Nghị định 257/2025/NĐ-CP hướng dẫn thực hiện dự án áp dụng loại hợp đồng Xây dựng Chuyển giao

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:

G_GTSS = G_GT - G_GT x M_UD %

Where:

G_GTSS: is the value of state budget payment of the preferred investor for comparison and ranking;

G_GT: is the value of state budget payment proposed in the investor’s bid eligible for preference;

M_UD: 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:

M_GTSS = M_GT + M_GT x M_UD%

Where:

M_GTSS: is the rate of incremental payment to the state budget of the preferred investor for comparison and ranking;

M_GT: is the rate of incremental payment to the state budget proposed in the preferred investor’s bid;

M_UD: 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