30. Reports made by
investors
1. The investor executing PPP
project must prepare periodical and unscheduled reports as regulated by the
law, and reports regulated in Clause 2 and Clause 3 of this Article.
2. Periodical reports
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b) Investors executing PPP projects must prepare
and submit reports on supervision and assessment of investment projects to the
Ministry of Industry and Trade in accordance with the law on investment
supervision and assessment.
c) Reporting contents must specify the progress of
works up to the reporting time (disbursement progress, progress of the
execution of investment items, etc.); unsolved issues and solutions thereof;
expected execution plans.
3. Unscheduled reports
a) In case of force majeure such as acts of god or
conflagration, the investor must promptly report to the Ministry of Industry
and Trade and competent regulatory bodies.
b) The investor must submit reports, provide
documents or explanation about issues concerning his activities at the request
of competent regulatory bodies.
Article 31. Reports made by
sector-managing units and non-business units
The sector-managing unit must prepare and submit 6
months reports and annual reports, ahead of July 10 and February 10
respectively, to the PPP authority on the execution and investment capital
figures of projects of which the sector-managing unit is the main investor.
Chapter VIII
IMPLEMENTATION
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1. The Planning Department
that is the PPP authority of the Ministry of Industry and Trade shall monitor,
expedite and inspect the implementation of this Circular.
2. Heads of organizations
shall organize the implementation of this Circular and suggest types of PPP
projects in conformity with their operation.
Article 33. Effect
1. This Circular shall take
effect as of December 15, 2015.
2. Entities involved in PPP
investment projects should promptly report difficulties that arise during the
implementation of this Circular to the Ministry of Industry and Trade (via
Planning Department) for guidance./.
FOR MINISTER
DEPUTY MINISTER
Cao Quoc Hung