Thông tư 55/2023/TT-BGTVT hướng dẫn nội dung dự án đầu tư theo phương thức đối tác công tư

• Số hiệu: 55/2023/TT-BGTVT
• Loại văn bản: Thông tư
• Nơi ban hành: Bộ Giao thông vận tải
• Người ký: Nguyễn Duy Lâm
• Ngày ban hành: 31/12/2023

THE MINISTRY OF TRANSPORT OF VIETNAM --------	THE SOCIALIST REPUBLIC OF VIETNAM Independence – Freedom – Happiness ------------
No. 55/2023/TT-BGTVT	Hanoi, December 31, 2023

CIRCULAR

PROVIDING GUIDANCE ON EXPRESSWAY INVESTMENT PROJECTS IN PUBLIC-PRIVATE PARTNERSHIP FORM AND UNDER OPERATION AND MANAGEMENT CONTRACT

Pursuant to the Law on Public-Private Partnership Investment dated June 18, 2020;

Pursuant to the Law providing amendments to the Law on Public Investment, the Law on Public-Private Partnership Investment, the Investment Law, the Housing Law, the Law on Electricity, the Law on Enterprises, the Law on Excise Duties, and the Law on Civil Judgment Enforcement dated January 11, 2022;

Pursuant to the Government’s Decree No. 28/2021/ND-CP dated March 26, 2021 prescribing financial management mechanism of public-private partnership projects;

Pursuant to the Government’s Decree No. 35/2021/ND-CP dated March 29, 2021 providing guidelines for implementation of the Law on public-private partnership investment;

Pursuant to the Government’s Decree No. 56/2022/ND-CP dated August 24, 2022 defining the functions, tasks, powers and organizational structure of the Ministry of Transport of Vietnam;

At the request of the Director of Vietnam Expressway Authority;

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Chapter I

GENERAL PROVISIONS

Article 1. Scope

This Circular provides guidance on some contents on expressway investment projects in the form of public-private partnership (PPP) and under operation and management contract (hereinafter referred to as “expressway O&M project”) nationwide, including:

1. Some contents of pre-feasibility study reports and feasibility study reports;

2. Bid evaluation methods and standards;

3. Project contract form.

Article 2. Regulated entities

This Circular applies to organizations and individuals engaging in or involved in preparation of pre-feasibility study reports and feasibility study reports, investor selection and conclusion of expressway O&M project contract nationwide.

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SOME CONTENTS OF PRE-FEASIBILITY STUDY REPORTS AND FEASIBILITY STUDY REPORTS

Article 3. Socio-economic efficiency indicators

1. Socio-economic efficiency indicators of a project include: economic net present value (ENPV), benefit-cost ratio (BCR), and economic internal rate of return (EIRR). The values of these indicators shall be calculated in accordance with the provisions of Part IV Form No. 01 in Appendix II and Part IV Form No. 01 in Appendix III enclosed with the Government’s Decree No. 35/2021/ND-CP dated March 29, 2021 elaborating and providing guidance on implementation of the Law on Public-private Partnerships (“Decree No. 35/2021/ND-CP”).

2. Socio-economic benefits and costs of a project are divided into the following groups:

a) Group of costs and benefits which can be quantified and converted into monetary values, including: benefits of receipt of amounts paid to state budget; benefits of the fact that the state must not allocate annual state budget for covering costs of management, operation and maintenance of the expressway project;

b) Group of costs and benefits which can be quantified but cannot be valued, including: benefits of promotion of economic growth and creation of jobs;

c) Group of qualitative benefits, including: benefits of the fact that the state must not organize an apparatus for directly managing, operating and maintaining the expressway project.

3. The entities in charge of formulating pre-feasibility study reports and feasibility study reports may include in such reports the benefits other than those specified in clause 2 of this Article, provided that they must be suitable for specific characteristics of each project or construction work and comply with relevant laws.

4. In case there is no ground for determining benefits which can be quantified and converted into monetary values as prescribed in point a clause 2 of this Article, the entity in charge of preparing the project may evaluate socio-economic efficiency of the project based on other groups of socio-economic benefits.

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Indicators for evaluation of quality of infrastructure works/facilities provided by project enterprises are determined as follows:

1. Quality of construction items serving the operation and management tasks, built by the investor or project enterprise (if any), shall be evaluated in accordance with regulations of the Law on Construction;

2. Quality of operation and management services shall be evaluated in accordance with regulations of law on management and operation of expressway infrastructure facilities;

3. Quality of maintenance of expressway infrastructure facilities shall be evaluated in accordance with regulations of the Minister of Transport of Vietnam on criteria for supervision and acceptance of results of quality-based maintenance of road infrastructure facilities.

Article 5. Some contents of financial plan for O&M project

1. The financial plan of an O&M project complies with the provisions of Section 1 Chapter II of the Government’s Decree No. 28/2021/ND-CP dated march 26, 2021 prescribing financial management mechanism of public-private partnership projects (“Decree No. 28/2021/ND-CP”).

2. Total investment of the project complies with the provisions of Article 6 of this Circular.

3. Return on equity (ROE) of investors is determined according to ROE rates prescribed in Article 7 of this Circular.

4. Costs incurred during operation of projects are determined according to provisions of Article 8 of this Circular.

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6. Costs incurred during the life cycle of a project includes total investment of the project determined according to Article 6 of this Circular and costs incurred during operation of the project determined according to Article 8 of this Circular.

7. Minimum amount paid to state budget in pre-feasibility study report and feasibility study report is determined on the basis of calculation of the financial plan.

8. Duration of a project shall not exceed the land allocation or land lease term as prescribed by the Land Law and be calculated on the basis of:

a) Current conditions of infrastructure works/facilities of the project;

b) Engineering and technological requirements of each type of infrastructure works/facilities, periodic repair frequency or useful life of such infrastructure works/facilities as prescribed by law;

c) Financial plan and minimum amount paid to state budget.

Article 6. Preliminarily estimated total investment and total investment of a project

1. Preliminarily estimated total investment is an estimate of investment costs of a project that are made according to subject matters of the pre-feasibility study report of that project.

Preliminarily estimated total investment of a project shall be calculated on the basis of the scale, capacity or serving capacity and rate on investment (if any) of the project, or data on costs of completed or in-progress projects of same type, scale and characteristics, together with any modification of other necessary costs, including those specified in clause 2 of this Article.

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a) Costs of investment and construction of items used to serve the operation and management of the O&M project (if any) which are determined according to the Government’s regulations on management of investment construction costs and legislative documents providing detailed regulations thereon;

b) Minimum amount paid to state budget as prescribed in clause 7 Article 5 of this Circular;

c) Costs of preparation of the project incurred by the competent authority or entity in charge of preparing the PPP project; costs of appraisal organized by the PPP project appraisal council and the entity in charge of appraising the PPP project; costs of investor selection and contract conclusion incurred by the competent authority/ the procuring entity;

d) Equipment costs, including costs incurred from purchase of equipment and technological equipment, technology transfer and training costs (if any), installation, testing, calibration and associated costs;

dd) Transportation and insurance costs, taxes, fees and other associated costs;

e) Other costs elements.

Article 7. Return on equity (ROE) rates

1. Pursuant to regulations of law and based on socio-economic conditions as well as specific characteristics of the project, the entity in charge of preparing the project shall specify the proposed ROE under the financial plan in the pre-feasibility study report/feasibility study report, provided that the following conditions are met:

a) The minimum ROE shall not be smaller than the average rate of interest on 12-month term deposits paid to institutional customers quoted by at least 03 state-invested joint stock commercial banks at the nearest time within 03 months before the pre-feasibility study report/feasibility study report is prepared;

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The inflation rate is determined according to the average CPI (consumer price index) of the latest 10 years quoted by the General Statistics Office of Vietnam while excluding the years in which the CPI value changes significantly.

2. Based on socio-economic efficiency of the project as prescribed in Section IV of Form No. 01 in Appendix II on pre-feasibility study report of PPP project, and Section IV of Form No. 01 in Appendix III on feasibility study report of PPP project enclosed with the Decree No. 35/2021/ND-CP, the entity in charge of preparing the project shall propose rates of equity and borrowed fund in the financial plan which must be determined in a rational manner ensuring both socio-economic efficiency and financial efficiency of the project.

Article 8. Costs incurred during operation of a project

1. Costs incurred during operation of a project are costs of management, operation and maintenance of works.

2. Costs of management, operation and maintenance of works are determined according to the Minister of Construction of Vietnam’s guidance on determination of costs of maintenance of construction works; Minister of Transport of Vietnam’s regulations on management of operation and maintenance of road works and norms for management and regular maintenance of roads; other costs (if any) are determined according to the expressway maintenance process, and regulations of law on management, operation and maintenance of expressways.

Article 9. Plan for recovery of investment capital and profits of investors

1. The investor/project enterprise is entitled to charge prices or fees for use of expressway services in accordance with regulations of law and the signed contract.

2. Any other amounts collected as prescribed by law must be recorded by the investor/project enterprise as revenues in the financial plan.

3. The entity in charge of formulating pre-feasibility study report/ feasibility study report shall determine revenues earned from the project on a year over year basis, including basic revenues, maximum and minimum revenues.

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a) Prices and fees; payers; planned roadmap for increasing prices/fees as prescribed by the PPP law and law on fees and charges;

b) Traffic volume forecast.

Traffic volume forecast is prepared on the basis of results of traffic volume surveys conducted at the time of preparation of pre-feasibility study report/feasibility study report; data on traffic volume and participants collected from databases of organizations in charge of managing operation of roads and other available data (if any) on road routes of the project and other relevant roads in use; data on current conditions and planning for socio-economic development, transport network, static transport system, public transport system, connection planning and transport network planning; specific conditions and characteristics of the project and other relevant contents.

The entity in charge of formulating pre-feasibility study report/ feasibility study report adopts suitable traffic forecasting methods to produce specific traffic volume forecasts for high, medium and low economic growth scenarios as the basis for comparison and selection.

Article 10. Verification OF pre-feasibility study reports and feasibility study reports

Verification of pre-feasibility study report/feasibility study report of a project shall comply with the provisions of Article 15 of the Decree No. 35/2021/ND-CP. Verification consultant must ensure one or some specific contents of appraisal tasks, including financial and technical tasks, at the request of the hiring authority or entity.

Chapter III

BID EVALUATION METHODS AND STANDARDS AND O&M CONTRACT FORMS

Article 11. Rules for application of bid evaluation methods and standards

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1. Bid evaluation methods shall be adopted according to regulations on bid evaluation methods laid down in Section 3 Chapter III of the Law on Public-Private Partnerships (PPP Law), Chapter IV of the Decree No. 35/2021/ND-CP, Circular No. 09/2021/TT-BKHDT dated November 16, 2021 of the Minister of Planning and Investment of Vietnam providing guidelines for selection of investors executing PPP projects and investment projects involving land use;

2. Bid evaluation standards shall comply with Appendixes I, II and III enclosed herewith.

Bid evaluation standards must be provided in bidding documents. Bid evaluation standards included in bidding documents must be complied with during the bid evaluation.

Article 12. Rules for application of expressway O&M contract form

Any expressway O&M contract signed between a contracting authority and investor or project enterprise must be prepared using the expressway O&M contract form provided in Appendix IV enclosed herewith. During negotiation and completion of the contract, parties may propose amendments or modifications to the contract, provided that they shall cause no change in basic contents of the bid as prescribed in clause 3 Article 64 of the Decree No. 35/2021/ND-CP and comply with provisions of bidding documents, regulations of law on investment in PPP form and relevant laws.

Article 13. Expressway O&M contract

1. The O&M project enterprise must provide performance security for the project contract as prescribed in Article 48 of the PPP Law.

2. An expressway O&M contract is composed of contract agreement between the parties, general conditions of contract, special conditions of contract, and contract appendix (if any).

a) Contract agreement made between the parties

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b) General conditions of contract

General conditions of contract include general contents required for expressway O&M contracts.

c) Special conditions of contract

Special conditions of contract clarify corresponding contents of the general conditions of the expressway O&M contract of a specific project.

d) Contract appendix

An appendix to the contract shall be considered an integral part of the project contract. Where necessary, the contract may be accompanied by appendixes which elaborate its clauses and conditions.

3. Investor/project enterprise shall take charge of management, operation and maintenance of expressway infrastructure facilities in accordance with regulations of law and the signed contract. Management, operation and maintenance costs shall be covered by the investor/project enterprise, unless otherwise prescribed by laws.

Article 14. Amounts paid to state budget and payment deadline

1. Amount paid to state budget is specified in the project contract according to the decision to approve investor selection results.

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a) Where the amount paid to state budget is smaller than VND 1.000 billion, no more than 02 payments will be made by the investor/project enterprise; the first payment equaling at least 50% of the amount paid to state budget is made within 01 month from the effective date of the contract, and the second payment equaling total remaining amount to be paid to state budget is made within 03 months from the effective date of the contract;

b) Where the amount paid to state budget is greater than VND 1.000 billion, no more than 03 payments will be made by the investor/project enterprise; the first payment equaling at least 40% of the amount paid to state budget is made within 02 months from the effective date of the contract; the second payment equaling at least 30% of the amount paid to state budget is made within 04 months from the effective date of the contract; and the third payment equaling total remaining amount to be paid to state budget is made within 12 months from the effective date of the contract;

c) Amount paid to state budget and payment schedule are specifically specified in the project contract.

3. The investor/project enterprise shall disburse an amount of equity equaling at least 15% of total investment of the project in the first payment. Disbursement of equity in following payments (if any) will be subject to terms and conditions of the project contract.

4. Late payment of amount to be paid to state budget

a) The project contract must provide specific measures for dealing with the investor/project enterprise’s late payment of amount paid to state budget, including late payment penalty and other measures as prescribed by law.

b) Late payment penalty equals 0,03% of total amount unpaid per day; is charged continuously from the day following the due date of the amount paid to state budget until the date before the date on which such amount is paid to state budget in full.

5. The investor/project enterprise will be considered to have committed a serious violation in performing contractual obligations as prescribed in point d clause 2 Article 52 of the PPP Law when they fail to make full payment of amount paid to state budget within 03 months from the effective date of the contract, if this amount is smaller than VND 1.000 billion, or within 12 months from the effective date of the contract, if this amount is greater than VND 1.000 billion.

Chapter IV

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Article 15. Effect

1. This Circular comes into force from March 01, 2024.

2. If any legislative documents referred to in this Circular are amended, supplemented or superseded, the new ones shall prevail.

3. Article 1 of the Circular No. 09/2022/TT-BGTVT dated June 22, 2022 of the Minister of Transport of Vietnam providing guidance on bid evaluation methods and standards for selection of investors executing public-private partnership projects and template of build-operate-transfer contract in transport sector is amended as follows:

“This Circular provides guidance on bid evaluation methods and standards for selection of investors executing public-private partnership (PPP) projects (except bid evaluation methods and standards for selection of investors executing expressway projects in PPP form and under O&M contract) and template of the build-operate-transfer contract (hereinafter referred to as “BOT contract”) in transport sector.”.

Article 16. Implementation organization

Chief of the Ministry Office, Chief Inspector of the Ministry, Directors General/Directors of Departments/Administrations affiliated to the Ministry of Transport of Vietnam, Directors of Project Management Boards affiliated to the Ministry of Transport of Vietnam, Directors of Provincial Departments of Transport, heads of relevant authorities, units and relevant individuals shall implement this Circular./.

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