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THE
GOVERNMENT
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THE
SOCIALIST REPUBLIC OF VIETNAM
Independence - Freedom - Happiness
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No. 257/2025/ND-CP
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Hanoi,
October 8, 2025
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DECREE
ON ELABORATION OF THE IMPLEMENTATION OF PROJECTS UNDER THE
BUILD-TRANSFER (BT) CONTRACT
Pursuant to the Law on
Organization of the Government No. 63/2025/QH15;
Pursuant to the Law on
Investment in the form of public-private partnership No. 64/2020/QH14;
Pursuant to the Law on
amendments to a number of articles of the Law on Planning, the Law on
Investment, the Law on Investment in the form of public-private partnership,
and the Law on Bidding No. 57/2024/QH15;
Pursuant to the Law on
amendments to a number of Articles of the Law on Bidding, the Law on Investment
in the form of public-private partnership, the Law on Customs, 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
Property No. 90/2025/QH15;
At the request of the Minister
of Finance;
The Government hereby
promulgates this Decree on elaboration of the implementation of projects under
the Build-Transfer (BT) contract.
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GENERAL PROVISIONS
Article 1.
Scope
1. This Decree elaborates a number of
articles of the Law on Investment in the form of public-private partnership
regarding the implementation of projects under the Build-Transfer (BT) contract
(BT projects), including:
a) Article 11 on procedures for
implementation of BT projects;
b) Article 42 on methods and
criteria for evaluation of bidding documents;
c) Point a Clause 2a Article 45 on
BT projects with land fund payment;
d) Point b Clause 2a Article 45 on
BT projects with state budget payment.
2. This Decree shall not apply to
BT projects that do not require payment as prescribed in Point c Clause 2a
Article 45 of the Law on Investment in the form of public-private partnership.
3. The financial management
mechanism for projects and post-construction loan interest regarding BT
projects with land fund payment shall comply with the Government’s regulations
on financial management mechanism for public-private partnership investment
projects and on payment and final settlement mechanism applicable to projects
under the BT contract.
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This Decree applies to
organizations and individuals participating in or related to the implementation
of BT projects specified in Clause 1 Article 1 of this Decree.
Article 3.
Interpretation of terms
For the purpose of this Decree, the
following terms shall be construed as follows:
1. Land fund for payment means
a parcel or area of land meeting the conditions specified in Clause 2 Article 6
of this Decree, determined by a competent authority for payment to the investor
or project enterprise (if any) implementing a BT project with land fund
payment.
2. Counterpart project means
one or more projects implemented by the investor or project enterprise on the
land fund for payment in accordance with the BT project contract.
3. Actual difference in value means
the difference between the value of the land fund for payment at the time of
payment and the final settled value of the BT project works, or the value of
accepted work volume, or the value of completed work items of the BT project.
4. Rate of incremental payment
to the state budget means the rate proposed by the investor to determine
the incremental value payable to the state budget with respect to the land fund
for payment.
5. Incremental value payable to
the state budget means the value determined by multiplying the rate of
incremental payment to the state budget proposed by the investor by the actual
difference in value.
6. Auctioned land fund or public
property means the parcel, area of land, land fund, or public property
identified by a competent authority in accordance with the law on land and the
law on management and use of public property for auction to generate state
budget revenue for payment to the investor implementing the BT project.
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Article 4.
Procedures for implementation of BT projects
1. For BT projects under the
competence of the National Assembly to decide on investment guidelines, the
procedures shall be as follows:
a) Preparation and appraisal of the
pre-feasibility study report, submission to the National Assembly for decision
on investment guidelines;
b) Preparation and appraisal of the
feasibility study report, project approval;
c) Selection of investor;
preparation, appraisal, and approval of the technical design (in case of the
three-stage design process) or the construction drawing design (in case of the
two-stage design process) and cost estimate; signing and implementation of the
project contract.
2. For BT projects with state
budget payment or BT projects combining land fund payment and state budget
payment, except for those specified in Clauses 1 and 4 of this Article, the
procedures shall be as follows:
a) Preparation and appraisal of the
proposal report on investment guidelines, and issuance of the decision on
investment guidelines;
b) Preparation and appraisal of the
feasibility study report or the construction investment economic-technical
report in case the BT project is subject to preparation of such report; project
approval;
c) Selection of investor;
preparation, appraisal, and approval of the technical design (in case of the
three-stage design process) or the construction drawing design (in case of the
two-stage design process) and cost estimate; signing and implementation of the
project contract.
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a) Preparation and appraisal of the
feasibility study report or the construction investment economic-technical
report in case the BT project is subject to preparation of such report; project
approval;
b) Selection of investor; preparation,
appraisal, and approval of the technical design (in case of the three-stage
design process) or the construction drawing design (in case of the two-stage
design process) and cost estimate; signing and implementation of the project
contract.
4. For BT projects with land fund
payment proposed by investors and subject to investor appointment under the Law
on Investment in the form of public-private partnership, except for those
specified in Clause 1 of this Article, the procedures shall be as follows:
a) The investor shall propose the
project, prepare the feasibility study report accompanied by the capacity
dossier and draft contract;
b) The competent authority shall
organize the appraisal of the feasibility study report, approve the project and
the result of investor appointment, the draft contract, and the technical
design (in case of the three-stage design process) or the construction drawing
design (in case of the two-stage design process) and cost estimate;
c) Signing and implementation of
the project contract.
5. The competent authority may
carry out procedures for appraisal and approval of the technical design (in
case of the three-stage design process) or the construction drawing design (in
case of the two-stage design process) and cost estimate of BT project works
specified in Point c Clause 1, Point c Clause 2, Point b Clause 3, and Point b
Clause 4 of this Article concurrently with the investor selection process,
provided that the BT project contract is signed on the basis of approved designs
and cost estimates.
6. In case BT projects specified in
Clauses 3 and 4 of this Article require procedures for decision on investment
guidelines as a basis for decision on the policy of conversion of rice land use
purposes in accordance with the law on land, or the policy of conversion of
forest land use purposes in accordance with the law on forestry, and other
procedures as prescribed by relevant laws, the preparation and appraisal of the
proposal report on investment guidelines and issuance of the decision on
investment guidelines shall comply with Point a Clause 2 of this Article. The
competence to decide on investment guidelines for such BT projects shall comply
with regulations applicable to BT projects with state budget payment.
Chapter II
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Article 5.
Preparation and appraisal of the pre-feasibility study report, proposal report
on investment guidelines, and decision on investment guidelines
1. For projects under the
competence of the National Assembly to decide on investment guidelines, the
order and procedures for preparation and appraisal of the pre-feasibility study
report, proposal report on investment guidelines, and decision on investment
guidelines for BT projects shall comply with Articles 13 and 14 of the Law on
Investment in the form of public-private partnership and the Government’s
regulations on order and procedures for appraisal of national important
projects.
2. For projects other than those
specified in Clause 1 of this Article, the order and procedures for preparation
and appraisal of the pre-feasibility study report, proposal report on
investment guidelines, and decision on investment guidelines for BT projects
shall comply with the Government’s Decree on elaboration of a number of
Articles of the Law on Investment in the form of public-private partnership.
3. The pre-feasibility study report
and proposal report on investment guidelines for BT projects with land fund
payment shall include the following main contents:
a) Necessity of investment;
advantages of investment in the form of public-private partnership; type of
Build-Transfer (BT) project contract; preliminary environmental impact
assessment in accordance with the law on environmental protection, similar to
that required for public investment projects (the proposal report on investment
guidelines is not required to include this content);
b) Objectives; scale and location
of the project execution; construction duration, execution schedule of the BT
project works, and term of the project contract; land use demand and demand for
other resources for the implementation of the BT project works (if any),
excluding the land use demand proposed for payment to the investor;
c) Preliminary design plan in
accordance with the law on construction; preliminary explanation of technical
and technological solutions; preliminary division of the project into component
projects (if any);
d) Preliminary assessment of the
socio-economic efficiency of the project; impact of project execution on the
community and residents within the project area;
dd) Preliminary total investment
amount of the BT project works;
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4. The pre-feasibility study report
and proposal report on investment guidelines for BT projects with state budget
payment shall include the contents specified in Points a, b, c, d, and dd
Clause 3 of this Article and the following:
a) Expected method and value of
payment in case of payment from public investment capital sources;
b) Location and area of the
auctioned land fund or public property proposed for auction in case of payment
from proceeds obtained from auction in accordance with Article 7 of this
Decree.
5. For BT projects combining land
fund payment and state budget payment, the competent authority shall determine
the work items paid by land fund and those paid by state budget. The
pre-feasibility study report and proposal report on investment guidelines shall
include the contents specified in Clauses 3 and 4 of this Article.
6. The appraisal of the
pre-feasibility study report and proposal report on investment guidelines for
BT projects shall include the following main contents:
a) Conditions for project selection
for investment in the form of PPP as prescribed in Clause 1 Article 14 of the
Law on Investment in the form of public-private partnership;
b) Basis for preparation of the
pre-feasibility study report and proposal report on investment guidelines in
accordance with the Government’s Decree on elaboration of a number of Articles
of the Law on Investment in the form of public-private partnership;
c) Requirements for technical and
technological solutions and quality standards of BT project works. The
appraisal of the preliminary design, technical and technological solutions, and
quality standards shall comply with the law on construction and other relevant
laws;
d) Preliminary total investment
amount of the BT project works determined in accordance with the law on
construction on the basis of the technical and technological solutions and
quality standards of BT project works;
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e) Payment method to the investor
for BT projects with land fund payment, including: location, area, and
estimated value of the land fund for payment
7. The decision on investment
guidelines for BT projects shall include the following principal contents:
a) Project title; name of the
competent authority; name of the investor proposing the project;
b) Objectives; expected scale,
location, construction duration of the BT project works, and term of the
project contract;
c) Preliminary total investment
amount of the BT project works;
d) Expected type of BT project
contract and corresponding payment method.
8. In case BT project works are
implemented within the territory of two or more province-level administrative
divisions, the Province-level People’s Committees of the localities where the
project is implemented shall consult and reach agreement, and report to the
Province-level People’s Councils of each locality for consideration and
decision on the investment and construction plan of BT project works, including
the following contents:
a) Preparation of a single project
consisting of multiple component projects, or separation into independent
projects implemented in each locality;
b) Scale and implementation
location;
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d) Responsibilities of each
locality regarding compensation, support, resettlement, and balancing and
allocating the state budget or land fund payment for the works or work items
under their management;
dd) Competent authority of the
project or component projects.
9. For BT projects under the
management of ministries, central regulatory agencies, other agencies, and
Province-level People’s Committees, these agencies shall reach agreement on the
contents specified in Clause 8 of this Article. The Province-level People’s
Committee shall report to the Province-level People’s Council on the agreed
contents with ministries, central regulatory agencies, and other agencies
before carrying out procedures for decision on investment guidelines.
Article 6. Land
fund proposed for payment to the investor implementing BT projects with land
fund payment
1. During the preparation of the
pre-feasibility study report and proposal report on investment guidelines, the
competent authority or the investor proposing the project shall coordinate with
the province-level land administration authority to determine the land fund for
payment to the investor implementing the BT project with land fund payment in
accordance with the conditions and principles specified in Clauses 2 and 3 of
this Article.
2. The land fund for payment to the
investor implementing BT projects with land fund payment must fully meet the
following conditions:
a) The land fund falls under cases
of land recovery or land under the management of state authorities or
organizations in accordance with Article 217 of the Land Law (excluding working
offices of regulatory agencies and facilities of public sector entities
recovered or assigned by the State to land development organizations for
management), and a combination of such land funds.
In case the land fund for payment
includes land parcels with land managed by state authorities or organizations,
the State shall recover the entire area to allocate or lease land without land
use right auction and without bidding for investor selection in projects
involving land use;
b) It conforms to the planning
approved by a competent authority in accordance with the law on planning and
relevant laws.
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a) The value of the land fund
proposed for payment must be equivalent to the total investment amount of the
BT project works, or differ therefrom by not more than ±10%;
b) Where the value of the land fund
proposed for payment to the investor is less than 90% of the total investment
amount of the BT project works, the competent authority shall consider applying
a BT contract combining land fund payment and state budget payment (public
investment capital) to ensure that the total value of the land fund and public
investment capital proposed for payment is equivalent to the total investment
amount of the BT project works;
c) In cases where immediate
implementation of the BT project works is necessary to ensure connection of
technical and social infrastructure in accordance with the planning, to meet the
efficiency of management, operation, and utilization of the works as directed
by resolutions, conclusions, or instructions of the Central Committee of the
Communist Party, the Politburo, the Secretariat, key leaders of the Party and
the State, resolutions of the Government, decisions, directives, official
notices of the Government leaders, resolutions of the Standing Committee of the
Provincial Party Committee, or resolutions of the Province-level People’s
Council, the competent authority may consider determining the land fund
proposed for payment to the investor with a value exceeding 110% of the total
investment amount of the BT project works.
d) The value of the land fund
proposed for payment shall be determined as follows:
For the area of the land fund
falling under the case of State land allocation:
The value of the land fund proposed
for payment equals (=) the chargeable land area multiplied by (x) the land
price according to the new land use purpose as prescribed in the annual land
price list promulgated under the law on land;
For the area of the land fund
falling under the case of State land lease:
The value of the land fund proposed
for payment equals (=) the chargeable land area multiplied by (x) the land
price according to the new land use purpose as prescribed in the annual land
price list promulgated under the law on land;
dd) Where compensation, support,
and resettlement costs for the land fund proposed for payment are determined, the
value of the land fund proposed for payment shall be determined based on the
value specified at Point dd of this Clause minus (-) the compensation, support,
and resettlement costs for the land fund proposed for payment. The actual value
of the land fund for payment shall be implemented in accordance with Article 19
of this Decree;
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g) The value of the land fund
proposed for payment shall be determined in the pre-feasibility study report
and the proposal report on investment guidelines in conformity with the annual
land price list approved at the time of preparing these documents.
4. Where it is expected to use the
land fund under the management of State authorities or organizations as
prescribed in Article 217 of the Land Law for payment to the investor
implementing a BT project, the Province-level People’s Committee shall assign
specialized agencies and subordinate agencies/units to prepare a list of the
land fund proposed for payment for submission to the Province-level People’s
Council for approval.
Article 7. Land
fund and public property proposed for auction for payment to the investor
implementing BT projects with state budget payment
1. During the preparation of the
pre-feasibility study report and the proposal report on investment guidelines,
the competent authority or the investor proposing the project shall coordinate
with the specialized agency in charge of public property management to identify
the land fund and public property proposed for auction for payment to the
investor.
2. The auction of land use rights
and public property for payment to the investor shall comply with the law on
land, the law on management and use of public property, and the law on property
auction. Proceeds obtained from the auction of land use rights and public
property shall be paid into the state budget for payment to the investor
implementing the BT project and shall not be aggregated into the medium-term
public investment plan.
Article 8.
Preparation and appraisal of the feasibility study report, construction
investment economic-technical report, and project approval
1. The procedures for preparation
and appraisal of the feasibility study report, the construction investment
economic-technical report, and project approval for BT projects shall comply
with Article 21 of the Law on Investment in the form of public-private
partnership and the Government’s Decree on elaboration of a number of Articles
of the Law on Investment in the form of public-private partnership.
2. The feasibility study report and
construction investment economic-technical report of BT projects with land fund
payment shall include the following main contents:
a) Necessity of investment;
advantages of investment in the form of public-private partnership; type of BT
project contract;
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c) Objectives; scale; location; land
use demand and demand for other resources for the implementation of the BT
project works (if any), excluding the land use demand proposed for payment to
the investor;
d) Schedule; construction duration
of the BT project works and the term of the project contract;
dd) Explanation of requirements for
technical and technological solutions and quality standards of BT project
works; design dossiers in accordance with the law on construction and relevant
laws; interrelation among component projects (if any);
e) Total investment amount of the
BT project works;
g) Payment method to the investor,
in which the specific location, area, and estimated value of the land fund for
payment shall be determined in accordance with Article 6 of this Decree. In
which, the value of the land fund proposed for payment shall be determined
according to the corresponding principles specified in Clause 3 Article 6 of
this Decree;
h) Socio-economic efficiency of the
project; risk analysis and risk management measures of the project; investment
incentives and guarantees (if any);
i) Expected plan for project
organization and implementation, including: form of investor selection and
expected time for investor selection, and name of the procuring entity.
3. The feasibility study report and
construction investment economic-technical report of BT projects with state
budget payment shall include the contents specified at Points a, b, c, d, dd,
e, h, and i Clause 2 of this Article and the following contents:
a) Method and value of payment in case
of payment from public investment capital sources;
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4. For BT projects combining land
fund payment and state budget payment, the competent authority shall determine
the work items paid by land fund and those paid by state budget; the
feasibility study report and the construction investment economic-technical
report shall include the contents specified in Clauses 2 and 3 of this Article.
5. The appraisal of the feasibility
study report and the construction investment economic-technical report for BT
projects shall include the following main contents:
a) Legal bases and necessity of
investment;
b) Requirements for technical and
technological solutions and quality standards of BT project works. The
appraisal of design dossiers, technical and technological solutions, and
quality standards shall comply with the law on construction and other relevant
laws;
c) Total investment amount of the
BT project works determined in accordance with the law on construction on the
basis of the technical and technological solutions and quality standards of BT
project works; post-construction loan interest and reasonable profit of the
investor for BT projects with state budget payment;
d) Payment method to the investor,
including: funding sources and ability to balance public investment capital as
prescribed in the Government’s Decree on elaboration and implementation of a
number of Articles of the Law on Public Investment (for payment from public
investment capital sources); location and area of the auctioned land fund or
public property proposed for auction (for payment from proceeds obtained from
auction);
dd) Socio-economic efficiency.
6. For BT projects for which
procedures for decision on investment guidelines have been carried out, where the
contents specified at Points a, b, c, and g Clause 2 and Points a and b Clause
3 of this Article do not change compared to the pre-feasibility study report
and the proposal report on investment guidelines, re-appraisal shall not be
required.
7. The decision on project approval
for BT projects shall include the following principal contents:
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b) Objectives; scale; location;
construction duration of the BT project works and the term of the project
contract; land use demand and demand for other resources;
c) Total investment amount of the
BT project works;
d) Type of BT project contract and
corresponding payment method;
dd) Form and expected time for
investor selection, and name of the procuring entity.
8. For BT projects not subject to
decision on investment guidelines implemented within the territory of two or
more province-level administrative divisions, or projects under the management
of ministries, central regulatory agencies, other agencies, and Province-level
People’s Committees, prior to carrying out procedures for project approval as
prescribed in Clauses 1, 2, 3, 4, 5, 6 and 7 of this Article, such agencies and
Province-level People’s Committees shall consult and reach agreement on project
execution in accordance with the corresponding provisions in Clause 8 or Clause
9 Article 5 of this Decree.
9. For BT projects with land fund
payment as prescribed in Clause 4 Article 4 of this Decree, the investor shall
prepare a project proposal dossier comprising the feasibility study report as
prescribed in Clause 2 of this Article, together with documents on legal
status, capacity dossier, and draft contract, which shall serve as the basis
for the competent authority to organize appraisal and approval of the project
concurrently with the approval of the result of investor appointment (name of
the investor proposed for appointment).
10. For projects specified in
Clauses 1 and 2 Article 4 of this Decree, during the preparation of the
feasibility study report and the construction investment economic-technical
report, where the land fund proposed for payment or the land fund and public
property proposed for auction change compared to the contents approved in the
decision on investment guidelines, the following shall apply:
a) Where the land fund proposed for
payment changes in boundary or area due to adjustment of the general planning,
subdivision planning, or detailed planning (if any), affecting the value of the
land fund proposed for payment but still ensuring compliance with the
conditions specified in Clause 2 Article 6 of this Decree, the competent
authority shall update such value in the feasibility study report or the
construction investment economic-technical report of the BT project without
adjusting the investment guidelines;
b) Where the land fund and public
property proposed for auction change in boundary or area due to adjustment of
the general planning, subdivision planning, or detailed planning (if any), or
due to the plan for rearrangement and handling of public property, the
competent authority shall update the changes in the feasibility study report or
the construction investment economic-technical report of the BT project without
adjusting the investment guidelines;
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Chapter III
INVESTOR SELECTION
Article 9.
Forms of investor selection
1. Forms of investor selection for
implementation of BT projects include:
a) Open bidding as prescribed in
Article 37 of the Law on Investment in the form of public-private partnership;
b) Competitive negotiation as
prescribed in Article 38 of the Law on Investment in the form of public-private
partnership;
c) Investor appointment as prescribed
in Article 39 of the Law on Investment in the form of public-private
partnership and Clause 3 of this Article;
d) Investor selection under special
circumstances as prescribed in Article 40 of the Law on Investment in the form
of public-private partnership and Clause 4 of this Article.
2. The competent authority shall
decide on the application of one of the investor selection methods specified in
Clause 1 of this Article, ensuring the selection of an investor with sufficient
capacity to implement the BT project meeting the requirements on schedule,
quality, and investment efficiency.
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a) Projects required for immediate
implementation to prevent, remedy, or promptly address consequences caused by
natural disasters, fires, unexpected incidents, accidents, catastrophes, or
other force-majeure events;
b) National important projects
applying investor appointment under a resolution of the National Assembly;
c) Railway projects as prescribed
by the law on railways;
d) Projects subject to investor
appointment under the laws governing sectoral or field management;
dd) Construction or infrastructure
projects required to be expedited for national or provincial-level
anniversaries or events;
e) Other cases where investor
appointment is necessary to meet requirements on project schedule, quality, and
investment efficiency.
4. Projects applying investor
selection under special circumstances as prescribed in Clause 1 Article 40 of the
Law on Investment in the form of public-private partnership include:
a) Projects required to ensure
national interests or fulfill national political tasks as directed by
resolutions, conclusions, or instructions of the Central Committee of the
Communist Party, the Politburo, the Secretariat, or the key leaders of the
Party and the State;
b) Strategic projects, key or
national important investment projects in the fields of science, technology,
and innovation requiring order placement or task assignment;
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d) Projects required for immediate
implementation to ensure connectivity and synchronization of technical infrastructure
among the works within the project, as directed by resolutions of the National
Assembly, resolutions of the Government, decisions, directives, official
notices of the Government leaders, to meet the requirements of effective,
continuous, and synchronized management, exploitation, and operation of the
works;
dd) Projects in sectors or fields
serving the objectives of maintaining social order and safety in accordance
with the law on public investment;
e) Offshore wind power projects as
prescribed by the law on electricity, where the application of investor
selection methods specified at Points a, b, and c Clause 1 of this Article
would not meet the requirements for project execution.
g) Other projects with specific
conditions, where the application of investor selection methods specified at
Points a, b, and c Clause 1 of this Article would not meet the requirements for
project execution.
Article 10.
Procedures for investor selection for implementation of BT projects
1. The procedures for open bidding
and competitive negotiation
shall comply with the Government’s
Decree on elaboration of a number of Articles of the Law on Investment in the
form of public-private partnership.
2. The procedures for ordinary
investor appointment applicable to BT projects prepared by regulatory agencies,
or BT projects with state budget payment proposed by investors, or BT projects
combining land fund payment and state budget payment proposed by investors,
shall be carried out as follows:
a) Preparation of request for proposals:
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The competent authority or the
procuring entity (where authorized to approve the request for proposals) shall
not be required to appraise the request for proposals; where appraisal is
deemed necessary, it shall be carried out in accordance with the Government’s
Decree on elaboration of a number of Articles of the Law on Investment in the
form of public-private partnership;
b) Approval of request for
proposals:
The competent authority or the
procuring entity shall approve the request for proposals, in which the investor
proposed for appointment shall be identified, and shall send the request for
proposals to such investor;
c) Preparation and submission of
proposals:
The investor proposed for
appointment shall prepare and submit its proposal in accordance with the
requirements of the request for proposals;
d) Evaluation of proposals:
The procuring entity shall evaluate
the proposals in accordance with the evaluation methods and criteria specified
in the request for proposals. For projects proposed by investors, the
investor’s proposal shall be evaluated on a pass-fail basis, based on criteria
relating to capacity and financial-commercial aspects.
During the evaluation process, the
investor may clarify, amend, or supplement its proposal;
dd) Appraisal, approval, and
disclosure of investor appointment results:
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Approval of investor appointment
results shall comply with the Government’s Decree on elaboration of a number of
Articles of the Law on Investment in the form of public-private partnership,
without requiring approval of a list of technically qualified investors or
ranking of investors.
Disclosure of investor appointment
results shall comply with the Government’s Decree on elaboration of a number of
Articles of the Law on Investment in the form of public-private partnership;
e) Negotiation, finalization,
signing, and disclosure of the contract:
The competent authority, the procuring
entity, and the investor shall organize negotiation, finalization, and signing
of the BT project contract in accordance with the Government’s Decree on
elaboration of a number of Articles of the Law on Investment in the form of
public-private partnership, ensuring that the BT project contract is signed
based on the technical design (in the case of a three-stage design process) or
the construction drawing design (in the case of a two-stage design process) and
the approved cost estimate as prescribed in Clause 5 Article 4 of this Decree.
Disclosure of information on the BT
project contract shall comply with the Government’s Decree on elaboration of a
number of Articles of the Law on Investment in the form of public-private
partnership.
3. The procedures for simplified
investor appointment applicable to BT projects with land fund payment proposed
by investors as prescribed in Clause 4 Article 4 of this Decree shall be
carried out as follows:
a) After the project approval
decision, the investor appointment result, and the draft contract as prescribed
in Clause 9 Article 8 of this Decree have been issued, the procuring entity
shall develop requirements concerning investor capacity and
financial-commercial aspects;
b) Based on such capacity and
financial-commercial requirements, the procuring entity shall organize
negotiation and finalization of the contract, including the following contents:
updating information on legal status, ability to mobilize equity capital and
loan financing of the investor; the rate of incremental payment to the state
budget; assurance of project schedule, quality, and investment efficiency;
rights, obligations, and responsibilities of the contracting parties in project
execution; and other necessary contents (if any);
c) The competent authority, the
procuring entity, and the investor shall organize negotiation, finalization,
and signing of the BT project contract in accordance with the Government’s
Decree on elaboration of a number of Articles of the Law on Investment in the
form of public-private partnership, ensuring that the BT project contract is
signed based on the technical design (in the case of a three-stage design
process) or the construction drawing design (in the case of a two-stage design
process) and the approved cost estimate as prescribed in Clause 5 Article 4 of
this Decree.
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a) During the preparation of the
pre-feasibility study report or the proposal report on investment guidelines,
the project preparation unit or the investor proposing the project shall
propose the application of investor selection under special circumstances as
prescribed in Clause 4 Article 9 of this Decree and propose the investor for
project execution (if any);
b) For projects under the
competence of the National Assembly or Province-level People’s Councils to
decide on investment guidelines, after the project investment guidelines have
been decided, the competent authority shall assign a subordinate agency,
organization, or unit (hereinafter referred to as the specialized agency) to
review and assess the financial capacity and project execution conditions of
the investor in accordance with the approved investment guidelines. The
contents of assessment are specified at Point d of this Clause. Based on the
specialized agency’s assessment report, the competent authority shall decide
the investor selected under special circumstances;
c) For projects under the
competence of Ministers, Heads of central regulatory agencies, other agencies,
or Province-level People’s Committees to decide on investment guidelines, the
competent authority shall assign the BT project appraisal unit to review and
assess the investor’s financial capacity and project execution conditions as
prescribed at Point d of this Clause during the appraisal of the
pre-feasibility study report or the proposal report on investment guidelines.
The Minister, Head of the central regulatory agency, other agency, or
Province-level People’s Committee shall decide on investment guidelines
concurrently with approval of the investor selected under special
circumstances.
d) Review of the investor’s
financial capacity and project execution conditions as prescribed at Points b
and c of this Clause shall include: ability to mobilize equity capital and
arrange loan financing as prescribed at Points a and b Clause 1 Article 12 of
this Decree; ability to implement the construction, operation, business,
exploitation, and management plan for the works in line with the project
investment guidelines, meeting requirements on schedule, quality, investment
efficiency, or other specific project conditions; and other requirements as
determined by the competent authority;
dd) The investor selected as
prescribed at Points b and c of this Clause shall prepare the feasibility study
report and the construction investment economic-technical report together with
the capacity dossier and draft contract. The competent authority shall organize
appraisal of the feasibility study report and approve the project together with
the draft contract;
e) Based on the project approval
decision and the draft contract as prescribed at Point dd of this Clause, the
competent authority, the procuring entity, and the investor shall organize
negotiation, finalization, and signing of the BT project contract in accordance
with the Government’s Decree on elaboration of a number of Articles of the Law
on Investment in the form of public-private partnership, ensuring that the BT
project contract is signed on the basis of the technical design (in the case of
the three-stage design process) or the construction drawing design (in the case
of the two-stage design process) and the approved cost estimate as prescribed
in Clause 5 Article 4 of this Decree.
The contents of negotiation and
finalization of the contract with the selected investor shall include: contents
regarding the value of state budget payment (for BT projects with state budget payment),
the rate of incremental payment to the state budget (for BT projects with land
fund payment), the value of state budget payment combined with the rate of
incremental payment to the state budget (for BT projects with combined
payment), assurance of requirements on schedule, quality, and investment
efficiency of the BT project; negotiation of project-related contents to serve
as a basis for establishing provisions on rights, obligations, and
responsibilities in the contract; and other necessary contents (if any);
5. Procedures for investor
selection under special circumstances for projects not subject to decision on
investment guidelines shall be carried out as follows:
a) During the preparation of the
feasibility study report or the construction investment economic-technical
report, the project preparation unit or the investor proposing the project
shall propose the application of investor selection under special circumstances
as prescribed in Clause 4 Article 9 of this Decree and propose the investor to
implement the project (if any) together with the draft contract;
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c) The competent authority shall
approve the project concurrently with approving the investor selected under
special circumstances and the draft contract;
d) The procuring entity shall
organize negotiation and finalization of the contract with the selected
investor in accordance with Point e Clause 4 of this Article;
dd) Based on the result of
negotiation and finalization of the contract, the BT project contract shall be
signed with the investor or the project enterprise (if any).
6. For projects applying the
payment methods prescribed in Clause 4 or Clause 5 Article 16 of this Decree,
the investor shall not be required to prove the ability to arrange financing as
prescribed at Point b Clause 3 or Point d Clause 4 or Point b Clause 5 of this
Article but must provide a commitment to submit a commercial bank guarantee
with a guaranteed value at least equal to the value of the BT works as stated
in the decision approving the cost estimate of the BT works, to secure the
obligation to implement the BT project works as committed under Point d Clause
4 Article 16 of this Decree.
7. For projects specified at Points
a, c, and d Clause 4 Article 9 of this Decree, in the decision on project
approval, the competent authority may assign the investor to organize the
implementation of investment and construction of the BT project works
concurrently with the process of negotiation, finalization, and signing of the
contract.
8. For projects for which
investment guidelines have been decided or project approval has been issued but
specific conditions prescribed in Clause 4 Article 9 of this Decree
subsequently arise, the competent authority shall decide on the application of
investor selection under special circumstances and approve the investor
selected in accordance with Points b, d, dd (except where the project has
already been approved by the competent authority), e, and g Clause 4 of this
Article.
9. Where the procedures prescribed
in Clauses 2, 3, 4, 5, 6, 7, and 8 of this Article are applied but do not meet
the requirements for project execution, during project preparation, the project
preparation unit shall develop a plan for investor selection under special
circumstances and submit it to the competent level or the competent authority
for concurrent approval in the decision on investment guidelines or the
decision on project approval, ensuring the selection of an investor with
sufficient capacity to implement the BT project meeting requirements on
schedule, quality, and investment efficiency.
10. Where negotiation and
finalization of the contract with the investor is unsuccessful, the procuring
entity shall report to the competent authority for consideration and decision
on bid cancellation in accordance with Point a Clause 1 Article 34 of the Law
on Investment in the form of public-private partnership.
Article 11.
Contents of the bidding documents
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a) Instructions to investors;
b) Bidding data sheet;
c) Contents for checking and
evaluating the validity of bids;
d) Methods and criteria for
evaluation of bids regarding capacity, technical aspects, and financial-commercial
aspects as prescribed in Article 12 of this Decree (for BT projects with state
budget payment) and Article 13 of this Decree (for BT projects with land fund
payment);
dd) Bidding and bid forms;
e) Information and requirements for
implementation of the BT project according to the contents in the decision on
project approval and the feasibility study report or the construction
investment economic-technical report. In which, the value of the land fund
proposed for payment shall be updated in the bidding documents in accordance
with Clause 5 of this Article;
g) Draft contract and contract
forms.
2. The bidding documents shall not
provide evaluation criteria on experience in similar projects, but must specify
the principle of handling cases where an investor submits documents proving
experience in similar projects for the purpose of comparison and ranking of
investors.
Where sectoral or field management
laws require the investor to have experience in similar projects, the procuring
entity and the expert team shall specify the evaluation criteria on experience
in similar projects in the bidding documents in accordance with such sectoral
or field management laws.
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4. For BT projects combining land
fund payment and state budget payment, the bidding documents must provide
evaluation criteria and methods for the items paid by state budget and the
items paid by land fund in accordance with Articles 12 and 13 of this Decree.
The procuring entity shall be responsible for prescribing score weights for
each item corresponding to the percentage (%) value of the item paid by state budget
and the item paid by land fund in the total investment amount of the BT project
works in the decision on BT project approval for the purpose of composite
scoring and comparison and ranking of investors.
5. During the preparation of the
bidding documents, where the land fund proposed for payment or the land fund
and public property proposed for auction changes compared to the contents
approved in the decision on project approval, the following shall apply:
a) Where the land fund proposed for
payment changes in boundary or area due to adjustment of the general planning,
subdivision planning, or detailed planning (if any), affecting the value of the
land fund proposed for payment but still ensuring compliance with the
conditions specified in Clause 2 Article 6 of this Decree, the competent
authority shall assign the procuring entity to update such value in the bidding
documents without adjusting the project;
b) Where the land fund and public
property proposed for auction change in boundary or area due to adjustment of
the general planning, subdivision planning, or detailed planning (if any), or
due to the plan for rearrangement and handling of public property, the
competent authority shall assign the procuring entity to update the changed
information in the bidding documents without adjusting the project;
c) Where adjustment of the general
planning, subdivision planning, or detailed planning (if any) leads to a change
in the location of the land fund proposed for payment or the location of the
land fund and public property proposed for auction, the competent authority
shall carry out procedures for project adjustment to serve as a basis for
approving the value of the land fund proposed for payment or updating
information on the land fund and public property proposed for auction in the
bidding documents;
d) The value of the land fund
proposed for payment specified at Points a and c of this Clause shall be
determined in conformity with the annual land price list approved at the time
of preparing the bidding documents and according to the principles prescribed
at Points d, dd, and e Clause 3 Article 6 of this Decree.
Article 12.
Methods and criteria for evaluation of bids for BT projects with state budget
payment
1. Evaluation of investor capacity
shall be conducted on a pass-fail basis according to the following criteria:
a) Ability to mobilize equity
capital determined on the basis of the total investment amount of the BT
project works. In case of a joint venture, the joint venture’s equity capital
equals the aggregate equity of the joint venture members, and each member shall
satisfy the requirement corresponding to its equity contribution under the
joint venture agreement. The lead member shall contribute at least 30% equity,
and each joint venture member shall contribute at least 15%;
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c) History of disputes and
complaints related to projects that the investor has implemented or is
implementing;
d) History of suspension or
termination of the investor’s investment activities in the province or
centrally-affiliated city where the project is implemented (if any).
2. Technical evaluation shall be conducted
using the scoring method as prescribed in Clause 3 of this Article or the
pass-fail method as prescribed in Clause 4 of this Article, based on the
following criteria:
a) Criteria on quality, capacity,
and efficiency of the BT project works, including: requirements for conformity
of the technical and technological solutions proposed by the investor with the
project’s scale, capacity, total investment amount, timeline, schedule, and
phasing of construction in line with planning approved by competent authorities
under the laws on planning, construction, sectoral/field management, and
relevant laws; and requirements on quality, indicators, standards, technical
regulations, and norms of the project works under sectoral/field management
laws and relevant laws;
b) Environmental and safety
criteria, including: requirements for environmental protection and safety plans
that the investor must ensure in accordance with the law on environmental
protection; requirements for assessment of negative environmental impacts and
remedial measures;
c) Other technical criteria (if
necessary).
When preparing the bidding
documents, the procuring entity and the expert team shall develop detailed
technical evaluation criteria based on the criteria specified at this Point,
appropriate to each specific project.
3. When formulating technical
evaluation criteria under the scoring method using a 100-point or 1,000-point
scale, the minimum and maximum scores must be specified for each general
criterion and detailed criterion; the minimum score to be deemed as meeting the
requirement shall not be lower than 70% of the total technical score, and the
score for each technical requirement must not be lower than 60% of that
requirement’s maximum score.
4. When formulating technical
evaluation criteria under the pass-fail method, the required level for each
requirement must be defined. For general evaluation criteria, only pass-fail
indicators shall be used. For basic detailed criteria within a general
criterion, only pass-fail indicators shall be used; for non-basic detailed
criteria within a general criterion, in addition to pass-fail indicators, an
acceptable indicator may be applied but shall not exceed 30% of the total
number of detailed criteria within that general criterion. A general criterion
shall be deemed pass when all basic detailed criteria are assessed as pass and
the non-basic detailed criteria are assessed as pass or acceptable.
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a) Evaluation of financial-commercial
aspects shall be conducted by comparison and ranking based on the criterion of
the maximum state budget payment value for the investor. The maximum state
budget payment value equals the total investment amount of the BT project works
in the decision on project approval, the decision on approval of the adjusted
project, and other post-construction costs, including post-construction loan
interest and the investor’s reasonable profit;
b) Investors implementing BT
projects who are eligible for preferences, the levels of preference, and the
principles of applying preference in investor selection shall comply with the
Government’s Decree on elaboration of a number of Articles of the Law on
Investment in the form of public-private partnership. Preference shall be
calculated as follows:
GGTSS = GGT -
GGT x MUD %
Where:
GGTSS: is the value of
state budget payment of the preferred investor for comparison and ranking;
GGT: is the value of
state budget payment proposed in the investor’s bid eligible for preference;
MUD: is the level of
preference enjoyed by the investor.
6. After evaluation of
financial-commercial aspects, where two or more investors have equal
financial-commercial proposals, the investor with experience in similar
projects shall be ranked first.
7. An investor shall be recommended
for selection when fully meeting the following conditions:
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b) Meeting capacity requirements;
c) Meeting technical requirements;
d) Having a proposed state budget
payment value for comparison and ranking that is not higher than the maximum
value specified in the bidding documents and is the lowest.
Article 13.
Methods and criteria for evaluation of bids for BT projects with land fund
payment
1. Methods and criteria for
capacity evaluation shall comply with Clause 1 Article 12 of this Decree.
2. Methods and criteria for
technical evaluation shall comply with Clauses 2, 3, and 4 Article 12 of this
Decree.
3. Methods and criteria for
evaluation of financial-commercial aspects:
a) Evaluation of
financial-commercial aspects shall be conducted by comparison and ranking based
on the criterion of social and state benefits;
b) The criterion of social and
state benefits is the rate of incremental payment to the state budget as
prescribed at Point c of this Clause;
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d) Investors implementing BT
projects who are eligible for preferences, the levels of preference, and the
principles of applying preference in investor selection shall comply with the
Government’s Decree on elaboration of a number of Articles of the Law on
Investment in the form of public-private partnership. Preference shall be
calculated as follows:
MGTSS = MGT +
MGT x MUD%
Where:
MGTSS: is the rate of
incremental payment to the state budget of the preferred investor for
comparison and ranking;
MGT: is the rate of
incremental payment to the state budget proposed in the preferred investor’s
bid;
MUD: is the level of
preference enjoyed by the investor.
4. After evaluation of
financial-commercial aspects, where two or more investors have equal
financial-commercial proposals, the investor with experience in similar
projects shall be ranked first.
5. An investor shall be recommended
for selection when fully meeting the following conditions:
a) A valid bid;
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c) Meeting technical requirements;
d) Having the highest rate of
incremental payment to the state budget for comparison and ranking.
6. For projects applying the
payment methods prescribed in Clause 4 or Clause 5 Article 16 of this Decree, the
investor shall not be required to prove the ability to arrange financing as
prescribed in Clause 1 Article 12 of this Decree but must provide a commitment
to submit a commercial bank guarantee with a guaranteed value at least equal to
the value of the BT works as stated in the decision approving the cost estimate
of the BT works, to secure the obligation to implement the BT project works as
committed under Point d Clause 4 Article 16 of this Decree.
Chapter IV
CONTRACTS AND PAYMENT
MECHANISMS
Section 1.
CONTRACTS AND PAYMENT MECHANISMS FOR BT PROJECTS WITH STATE BUDGET PAYMENT
Article 14.
Contents of the BT project contract with state budget payment
The BT project contract with state
budget payment shall include the contents prescribed in the Government’s Decree
on elaboration of a number of Articles of the Law on Investment in the form of
public-private partnership and the following contents:
1. Bases for using public
investment capital sources already allocated in the medium-term and annual
public investment plans; state budget revenues obtained from auction of land
funds and public property that have been accounted as revenues and expenditures
and permitted by competent authorities to be used for payment to the BT
project.
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3. The schedule for completion of
work items and BT project works and transfer of the BT project works to the
competent authority.
4. Payment conditions and
responsibilities for procedures on acceptance of completed work volume, final
settlement, submission of payment request dossiers, and final settlement upon
completion of the BT project works.
5. Principles for handling cases
where any contracting party breaches commitments on construction schedule,
payment, or transfer of the BT project works, resulting in post-construction
loan interest or other arising costs (if any) in accordance with the law.
Article 15.
Payment and final settlement of the BT project contract with state budget
payment
Payment and final settlement of the
BT project contract with state budget payment shall comply with the
Government’s regulations on the financial management mechanism for
public-private partnership investment projects and on payment and final
settlement mechanism applicable to projects under the BT contract.
Section 2.
CONTRACTS AND PAYMENT MECHANISMS FOR BT PROJECTS WITH LAND FUND PAYMENT
Article 16.
Contents of the BT project contract with land fund payment
1. Except for cases specified in
Clauses 4 and 5 of this Article, the BT project contract with land fund payment
shall include the contents prescribed in the Government’s Decree on elaboration
of a number of Articles of the Law on Investment in the form of public-private
partnership and the following contents:
a) Schedule for commencement,
construction, completion, and transfer of work items and BT project works;
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c) Payment conditions and
responsibilities for procedures on acceptance of completed work volume, final
settlement, submission of payment requests and payment dossiers, and final
settlement upon completion of the BT project works;
d) Form, order, and procedures for payment of the incremental
value payable to the state budget with respect to the land fund for payment as
prescribed at Point h of this Clause;
dd) Principles for handling cases
where any contracting party breaches commitments on construction schedule,
payment, or transfer of the BT project works, resulting in post-construction
loan interest or other arising costs in accordance with relevant laws (if any);
e) Actual difference in value for
BT project contracts with one-off payment as prescribed in Clause 2 of this
Article:
Actual difference in value for the
entire land fund for payment at the time of land allocation or land lease =
Land use levy or land rent at the time of land allocation or land lease - Final
settled value of the BT project works;
g) Actual difference in value for
BT project contracts with multiple payments corresponding to the percentage (%)
of accepted work volume of BT project works or the value of completed
independent work items as prescribed in Clause 3 of this Article:
Actual difference in value for the
portion of the land fund for payment at the time of land allocation or land
lease = Land use levy or land rent for the portion of the land fund for payment
at the time of land allocation or land lease - Value corresponding to the
percentage (%) of accepted work volume of BT project works or the value of
completed independent work items;
h) The incremental value payable to
the state budget shall be determined as follows:
Incremental value payable to the
state budget at the time of land allocation or land lease = Rate of incremental
payment to the state budget under the contract × Actual difference in value with
respect to the land fund for payment at the time of land allocation or land
lease.
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2. For projects with a total
investment amount equivalent to Group-C projects under the law on public
investment, the method of one-off payment of the entire land fund for payment
shall be applied after the BT project works are completed, accepted, and
eligible for operation as prescribed by the law on construction.
3. For projects with a total
investment amount equivalent to Group-A or Group-B projects under the law on
public investment, the competent authority shall consider and decide to apply
the one-off payment method as prescribed in Clause 2 of this Article, or to
apply the method of multiple payments of the land fund for payment
corresponding to the percentage (%) of accepted work volume of BT project works
or corresponding to the value of completed independent work items.
Where multiple payments of the land
fund for payment are applied corresponding to the percentage (%) of accepted
work volume of BT project works, the parties shall agree in the contract on the
percentage (%) of accepted work volume of BT project works for each payment,
the number of installments, the payment schedule, and the boundary, location,
and area of the land fund for payment proposed for each payment corresponding
to the percentage (%) of accepted work volume of BT project works, ensuring the
payment principle prescribed at Point d Clause 1 Article 20 of this Decree.
Where multiple payments of the land
fund for payment are applied corresponding to the value of completed
independent work items, the parties shall agree in the contract on the items,
item values, number of installments, payment schedule, milestones for
completion of work items, and the boundary, location, and area of the land fund
for payment proposed for such items.
4. For independent projects with a
total investment amount of VND 20,000 billion or more, or for component
projects within a project with a total investment amount of VND 20,000 billion
or more, or for projects closely linked to national important or nationally
prioritized projects under resolutions of the National Assembly or the
Government, the competent authority may consider and decide to allocate the
entire land fund for payment at once to the investor implementing the BT
project after the signing of the project contract, in order to enable the
investor to mobilize resources to construct project works ensuring connectivity
and synchronized infrastructure utilization.
In this case, the land fund for
payment must satisfy the conditions for land allocation or land lease in
accordance with the law on land; the investor shall submit to the competent
authority a commercial bank guarantee with a guaranteed value at least equal to
the value of the BT works as stated in the decision approving the cost estimate
of the BT works; and shall ensure that the bank guarantee is effective at the
time the BT project contract becomes effective.
The competent authority shall
assign the contracting authority to negotiate and finalize the contract with
the investor according to the principal contents of PPP project contracts under
the Government’s Decree on elaboration of a number of Articles of the Law on
Investment in the form of public-private partnership, Points a, c, and d Clause
1 of this Article, and the following contents:
a) The value of the BT project
works at the time of land allocation to the investor or the project enterprise
(if any) shall be determined according to the value of the BT project works
stated in the decision approving the cost estimate of the BT works.
Determination of the value of the BT project works shall adhere to the
principle of not increasing the total investment amount throughout the entire
validity period of the BT contract. The final settled value of the BT project
works shall not exceed the value of the BT project works stated in the decision
approving the cost estimate of the BT works;
b) Where, at the time of land
allocation to the investor or the project enterprise (if any), there is a
difference between the value of the land fund and the value of the BT project
works stated in the decision approving the cost estimate of the BT works, the
difference shall be determined as follows:
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Where the value of the BT project
works stated in the decision approving the cost estimate is lower than the
value of the land fund, the investor or the project enterprise (if any) shall
pay into the state budget the difference and the incremental value payable to
the state budget as calculated under the formula prescribed at Point h Clause 1
of this Article.
Where the value of the BT project
works stated in the decision approving the cost estimate is higher than the
value of the land fund for payment, the investor or the project enterprise (if
any) shall be paid the difference (if any) at the time of final settlement of
the BT project works in accordance with Article 24 of this Decree or as
prescribed in Clause 5 Article 23 of this Decree;
c) Provide principles for handling
cases where the investor or the project enterprise (if any) fails to perform
obligations to construct, complete, and transfer the BT project works according
to the schedule committed in the signed BT contract, except for force majeure
as prescribed by civil law or where the investor or the project enterprise (if
any) is not at fault, including the principles specified at Points d, dd, and e
of this Clause;
d) The contracting authority shall
terminate the BT project contract, the competent authority shall recover the
entire land fund for payment to the investor or the project enterprise (if
any), and shall recover the entire guaranteed amount under the guarantee prescribed
in Clause 6 Article 10 or Clause 6 Article 13 of this Decree where the investor
or the project enterprise (if any) commences construction of the BT project
works more than 24 months late, or completes the BT works more than 24 months
late compared to the schedule committed in the BT contract. Where the investor
or the project enterprise (if any) has transferred the land fund for payment to
another organization or individual, the investor or the project enterprise (if
any) shall refund such organization or individual in accordance with the
agreement between them;
dd) The investor or the project
enterprise (if any) shall be subject to a contract penalty calculated at a
level equivalent to the penalty for late tax payment under the law on taxation
multiplied by the total investment amount of the BT project works as stated in
the decision approving the cost estimate of the BT project works;
e) The investor or the project
enterprise (if any) shall compensate for all damages caused by delayed
implementation or non-implementation of the BT project works as committed.
5. For projects not falling under
Clause 4 of this Article that require urgent implementation of the BT project
works to ensure connectivity of technical and social infrastructure in
conformity with the planning, and to ensure effective management, exploitation,
and operation as directed by resolutions, conclusions, or instructions of the
Central Committee of the Communist Party, the Politburo, the Secretariat, the
key leaders of the Party and the State, resolutions of the Government,
decisions, directives, official notices of opinions of the Government leaders,
resolutions of the Standing Committee of the Provincial Party Committee, or
resolutions of the Province-level People’s Council, the competent authority,
the investor, and the project enterprise (if any) may agree to apply the
payment method prescribed in Clause 4 of this Article, provided that the
investor and the project enterprise (if any) fully comply with Clause 4 of this
Article.
Article 17.
Preparation of state budget estimates for the land fund for payment
The value of the land fund proposed
for payment to the investor implementing the BT project shall be prepared and
aggregated in the annual state budget estimates and assigned in accordance with
the law on state budget.
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1. For BT project contracts with
one-off payment as prescribed in Clause 2 Article 16 of this Decree:
a) The value of the BT project
works for payment to the investor or the project enterprise (if any) is the
final settled value of the completed BT project works in accordance with the
law on construction;
b) Loan interest in the financial
plan under the BT project contract shall cease at the time of payment.
2. For BT project contracts with
multiple payments as prescribed in Clause 3 Article 16 of this Decree:
a) The value of the BT project
works for each payment shall be determined according to the percentage (%) of
accepted work volume or the value of completed BT work items as agreed in the
BT project contract;
b) Loan interest in the financial
plan of the BT project contract, for the portion of loan capital corresponding
to the accepted work volume or the value of work items that has been paid,
shall cease at each time of land fund payment. The competent authority, the
investor, and the project enterprise (if any) shall sign a contract appendix
recording the total investment amount of the BT project works after deducting
the value already paid, serving as the basis for calculating the remaining loan
interest.
3. For BT projects subject to
adjustment of investment guidelines as prescribed in Clause 1 Article 18 of the
Law on Investment in the form of public-private partnership or subject to
project adjustment as prescribed in Clause 1 Article 24 of the Law on
Investment in the form of public-private partnership, procedures for adjustment
of investment guidelines and procedures for adjustment of BT projects shall
comply with the Government’s Decree on elaboration of a number of Articles of
the Law on Investment in the form of public-private partnership. In such cases,
the contracting authority and the investor or the project enterprise (if any)
shall sign a BT project contract appendix recording the adjusted total
investment amount of the BT project works, serving as the basis for payment and
final settlement of the value of completed BT project works and for
implementing the offset mechanism as prescribed in Articles 20, 23, and 26 of
this Decree.
Article 19.
Determination of the value of the land fund for payment
1. Principles for determining the
value of the land fund for payment:
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b) The time of land fund payment is
the time when the competent authority issues the decision on land allocation or
land lease to the investor or the project enterprise (if any);
c) The value of the land fund for
payment shall be determined based on the law on land at the time the decision
on land allocation or land lease is issued and shall not change from that time,
in which:
Where the State allocates land with
collection of land use levy, the value of the land fund for payment is the land
use levy determined according to the specific land price in accordance with the
law on land.
Where the State leases land, the
value of the land fund for payment is the one-off land rent for the entire
lease term determined according to the specific land price in accordance with
the law on land.
Where the land fund for payment
includes an area eligible for exemption or reduction of land use levy or land
rent, the value of the land fund for payment to the investor shall not include
the exempted or reduced land use levy or land rent according to the law on
land.
Where the land fund for payment
includes land areas for construction of social, healthcare, education and
training, culture, physical training and sports facilities, specialized green
spaces, and other works encouraged for socialization, the investor may choose
to pay land rent annually, and the land rent for such land area shall not be
included in the value of the land fund for payment. The investor shall pay
annual land rent for such land area into the state budget in accordance with
the law on land.
d) Where the investor or the
project enterprise (if any) advances compensation, support, and resettlement
funds, such funds shall be determined according to the compensation, support,
and resettlement plan and unit prices approved by the competent regulatory agency
in accordance with the law on land. This amount shall be deducted from the
value of the land fund for payment at the time of payment as prescribed at
Point c of this Clause;
dd) In case of BT project contracts
with multiple payments, the value of the entire land fund for payment equals
the aggregate value of the land fund for each payment;
e) Based on the value of the land
fund for payment determined at Point c of this Clause, the Province-level
People’s Committee shall determine the portion of the central budget receivable
according to the proportion of land use levy and land rent under the law on
state budget, and shall balance and allocate the local budget to remit this
portion to the central budget.
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3. Where adjustment of the general
planning, subdivision planning, or detailed planning leads to a change in the
location of the land fund proposed for payment, procedures for project
adjustment shall be carried out and a contract appendix shall be signed to
agree on the changes.
Article 20.
Payment under BT project contracts with land fund payment
1. Principles of payment:
a) The investor or the project
enterprise (if any) shall be paid the entire land fund determined in the BT
project approval decision, the BT project contract, and the BT project contract
appendix (if any) for implementation of the counterpart project;
b) For BT project contracts with
one-off payment as prescribed in Clause 2 Article 16 of this Decree, the
competent authority shall pay the entire land fund to the investor or the
project enterprise (if any) after the BT project works are accepted as
completed in accordance with the law on construction; the offset mechanism for
differences shall be implemented as prescribed at Point a Clause 1 Article 23
of this Decree and the incremental value payable to the state budget shall be
remitted;
c) For BT project contracts with
multiple payments as prescribed in Clause 3 Article 16 of this Decree, the
competent authority shall pay to the investor or the project enterprise (if
any) a land area with a value equivalent to the value of the accepted work
volume of BT project works or equivalent to the value of the completed
independent work items as agreed in the BT project contract; the offset
mechanism for differences shall be implemented as prescribed at Point b Clause
1 Article 23 of this Decree and the incremental value payable to the state
budget shall be remitted for each payment;
d) For BT project contracts with
multiple payments based on the percentage (%) of accepted work volume as
prescribed in Clause 3 Article 16 of this Decree, the actual land fund for
payment for each payment (except the final payment) shall not exceed the value
of the accepted work volume for that payment;
dd) For BT project contracts with
one-off land allocation as prescribed in Clause 4 or Clause 5 Article 16 of
this Decree, the competent authority shall allocate the entire land fund to the
investor or the project enterprise (if any) after the contract is signed if the
land fund satisfies the conditions for land allocation or land lease in
accordance with the law on land; the offset mechanism for differences shall be
implemented as prescribed at Point c Clause 1 Article 23 of this Decree;
e) The method, value, conditions,
time limit, and number of installments for payment by the competent authority
to the investor or the project enterprise (if any) shall comply with the BT
project contract and the BT project contract appendix (if any).
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a) The investor or the project
enterprise (if any) shall submit a payment request accompanied by the payment
dossier prescribed in Clauses 3 and 4 of this Article to the contracting
authority;
b) The contracting authority shall
confirm the payment request and send it to the investor or the project
enterprise (if any);
c) The investor or the project
enterprise (if any) shall submit the payment request confirmed by the
contracting authority together with the payment dossier prescribed in Clause 4
of this Article to the province-level land administration authority for
procedures on land allocation or land lease and calculation of land use levy or
land rent in accordance with the law on land;
d) Based on the decision on
collection of land use levy or land rent, the contracting authority shall
determine the actual difference in value and notify the investor or the project
enterprise (if any) to implement the offset mechanism for differences as
prescribed in Article 23 of this Decree;
dd) Accounting for state budget
revenues and expenditures regarding the value of the land fund for payment
shall comply with Article 25 of this Decree;
e) Final settlement and contract
finalization of BT project contracts with land fund payment shall comply with
Article 26 of this Decree.
3. The payment request shall
include the following information:
a) Total investment amount of the
BT project works stated in the BT project contract and the BT project contract
appendix (if any);
b) Boundary, location, area, and
value of the land fund proposed for payment stated in the BT project contract
and the BT project contract appendix (if any);
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d) Value of the accepted work
volume of BT project works expressed as a percentage (%), or the value of
completed BT work items accepted (in case of a multiple-payment BT project
contract);
dd) Boundary, location, and area of
the land fund requested for payment.
4. Payment dossier:
a) Decision on BT project approval
by the competent level, decision approving the cost estimate of the BT project
works, and any adjustment decisions (if any);
b) BT project contract and contract
appendix (if any);
c) Document on acceptance of
completion of BT project works (for one-off payment BT project contracts as
prescribed in Clause 2 Article 16 of this Decree), document on acceptance of
completion of BT project work volume as a percentage (%) or document on
acceptance of completion of work items in accordance with the law on
construction (for multiple-payment BT project contracts as prescribed in Clause
3 Article 16 of this Decree), and commercial bank guarantee (for one-off land
allocation BT project contracts as prescribed in Clause 4 or Clause 5 Article
16 of this Decree);
d) Decision on land allocation or
land lease, certificate of land use rights, and land lease contract for the
land fund already paid;
dd) Other relevant documents (if
any).
Article 21.
Payment of land fund under the management of State authorities or organizations
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Article 22.
Payment of land fund in cases of land recovery under the law on land
1. Based on the 1/500 planning (if
any) or the 1/2,000 planning approved in accordance with law, and the signed BT
project contract, the Province-level People’s Committee shall assign local
functional agencies and the investor or the project enterprise (if any) to
perform the following tasks:
a) Prepare the compensation,
support, and resettlement plan for the entire land fund proposed for payment (for
one-off payment BT project contracts) or for the portion of the land fund
proposed for payment according to the schedule for completion of the BT project
work volume or according to the schedule for completion of BT work items (for
multiple-payment BT project contracts), for submission to the competent
regulatory agency for approval in accordance with the law on land;
b) The investor or the project
enterprise (if any) shall advance compensation, support, and resettlement funds
in accordance with the plan approved by the competent regulatory agency. This
amount shall comply with Point d Clause 1 Article 19 of this Decree; no loan
interest shall be calculated on this amount;
c) Organize the implementation of
compensation, support, and resettlement in accordance with the approved plan.
2. Based on the results of
compensation, support, and resettlement and the execution schedule of the BT
project works or work items, the Province-level People’s Committee shall issue
the decision on land allocation or land lease to the investor or the project
enterprise (if any) in accordance with the law on land.
Article 23.
Mechanism for offsetting differences between the value of BT project works and
the value of the land fund for payment
1. Implementation of the mechanism for
offsetting differences between the value of BT project works and the value of
the land fund for payment shall follow one of the following cases:
a) One-off offset after completion
of all works and final settlement of the value of BT project works for projects
applying the payment method prescribed in Clause 2 Article 16 of this Decree;
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c) Offset at the time of land fund
payment after the BT project contract is signed and at the time of final
settlement of the BT project works for projects applying the payment method
prescribed in Clause 4 or Clause 5 Article 16 of this Decree.
2. In case of one-off offset as
prescribed at Point a Clause 1 of this Article, the following shall apply:
a) Where the final settled value of
the BT project works is lower than the actual value of the land fund for
payment, the investor or the project enterprise (if any) shall pay the actual
difference in value into the state budget;
b) Where the final settled value of
the BT project works is higher than the actual value of the land fund for
payment, the contracting authority shall make a supplementary payment to the
investor or the project enterprise (if any) for the actual difference in value
in accordance with Article 24 of this Decree or as prescribed in Clause 5 of
this Article.
3. In case of offset on each
payment as prescribed at Point b Clause 1 of this Article, the following shall
apply:
a) Where the value of the completed
BT work item accepted is lower than the actual value of the land fund for
payment, the investor or the project enterprise (if any) shall pay the actual
difference in value into the state budget for each payment;
b) Where the value of the accepted
work volume or the value of the completed BT work item accepted is higher than
the actual value of the land fund for payment, the contracting authority shall
confirm the actual difference in value for payment upon final settlement of the
BT project works or as prescribed in Clause 5 of this Article;
c) When the BT project is completed
and settled in accordance with regulations, based on the value of the accepted
work volume, the value of completed BT work items accepted, the value of the
land fund for payment, and written confirmations of the actual difference in
value for each payment, the BT contracting parties shall determine the total
actual value of the land fund for payment and the final settled value of the BT
project works.
Where the final settled value of
the BT project works is lower than the total actual value of the land fund for
payment, the investor or the project enterprise (if any) shall pay the actual
difference in value into the state budget.
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4. In case of offset as prescribed
at Point c Clause 1 of this Article, the following shall apply:
a) At the time of land fund
payment, the investor or the project enterprise (if any) shall pay into the
state budget the difference between the value of the land fund for payment and
the value of the BT project works stated in the decision approving the cost
estimate, as prescribed at Point b Clause 4 Article 16 of this Decree;
b) At the time of final settlement
of the BT project works:
Where the final settled value of
the BT project works is lower than the value of the BT project works stated in
the decision approving the cost estimate, the investor or the project
enterprise (if any) shall additionally pay into the state budget an amount
determined as follows:
Amount additionally payable into
the state budget = Value of the BT project works stated in the decision
approving the cost estimate − Final settled value of the BT project works.
Where the final settled value of
the BT project works is higher than the value of the BT project works stated in
the decision approving the cost estimate, the investor or the project
enterprise (if any) shall bear the entire difference in accordance with the
principle prescribed at Point a Clause 4 Article 16 of this Decree.
5. At the time of payment, where
the value of the BT project works is higher than the actual value of the land
fund for payment and the competent authority makes a supplementary payment to
the investor or the project enterprise, and at the same time the investor or
the project enterprise (if any) has other land-related financial obligations
payable to the state budget within the same province-level administrative
division, the contracting authority shall report to the Province-level People’s
Committee for consideration and permission to offset the actual difference in
value against the land-related financial obligations payable by the investor or
the project enterprise.
Article 24.
Supplementary payment of the difference and of the actual difference in value
The competent authority shall make
a supplementary payment of the difference prescribed at Point b Clause 4
Article 16 of this Decree (if any), and of the actual difference in value
prescribed at Point b Clause 2 and Point c Clause 3 Article 23 of this Decree
to the investor or the project enterprise (if any) as follows:
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2. Conditions, principles for
guidance, and payment:
a) State budget funds for
supplementary payment of the difference or the actual difference shall be paid
to the investor or the project enterprise (if any) when the competent level
assigns budget estimates and investment plans as prescribed by law;
b) Guidance, payment principles,
and disbursement from the state budget shall comply with the Government’s
regulations on the financial management mechanism for public-private partnership
investment projects and on payment and final settlement mechanism applicable to
projects under the BT contract;
c) The contracting authority shall
be responsible for managing and using state budget funds assigned under budget
estimates and investment plans for proper purposes and beneficiaries; strictly
complying with current laws; taking responsibility for the difference or the
actual difference in value requested for payment; and ensuring the legality of
documents in the dossiers submitted to the State Treasury and functional
agencies.
3. Payment dossier:
Based on the competent level’s
decision on assignment of budget estimates and investment plans, the
contracting authority shall prepare and submit to the State Treasury where it
conducts transactions one (1) set of the payment dossier for payment to the
investor or the project enterprise (if any), consisting of:
a) A written confirmation by the
contracting authority of the difference or the actual difference in value to be
paid to the investor or the project enterprise (if any);
b) The decision on assignment of
budget estimates and investment plans by the competent level;
c) The payment request for the
investor or the project enterprise (if any) issued by the contracting
authority;
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4. The payment request and the fund
withdrawal order prescribed at Points c and d Clause 3 of this Article shall be
prepared according to the forms and quantities prescribed in the Government’s
regulations on the financial management mechanism for public-private
partnership investment projects and on payment and final settlement mechanism
applicable to projects under the BT contract.
Article 25.
Accounting for state budget revenues and expenditures regarding the value of
the land fund for payment
1. Accounting for state budget
revenues and expenditures regarding the value of the land fund for payment to
the investor implementing the BT project shall be carried out by recording
state budget revenues and recording state budget expenditures.
2. Where the final settled value of
the BT project works has been approved:
a) Where the actual value of the
land fund for payment is higher than the final settled value of the BT project
works, state budget revenues and expenditures shall be recorded according to the
final settled value of the BT project works. When the investor or the project
enterprise (if any) pays into the state budget the actual difference in value
between the value of the land fund and the final settled value of the BT
project works, state budget revenue shall be accounted for in accordance with
the law on state budget;
b) Where the actual value of the
land fund for payment is lower than the final settled value of the BT project
works, state budget revenue shall be recorded for the value of the land fund
for payment, and state budget expenditure shall be recorded for the final
settled value of the BT project works corresponding to the value of the land
fund for payment in accordance with the law on state budget.
3. Where the final settled value of
the BT project works has not yet been approved:
a) Record state budget revenue and
expenditure for the value of the land fund corresponding to the accepted
completion value of the independent work item as agreed in the payment
contract;
b) When the competent regulatory
agency approves the final settled value of the BT project works, record the
remaining difference of the actually paid land fund as revenue, and record the
remaining difference of the value of the BT project works as expenditure
compared with the part already recorded as revenue and expenditure. Accounting
for this difference shall comply with Points a and b Clause 2 of this Article.
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1. Final settlement of BT project
contracts with land fund payment shall comply with the Government’s Decree on
the financial management mechanism for public-private partnership investment
projects and on payment and final settlement mechanism applicable to projects
under the BT contract.
2. After completion of payment and
final settlement as prescribed in Clause 1 of this Article, the BT contracting
parties shall sign a minutes confirming completion of payment for contract
finalization of the BT project contract in accordance with law.
Section 3.
CONTRACTS AND COMBINED PAYMENT MECHANISMS FOR BT PROJECTS WITH LAND FUND AND
STATE BUDGET PAYMENT
Article 27.
Contents of BT project contracts with combined payment by land fund and state
budget
A BT project contract with combined
payment by land fund and state budget shall include the contents prescribed in
Articles 14 and 16 of this Decree.
Article 28.
Payment mechanism for BT project contracts with combined payment by land fund
and state budget
1. Payment under BT project
contracts with combined payment by land fund and state budget shall be made
separately for the project item paid by land fund and the project item paid by
state budget, in accordance with the project approval decision.
2. The payment mechanism for the project
item paid by state budget shall comply with Section 1 of this Chapter. The
payment mechanism for the project item paid by land fund shall comply with
Section 2 of this Chapter.
Chapter V
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Article 29.
Implementation of BT projects
1. The investor or the project
enterprise (if any) shall organize investment and construction of the BT
project works in accordance with the contract and the laws on construction,
land, and relevant laws.
2. The contracting authority shall
perform its responsibilities for management and supervision of the quality of
BT project works as prescribed in Clause 2 Article 59 of the Law on Investment
in the form of public-private partnership.
Article 30.
Transfer of BT project works
1. After the BT project works are
accepted and eligible for operation and use in accordance with the law on
construction, the investor or the project enterprise (if any) shall prepare a
dossier requesting transfer of the BT project works and submit it to the
competent authority. The dossier requesting transfer shall include:
a) A written request for transfer
of the BT project works;
b) A document of the competent
level approving the acceptance result and eligibility for operation and use in
accordance with the law on construction;
c) A report on compliance with the
principles and conditions for transfer and receipt of BT project works in
accordance with the Government’s Decree on elaboration of a number of Articles
of the Law on Investment in the form of public-private partnership.
2. The competent authority shall
assign the contracting authority to sign the minutes on receipt of assets and
to prepare a dossier and report to the competent level for determination of the
agency or unit tasked with management, operation, and maintenance of the BT
project works.
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3. Within 30 days from the date of
receipt of the dossier requesting transfer, the contracting authority shall
take the lead and coordinate with the specialized State asset management
agency, the financial agency, and other relevant agencies (if necessary) to
perform the following tasks:
a) Organize appraisal of the
quality, value, and condition of the BT project works in accordance with the
principles and conditions agreed in the project contract;
b) Prepare a list of assets to be
transferred;
c) Prepare a minutes identifying
any damage to the assets (if any) in order to request the investor or the
project enterprise (if any) to carry out repair and maintenance;
d) Where the BT project works
satisfy the requirements, the contracting authority shall sign the minutes on
receipt of assets.
4. No later than 90 days before the
date of acceptance of completion of the BT project works under the contractual
deadline, the contracting authority shall prepare a plan for receipt of the BT
project works, including:
a) Reporting to the competent
authority on assigning an agency or unit to manage, operate, and maintain the
BT project works in accordance with the Government’s Decree on elaboration of a
number of Articles of the Law on Investment in the form of public-private
partnership;
b) In coordination with the agency
or unit tasked with management, operation, and maintenance of the BT project
works, requesting the State Audit Office of Vietnam to audit the value of the
BT project assets, serving as a basis for recording an increase in assets in
accordance with the law on management and use of public property;
c) Other necessary contents.
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6. Where transfer of one or several
components or work items of the BT project works is required by law, the
investor or the project enterprise (if any) shall transfer such components or
work items in accordance with the corresponding provisions of this Article.
Article 31.
Principles and conditions for transfer and receipt of BT project works
1. Except where the project
contract is terminated ahead of time, BT project works shall be received only
when the investor or the project enterprise (if any) fully satisfies the
following conditions:
a) Construction of the BT project
works conforms to technical regulations and standards under the laws on
construction, sectoral/field management, and relevant laws; and complies with
the project contract;
b) The BT project works are not
pledged, mortgaged, or subject to any other ownership restrictions;
c) The BT project works fully meet
operational functions, required capacity, and quality in accordance with
technical, technological, and quality requirements specified in the project
contract at the time of transfer, and are eligible for continued use in
accordance with law.
2. The contracting authority shall
report to the competent level to assign an agency or unit with adequate
competence and resources to manage, operate, and maintain the BT project works
as prescribed in Clause 2 Article 30 of this Decree, ensuring the transfer
schedule in accordance with law and the project contract.
Article 32.
Implementation of the counterpart project
1. The procedures for investment in
the counterpart project shall comply with the laws on investment, land, and
planning, and relevant laws.
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3. The investor or the project
enterprise (if any) shall carry out procedures for approval of investment
guidelines concurrently with approval of the investor for implementation of the
counterpart project in accordance with the Law on Investment and relevant laws.
4. The investor or the project
enterprise (if any) shall implement the counterpart project in accordance with
the decision on approval of investment guidelines concurrently with investor
approval, and in compliance with the laws on investment, construction, land,
planning, sectoral and field management, and other relevant laws.
5. The competent authority shall
perform the functions of state management of investment and supervision of the
investment project or overall investment supervision as prescribed in the Law
on Investment, ensuring that the investor fully fulfills its commitments during
the implementation of the counterpart project.
Chapter VI
IMPLEMENTATION
PROVISIONS
Article 33.
Entry into force
1. This Decision shall come into
force as of the date of signing.
2. The Ministry of Finance shall
develop and promulgate the template dossier for investor selection in BT
projects.
3. Ministers, heads of
ministerial-level agencies, heads of government-attached agencies, and
chairpersons of People’s Committees of provinces and centrally-run cities,
within their respective functions and powers, shall provide guidance and
organize the implementation of this Decree.
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ON
BEHALF OF THE GOVERNMENT
PP. PRIME MINISTER
DEPUTY MINISTER
Ho Duc Phoc