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THE
GOVERNMENT OF VIETNAM
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SOCIALIST
REPUBLIC OF VIETNAM
Independence - Freedom – Happiness
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No.
122/2026/ND-CP
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Hanoi,
April 03, 2026
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DECREE
ON ELABORATION OF RESOLUTION OF ISSUES IN BUILD-OPERATE-TRANSFER
TRANSPORT PROJECTS
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 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
Public Investment No. 58/2024/QH15;
Pursuant to the Law on
State Budget No. 89/2025/QH15;
Pursuant to the Law on
amendments to 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 Tax and Import Tax, the Law on Investment, the Law on Public
Investment, the Law on Management and Use of Public Assets No. 90/2025/QH15;
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The Government
promulgates a Decree on elaboration of resolution of issues in Build-Operate-Transfer
transport projects.
Chapter I
GENERAL
PROVISIONS
Article 1. Scope
1. This Decree provides
for elaboration of:
a) Resolution of
revenue shortfall issues of Build-Operate-Transfer ("BOT") road
projects with contracts signed before January 1, 2021 in accordance with
Article 99a of the Law on Investment in the form of public-private partnership
(hereinafter referred to as the Law on PPP);
b) Conditions for
payment and principles for determining compensation costs, early termination of
the contract in accordance with point a clause 2a Article 52 of the Law on PPP
for BOT transport projects in the operation and business phase with contracts
signed before January 1, 2021.
2. Other public-private
partnership investment projects shall comply with regulations of the Government
on elaboration of the Law on PPP.
Article 2. Regulated
entities
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Article 3.
Interpretation of terms
1. “Parties” means the
parties signing the BOT project contract, including: the contracting authority,
the investor, and the project company.
2. “BOT transport
project” means a transport infrastructure investment project implemented under
a BOT contract.
3. BOT road project
means a road infrastructure investment project implemented under a BOT
contract.
Chapter II
RESOLUTION
OF REVENUE SHORTFALL ISSUES OF BOT ROAD PROJECTS
Article 4.
Determination of projects with non-viable financial plans in accordance with
point a clause 2 Article 99a of the Law on PPP
Projects specified at
point a clause 2 Article 99a of the Law on PPP shall be determined as having
non-viable financial plans when falling into one of the following cases:
1. The project must
reduce the number of toll stations due to changes in planning, policies, or
relevant laws of the State as proposed by one of the contracting parties and
approved by the competent authority.
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Article 5. Contents of
negotiation and agreement among the contracting authority, investor, project
company and lender in accordance with point c clause 2 Article 99a of the Law
on PPP
The contracting
authority, investor, project company, and lender in accordance with point c
clause 2 Article 99a of the Law on PPP shall negotiate and agree on the
following:
1. Determination of the
reduction in the return on equity, lending interest rate, and adjustment of the
debt repayment plan in the financial plan in accordance with clause 1 and
clause 2 Article 7 of this Decree;
2. Update of the ratio
and amount of state capital for revenue shortfall sharing as prescribed in
Article 6 of this Decree; return on equity, lending interest rate, and
adjustment of the debt repayment plan prescribed in clause 1 of this Article,
and calculation of an adjusted financial plan ensuring feasibility.
Article 6. Revenue
shortfall sharing ratio
1. For projects meeting
the conditions prescribed in clause 2 Article 99a of the Law on PPP and
elaborated in Article 4 and Article 5 of this Decree, the State shall share the
revenue shortfall with the investor and the project company based on the
difference between the revenue in the financial plan and the actual revenue
determined in clause 2 of this Article; such sharing shall be implemented once.
2. The State shall
share the revenue shortfall at a ratio (k) determined not exceeding 75% of the
average ratio between the reduced revenue and the revenue in the financial plan
of the project over the most recent 3 years; in which the reduced revenue is
determined as the revenue in the financial plan minus the actual revenue.
Revenue shortfall
sharing ratio k ≤ 75% x
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ai: revenue
of year i in the financial plan under the contract signed prior to the time the
project is affected by changes in planning, policies, or relevant laws of the
State.
bi: actual
revenue in year i.
n: 3 (3 most recent
years prior to the calculation time).
3. Amount of state
capital for revenue shortfall sharing
a) The amount of state
capital for revenue shortfall sharing shall be determined as the revenue
shortfall sharing ratio prescribed in clause 2 of this Article multiplied by
the total investment of the project.
State
capital for revenue shortfall sharing = k x T
In which:
k is determined in
accordance with clause 2 of this Article;
T is the total
investment of the project determined under the project approval decision or
decision on adjustment of the project, adjustment of total investment (if any).
The total investment of the project prescribed in this clause does not include
the state capital in the project prescribed at point a and point c clause 1
Article 69 of the Law on PPP.
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Article 7.
Responsibilities of the investor, project company, and lender
1. Based on actual
revenue and the calculated amount of state capital for revenue shortfall
sharing prescribed in clause 3 Article 6 of this Decree, the investor, project
company, and lender shall calculate the reduction in return on equity,
reduction in lending interest rate, and adjustment of the debt repayment plan
in the financial plan, ensuring a viable financial plan, no increase in road
service fee compared to the signed contract, and no extension of the toll
collection period compared to the signed contract.
2. The contracting
authority and the investor, project company shall calculate the adjusted
financial plan based on:
a) Updating the actual
revenue and costs of the project, the amount of state capital for revenue
shortfall sharing in accordance with clause 3 Article 6 of this Decree, the
return on equity, and the lending interest rate in accordance with clause 1 of
this Article.
b) Determining the debt
repayment plan in the adjusted financial plan in the following order of
priority: taxes payable; costs of management, operation, utilization, and
maintenance of the project works; repayment of loan principal, loan interest,
equity capital, and return on equity.
3. Based on the
adjusted financial plan prescribed in clause 2 of this Article, the investor
and the project company shall negotiate with the lender and adjust the debt
repayment plan in the credit agreement to ensure that no loan interest arrears
arise in the calculation year and no reclassification of the project loan
occurs.
4. During the
performance of the contract under the adjusted financial plan prescribed in
clause 2 of this Article, where actual revenue increases higher than the
projected revenue in the adjusted financial plan, the contracting parties shall
update the financial plan to shorten the toll collection period of the project.
The contracting authority shall monitor the increased revenue (if any) and
update the financial plan to shorten the toll collection period of the project.
Article 8. Procedures
for revenue shortfall sharing
1. Based on the actual
revenue of the most recent 3 years, the investor and the project company shall:
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b) Where the project
suffers revenue shortfall due to changes in planning, policies, or relevant
laws of the State, calculate adjustment measures in accordance with clause 2
Article 4 of this Decree.
2. After calculation in
accordance with point b clause 1 of this Article, where the actual revenue of
the most recent 3 years is below 75% of the revenue in the financial plan under
the project contract and falls within the cases prescribed in Article 4 of this
Decree, the investor and the project company shall negotiate and agree with the
lender on the following contents:
a) Calculation and
determination of the ratio and amount of state capital for revenue shortfall
sharing in accordance with Article 6 of this Decree;
b) Calculation and
determination of the reduction in return on equity, reduction in lending
interest rate, and proposed adjustment of the debt repayment plan in the
financial plan in accordance with Article 7 of this Decree;
c) Calculation of the
proposed adjusted financial plan based on updates under point a and point b of
this clause;
d) Proposed adjustment
of the debt repayment plan in the credit agreement in accordance with clause 3
Article 7 of this Decree;
dd) The results of
negotiation of the contents prescribed in this clause shall be recorded in
minutes and signed and sealed by the legal representatives of the investor, the
project company, and the lender.
3. Where the adjusted
financial plan prescribed in clause 2 of this Article ensures viability, the
investor and the project company shall submit a written request for revenue
shortfall sharing to the contracting authority, enclosed with an application
including:
a) Explanatory report
on the following contents: general information of the project; process of
contract performance; report on the rate of revenue reduction between the
revenue in the financial plan and the actual revenue in the most recent 3
years; assessment of causes of revenue shortfall; explanation of satisfaction
of conditions for revenue shortfall sharing prescribed in Article 99a of the
Law on PPP and Article 4 of this Decree; determination of the ratio and amount
of state capital for revenue shortfall sharing prescribed in Article 6 of this Decree;
determination of the sharing responsibilities of the investor, project company,
and lender in accordance with clause 1 Article 7 of this Decree; results of
calculation of the adjusted financial plan; agreed contents between the lender
and the investor, project company in accordance with clause 2 of this Article;
other necessary contents (if any);
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4. Within 45 days from
the date of receipt of a complete application, the contracting authority shall
review the application in accordance with Article 4, Article 5, Article 6, and
Article 7 of this Decree:
a) Where compliant, the
contracting authority shall cooperate with the investor, project company, and
lender to sign minutes of agreement determining the ratio and amount of state
capital for revenue shortfall sharing in accordance with Article 6 of this
Decree and the responsibilities of the investor, project company, and lender in
accordance with Article 7 of this Decree;
b) Where non-compliant,
the contracting authority shall notify the refusal of revenue shortfall sharing
to the investor and the project company (clearly stating the reasons for
refusal of revenue shortfall sharing).
5. Within 10 days from
the date the parties sign the minutes of agreement prescribed in clause 4 of
this Article, the contracting authority shall request the State Audit to audit
the revenue shortfall and the amount of state capital for revenue shortfall
sharing. The application includes:
a) Written request to
the State Audit to audit the revenue shortfall and the amount of state capital
for revenue shortfall sharing;
b) Application
prescribed in clause 3 of this Article;
c) Minutes of agreement
prescribed at point a clause 4 of this Article;
d) Documents of the
competent authority on investment policy; project approval decision; decision
on adjustment of the project, adjustment of total investment (if any); BOT
project contract; other relevant documents and materials (if any).
6. Where necessary, the
contracting authority shall request the investor and the project company to
negotiate and agree with the lender to update the contents prescribed in clause
2 of this Article to ensure consistency with the audit report of the State
Audit.
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8. The contracting
authority shall cooperate with the investor and the project company to adjust
the project contract; the investor and the project company shall cooperate with
the lender to adjust the credit agreement.
9. Based on the
practical situation of sectors and local areas regarding the availability of
each funding source and the priority amount of state budget expenditures in
each period, the competent authority of the project shall determine feasible
funding sources to pay for the revenue shortfall, and report to the competent
authority in accordance with regulations applicable to each funding source in
the order of priority prescribed at point a, point b, and point c clause 3
Article 82 of the Law on PPP, ensuring compliance with clause 3a Article 82 of
the Law on PPP.
10. Procedures for
allocation and payment of state capital for revenue shortfall sharing shall
comply with regulations of the Government on financial management mechanisms
for public-private partnership investment projects and payment and settlement
mechanisms for projects applying BT contracts. State capital for revenue
shortfall sharing shall be disbursed to the account of the project company or
the account of the investor (in case the project does not establish a project
company) opened at the lending bank in accordance with the project contract. The
contracting authority shall monitor the use of state capital for revenue
shortfall sharing to ensure compliance with the project objectives.
Chapter III
CONDITIONS
FOR PAYMENT AND PRINCIPLES FOR DETERMINING COMPENSATION COSTS, EARLY
TERMINATION OF BOT TRANSPORT PROJECT CONTRACTS
Article 9. Conditions
for payment of compensation costs and early termination of the contract
For BOT transport
projects in the operation and business phase with contracts signed before
January 1, 2021, the investor and the project company shall be entitled to payment
of compensation costs and early termination of the contract in accordance with
point a clause 2a Article 52 of the Law on PPP when meeting one of the
following conditions:
1. The project or a
work item of the project has been completed in accordance with construction
laws and put into operation and use for at least 2 years, but the investor and
the project company are not allowed to collect tolls to recover capital in
accordance with the project contract.
2. The project suffers
revenue shortfall, and the parties have calculated the adjusted financial plan
based on the expected amount of state capital for revenue shortfall sharing
under Article 6 of this Decree, reduction in return on equity, and reduction in
lending interest rate under Article 7 of this Decree. After such calculation,
the project has a toll collection period of up to 50 years but still fails to
ensure sufficient revenue to pay: taxes and fees payable; costs of management,
operation, utilization, and maintenance of the project works; loan principal
and loan interest in accordance with the adjusted financial plan.
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1. Compensation costs
and early termination costs shall be determined based on the following
parameters:
a) Total investment in
construction of the project works (including loan interest during the
construction phase, excluding state capital participating in project execution)
determined based on the finalized value after deduction of refundable
value-added tax of the project company and deduction of costs in accordance
with conclusions of inspection authorities and the State Audit (if any);
b) Costs of management,
operation, utilization, and maintenance of the project works determined based
on confirmation of the contracting authority;
c) Taxes and fees of
the project company based on actual performance after deduction of value-added
tax in accordance with regulations (if any);
d) Revenue from service
fees and other sources of revenue (if any) determined based on confirmation of
the contracting authority;
dd) Independent audit
costs (if any);
e) Loan mobilization
costs determined in accordance with clause 3 of this Article.
2. Compensation costs
and early termination costs shall be calculated as the total of costs
prescribed at points a, b, c, dd, and e clause 1 of this Article after
deduction of revenue from service fees and other sources of revenue (if any)
prescribed at point d clause 1 of this Article.
3. Loan mobilization
costs prescribed at point e clause 1 of this Article shall be determined as the
loan amount multiplied by rate P. The period for calculating loan mobilization
costs is from the time the project works are put into operation and business
until the time the competent authority decides on early termination of the
contract.
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In which:
Rate P (%/year): determined
based on the negotiation results between the investor, the project company, and
the credit institution (lender) but not exceeding 4%/year.
Vi: loan amount in year
i, determined based on the actual disbursed loan amount and the finalized
investment value, ensuring compliance with the ratio prescribed in the PPP
project contract. The loan amount does not include the portion of loan already
repaid from revenue sources prescribed at point d clause 1 of this Article (if
any).
n: number of years,
determined from the time the project works are put into operation and business
until the time the competent authority decides on early termination of the
contract. Where a portion of the loan is disbursed after the project is put
into operation and business, the number of years shall be determined from the
time of disbursement of such loan portion to the time the competent authority
decides on early termination of the contract.
4. Return on equity of
the investor shall not be included in compensation costs and early termination
costs.
Article 11. Procedures
for payment of compensation costs and early termination of the contract
1. The investor and the
project company shall submit a written request to the contracting authority for
early termination of the PPP project contract in accordance with regulations of
the Government on elaboration of the Law on PPP, enclosed with:
a) Report and
explanation of the following contents: a) Report and explanation of the
following contents: general information of the project, process of contract
performance; causes leading to early termination of the contract; explanation
of conditions for application and calculation results in accordance with Article
9 of this Decree (for projects prescribed in clause 2 Article 9 of this Decree,
explanation and calculation of the adjusted financial plan in accordance with
Article 6 and Article 7 of this Decree are required); provisions of the project
contract on the payment responsibilities of the contracting authority in case
of early termination of the contract under point a clause 2a Article 52 of the
Law on PPP; results of negotiation between the investor, the project company,
and the lender on loan mobilization costs in accordance with clause 3 Article
10 of this Decree; proposed value of state capital for compensation and early
termination determined in accordance with Article 10 of this Decree;
b) Accompanying
documents: documents related to costs prescribed in clause 1 and clause 3
Article 10 of this Decree; audit report of independent audit (if any); minutes
of negotiation between the investor, the project company, and the lender on
loan mobilization costs in accordance with clause 3 Article 10 of this Decree
and the payment plan for compensation costs and early termination; other
relevant documents and materials.
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a) Where compliant with
Article 9 and Article 10 of this Decree, the contracting authority shall
cooperate with the investor, the project company, and the lender to sign
minutes of agreement on conditions for early termination of the project
contract in accordance with regulations of the Government on elaboration of the
Law on PPP.
b) Where not compliant
with Article 9 and Article 10 of this Decree, the contracting authority shall
notify the refusal of payment and early termination of the contract to the
investor and the project company (clearly stating the reasons for refusal of
payment and early termination of the contract).
3. Based on the minutes
of agreement on conditions for early termination of the project contract
prescribed in clause 2 of this Article, the contracting authority shall
cooperate with the investor and the project company to sign a contract appendix
to amend and supplement the contents of the project contract in accordance with
clause 4 Article 101 of the Law on PPP, ensuring compliance with regulations of
the Government on elaboration of the Law on PPP.
4. Within 10 days from
the date of signing the contract appendix prescribed in clause 3 of this
Article, the contracting authority shall send a written request to the State
Audit to audit compensation costs and early termination of the contract,
enclosed with the application prescribed in clause 1 of this Article and the
minutes of agreement prescribed at point a clause 2 of this Article.
5. Where necessary, the
contracting authority shall request the investor, the project company, and the
lender to update the proposed value of state capital for compensation and early
termination of the contract in accordance with point a clause 1 of this Article
and the contents of the minutes of agreement between the lender and the
investor, the project company prescribed at point b clause 1 of this Article to
ensure consistency with the audit report of the State Audit.
6. Within 10 days from
the date of receipt of the audit report of the State Audit (or the date of
receipt of the updated report prescribed in clause 5 of this Article), the
contracting authority shall report to the competent authority for decision on
early termination of the contract and compensation costs for early termination
of the contract The competent authority shall consider and decide within 15
days from the date of receipt of the report of the contracting authority.
7. The use of public
investment capital for compensation and early termination of the contract shall
comply with point b clause 6a Article 52 of the Law on PPP. State capital for
payment of compensation costs and early termination of the contract shall be
disbursed to the account of the project company or the account of the investor
(in case the project does not establish a project company) opened at the
lending bank in accordance with the project contract.
8. Payment of
compensation costs for early termination of the contract shall comply with
regulations of the Government on financial management mechanisms for
public-private partnership investment projects and payment and settlement
mechanisms for projects applying BT contracts.
9. After termination of
the contract, the contracting authority shall cooperate with the investor and
the project company to carry out procedures for handover and receipt of the
project, and carry out procedures for establishment of public ownership rights
in accordance with laws on management and use of public assets.
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IMPLEMENTATION
PROVISIONS
Article 12. Entry into
force
1. This Decree comes
into force as of the date of signing.
2. Where issues arise
related to increase, reduction, or support of lending interest rates, the State
Bank of Vietnam shall guide credit institutions in accordance with its
competence and applicable laws.
3. Ministers, Heads of
ministerial agencies, Heads of Governmental agencies, and Presidents of
People’s Committees of provinces and centrally-affiliated cities shall, within
their functions and powers, guide and shall implement this Decree./.
ON
BEHALF OF GOVERNMENT
PP. PRIME MINISTER
DEPUTY MINISTER
Tran Hong Ha