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NATIONAL
ASSEMBLY
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SOCIALIST
REPUBLIC OF VIETNAM
Independence - Freedom - Happiness
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Law No.
64/2020/QH14
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Hanoi,
June 18, 2020
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LAW
ON
PUBLIC – PRIVATE PARTNERSHIP INVESTMENT
Pursuant to the Constitution of the Socialist
Republic of Vietnam;
The National Assembly hereby promulgates the Law
on Public – Private Partnership Investment.
Chapter I
GENERAL PROVISIONS
Article 1. Scope
This Law provides for public - private partnership
investments; state management, rights, obligations and responsibilities of
entities, organizations and individuals involved in public - private
partnership investments.
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This Law provides for public - private partnership
(abbreviated to PPP) investments; state management, rights, obligations and
responsibilities of entities, organizations and individuals involved in public
- private partnership investments.
Article 3. Interpretation
For the purposes of this Law, terms used herein
shall be construed as follows:
1. Pre-feasibility study report refers to a
written document describing the subject matters of a preliminary study,
including necessity, feasibility and effectiveness of a PPP investment project
(hereinafter referred to as PPP project), as a basis for competent authorities’
grant of investment policy decisions.
2. Feasibility study report refers to a
written document describing subject matters of the study relating to the
necessity, feasibility and efficiency of a PPP project as a basis for competent
authorities’ approval of that project.
3. Bid guarantee refers to an investor's
implementation of one of security forms, such as leaving a deposit, depositing
funds into escrow accounts or standing surety by a credit institution, foreign
bank branch or insurance enterprise lawfully operating in Vietnam prior to the
tender closing time or date in order to ensure the bidder’s participation in a
bid.
4. Performance guarantee refers to a PPP
project enterprise's implementation of one of the security forms, such as
leaving a deposit, depositing funds into escrow accounts or standing surety by
a credit institution, foreign bank branch or insurance enterprise lawfully
operating in Vietnam in order to ensure execution of contracts by a PPP project
investor or enterprise.
5. Lender means an organization or
individual that lends funds to a PPP project investor or enterprise to execute
a PPP project contract.
6. Bid solicitor refers to a unit with
expertise and competence assigned by a competent agency to organize the
selection of investors.
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8. PPP project enterprise refers to an
enterprise established by an investor to serve the sole purpose of concluding
and executing PPP project contracts.
9. PPP project is a set of proposals related
to the investment to provide public products and services through the
implementation of one or the following activities:
a) Construction, operation and business of
infrastructure works and systems;
b) Renovation, upgradation, expansion,
modernization, operation and business of available works and systems;
c) Operation and business of available
infrastructure works and systems.
10. Public - private partnership investment refers
to a form of investment carried out by the fixed-term cooperation between the
state and a private-sector investor through conclusion and execution of a PPP
project agreement in order to call for private sector involvement in a PPP
project.
11. PPP project preparation unit is the unit
assigned by the competent agency to prepare pre-feasibility study reports,
feasibility study reports, and perform other related tasks.
12. Prequalification application means all
documents prepared by a bidder and submitted to a bid solicitor according to
requirements of an invitation for prequalification.
13. Bidding documentation means all
documents prepared by a bidder and submitted to a bid solicitor according to
requirements of an invitation to bid.
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15. Bidding invitation means all documents
used for selecting investors, including requirements for project implementation
set forth as a basis for an investor’s preparation of bidding documentation,
and a bid solicitor’s evaluation of bidding documents and contract negotiation
in order to select investors who meet project execution requirements.
16. PPP project contract means a written
agreement between a contracting authority and a PPP project investor or
enterprise on the State's concession to that investor or PPP project enterprise
to execute a PPP project according to provisions of this Law, including the
following types of contracts:
a) Build – Operate – Transfer contract (hereinafter
referred to as BOT contract);
b) Build - Transfer - Operate contract (hereinafter
referred to as BTO contract);
c) Build - Own - Operate contract (hereinafter
referred to as BOO contract);
d) Operate - Manage contract (hereinafter referred
to as O&M contract);
dd) Build - Transfer - Lease contract (hereinafter
referred to as BTL contract);
e) Build - Lease - Transfer contract (hereinafter
referred to as BLT contract);
g) Mixed contract prescribed in Clause 3 of Article
45 of this Law.
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18. PPP investor (hereinafter referred to as
investor) is an independent legal entity established under the provisions of
law, or established by entering into partnership amongst multiple legal
entities involved in PPP investments.
19. State capital comprises state budget
capital or capital from lawful revenues retained as investment or regular
expenditures belonging to the state budget’s spending tasks.
Article 4. Investment sector,
size and classification of PPP projects
1. PPP investment sectors, including:
a) Transportation;
b) Power grids, power plants, except hydropower
plants and those subject to the state monopoly requirement as provided in the
Law on Electricity;
c) Water resources and irrigation; clean water
supply; water drainage and wastewater treatment; waste management and disposal;
d) Healthcare; education – training;
dd) Information technology infrastructure.
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a) The minimum capital requirement of not less than
VND 200 billion shall be imposed on projects in the sectors specified in points
a, b, c and dd of clause 1 of this Article. In case where projects are executed
in areas facing socio-economic difficulties or extreme socio-economic
difficulties under the provisions of laws on investment, they must meet the
minimum capital requirement of not less than VND 100 billion;
b) The minimum capital requirement of not less than
VND 100 billion shall be imposed on the projects in the sectors specified in
point d of clause 1 of this Article;
c) Regulations on the minimum capital requirement
laid down in point a and b of this clause shall not apply to O&M projects.
3. PPP projects shall be classified by the
jurisdiction to issue investment policy decisions, including:
a) PPP projects falling under the National
Assembly’s delegated authority to grant investment policy decisions;
b) PPP projects falling under the Prime Minister's
delegated authority to issue investment policy decisions;
c) PPP projects falling under the authority to
grant investment policy decisions delegated to Ministers, heads of central
authorities and other entities specified in clause 1 of Article 5 in this Law;
d) PPP projects falling under the authority to
grant investment policy decisions delegated to provincial People’s Councils.
4. The Government shall elaborate on investment
sectors prescribed in clause 1 and minimum capital requirements imposed on
specific investment sectors as provided in clause 2 of this Article.
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1. Competent authorities, including:
a) Ministries, Ministry-level agencies,
governmental agencies, central bodies affiliated to political organizations,
Supreme People’s Procuracy, Supreme People’s Court, State Audit, Office of the
President, Office of the National Assembly, and central bodies of Vietnam
Fatherland Front and socio-political organizations (hereinafter referred to as
Ministries and/or central authorities);
b) Provincial People’s Committees;
c) Agencies and organizations set up by the
Government and the Prime Minister, and assigned make state budget estimates
according to the provisions of law on state budget (hereinafter referred to as
other authorities).
2. Authorities signing PPP contracts, including:
a) Competent authorities prescribed in clause 1 of
this Article;
b) Entities and units authorized by competent
authorities to sign contracts as provided in clause 4 of this Article.
3. In cases where projects fall under the
management of multiple competent authorities prescribed in Clause 1 of this
Article, or in case of change of competent authorities, these authorities shall
report to the Prime Minister to seek his decision to designate an authority as
the competent authority.
4. Competent agencies may authorize their directly
controlled agencies or units to act as authorities signing contracts to execute
PPP projects within their competence.
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1. PPP Project Assessment Boards, including:
a) State Assessment Board tasked with carrying out
an assessment of pre-feasibility study reports and feasibility study reports
for PPP projects falling under the National Assembly’s delegated authority to
grant investment policy decisions;
b) Interdisciplinary Assessment Board specialized
in carrying out an assessment of pre-feasibility study reports and feasibility
study reports for PPP projects falling under the Prime Minister’s delegated
authority to grant investment policy decisions;
c) State Assessment Board tasked with carrying out
an assessment of pre-feasibility study reports and feasibility study reports
for PPP projects falling under the authority to grant investment policy
decisions delegated to Ministers, Heads of central or other bodies or
provincial People’s Councils, except assessment tasks assigned to units
directly controlled by competent authorities referred to clause 3 of this
Article.
2. The Prime Minister shall decide to set up PPP
Project Assessment Boards prescribed at Points a and b of Clause 1 of this
Article upon the request of the Minister of Planning and Investment.
3. Based on the size, scale and significance of
each project, the Minister, Head of central or other body, President of a
provincial People's Committee shall establish grassroots-level Assessment
Boards or assign their directly-controlled unit to conduct an assessment of
pre-feasibility study reports and feasibility study reports for PPP projects.
4. The PPP Project Assessment Board and its
subordinate unit performing the assessment tasks may hire an independent
consultant to work for them.
5. The Government shall elaborate on this Article.
Article 7. PPP investment
management principles
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2. Ensuring the effective management and use of
State resources invested in PPP projects.
3. Carrying out the inspection, review, state audit
and supervision of PPP projects must ensure that these activities do not
obstruct normal investment and business activities of PPP investors and/or
enterprises.
4. Ensuring open, transparent, fair, sustainable
and efficient investments.
5. Ensuring the balancing between interests of the
State, investors, users and the community.
Article 8. State management of
PPP investments
1. Promulgate, propagate, disseminate and direct
the implementation of legislative documents on PPP investments.
2. Review, evaluate and report on the
implementation of PPP investments.
3. Examine, inspect and supervise the
implementation of legal provisions on PPP investments.
4. Settle complaints, denunciations and sanction
violations related to PPP investments; address any petitions or recommendations
related to the investor selection process.
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6. Provide instruction or support related to, and
address any issue arising from, administrative procedures for carrying out PPP
investment activities at the request of PPP project investors and enterprises.
Article 9. Transparency and
disclosure of information about PPP investments
1. Information that must be made available on the
Vietnam National E-Procurement System includes:
a) Information about investment policy decisions or
decisions on approval of PPP projects;
b) Information about selection of investors,
including invitation for prequalification, invitation to bid, shortlist, bidder
selection results;
c) Information about selected investors in PPP
projects and PPP project enterprises;
d) The main contents of a PPP project contract,
including total investment; proportion of funds invested in a project; type of
contract; duration of project implementation; prices and costs of each public
product and service; fee or cost collection forms and locations (if any) and
other necessary information;
dd) The settled amount of public investment capital
invested in PPP projects in the case of using public investment capital;
e) Legislative documents regarding PPP investment;
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h) Information on settlement of complaints,
denunciations, petitions and sanctioning of violations of PPP investment law.
2. In addition to being posted on the National
E-Procurement System, the information specified in Points a, b, c and d of
Clause 1 of this Article must be made publicly available on websites (if any)
of competent authorities.
3. All the information specified in Clause 1 of
this Article should be published on other mass media.
Article 10. Prohibited acts
related to PPP investment
1. Issuing investment policy decisions that are not
conformable to public investment strategies, plans and programs; that fail to
determine state-owned capital invested in those PPP projects that are subject
to the requirement concerning use of state capital; that are made ultra vires
or in breach of legally required processes and procedures prescribed in this
Law.
2. Approving PPP projects in the absence of
investment policies; not conforming to investment policies; ultra vires or in
breach of legally required processes and procedures prescribed in this Law.
3. Competent authorities and contracting entities
in collusion with consulting organizations and investors issue decisions on PPP
investment policies and approval of PPP projects that result in any loss or
waste of state capital, assets and national resources, and any harm or
infringement on legitimate interests of citizens and the public.
4. Failing to ensure fairness and transparency
during the process of investor selection, including the following acts:
a) Tender as an investor for projects in which the
investor is the bid solicitor, the competent authority, the contracting
authority or the entity functioning as the bid solicitor, the competent
authority or the contracting authority;
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c) A person put under the control of a bid
solicitor, a competent authority or a contracting authority directly
participates in the investor selection process, or joins a team of experts or a
team of verification of investor selection results; or is the head of a
competent authority, a contracting authority or a bid solicitor, with respect
to a project for which his/her natural father, mother, father-in-law,
mother-in-law, mother-in-law, spouse, blood or adopted child, daughter-in-law,
son-in-law, younger or elder sibling signs the name of the bidder or acts as
the legal representative for an investor to bid.
d) Bear the name of the bidder for a project for
which a competent authority, a contracting authority or a bid solicitor is the
entity or organization where he/she has worked for 12 months before leaving.
5. Disclosing and receiving the following documents
and information about the investor selection process:
a) Documents and information related to
documentation for invitation for prequalification or invitation to bid before
the time of issuance thereof as prescribed, except for cases where projects are
subject to the requirement concerning market surveys and prior consultation
with investors for preparation of such documentation;
b) Documents and information related to
pre-qualification applications, bidding documents, reports of bid solicitors,
reports of expert teams, assessment reports, reports of consulting contractors
or reports of relevant professional bodies made in the investor selection
process, prequalification results or investor selection results before they are
disclosed according to regulations;
c) Other documents coming into existence during the
investor selection process, if it is established that they contain state
secrets prescribed by law.
6. Performing bid rigging acts as follows:
a) Entering into an agreement on bid withdrawal or
withdrawal of the bid application already submitted in order for one or more
parties to such agreement to win the bid;
b) Make an agreement to one or more parties to
prepare bid applications for the bidders so that one or some parties to such
agreement win the bid.
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8. Ceasing the supply of public products and
services other than those falling in the cases specified in PPP contracts.
9. Offering, taking and brokering bribes to gain
advantage in performing PPP investment activities.
10. Abusing assigned titles and powers to
appropriate, make personal gain from and commit acts of corruption while
managing and using public investment capital invested in PPP projects;
illegally interfering with the PPP project process.
11. Performing PPP investment acts by fraud,
including:
a) Counterfeiting and falsifying information,
records and documents related to decisions on investment policies and decisions
on approval of PPP investment projects, selecting investors and implementing
PPP investment projects in order to obtain illegal gain or evade any
obligation;
b) Deliberately providing untruthful or biased
information that falsifies approved investment policies, PPP projects, investor
selection results, review, inspection, supervision or audit results, results of
settlement of public investment capital, discharge and termination of PPP
contracts;
c) Deliberately providing untruthful and biased
information that falsifies data and figures regarding PPP project’s revenues in
order to gain illicit profits.
12. Hindering detection and sanctioning of any
violation against law on PPP investments.
Article 11. PPP project
process
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a) Making and assessing pre-feasibility study
reports, decisions on investment policies and project announcement;
b) Making, evaluating feasibility study reports,
and approving projects;
c) Selecting investors;
d) Establishing PPP project enterprises and
concluding PPP contracts;
e) Implementing PPP contracts.
2. For PPP projects using high technologies on the
list of high technologies prioritized for investment in development thereof
under the provisions of the law regarding high technologies and using new
technologies according to the provisions of technology transfer law, PPP
project process shall be subject to the following regulations:
a) Making and assessing pre-feasibility study
reports, decisions on investment policies and project announcement;
b) Selecting investors;
c) Selected investors prepare feasibility study
reports;
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dd) Implementing steps prescribed at point d and dd
of Clause 1 of this Article.
3. In case where a PPP project has a construction
work requiring an architectural proposal test, the test may be considered and
approved under an investment policy decision prescribed in Clause 1 or Clause 2
of this Article. The architectural proposal test must comply with provisions of
law on architecture.
4. Projects under public investment plans which are
considered to be converted into PPP projects shall comply with the process
specified in Clause 1 or Clause 2 of this Article.
5. The Government shall elaborate on the PPP
project process.
Chapter II
PPP PROJECT PREPARATION
Section 1. PPP PROJECTS
DEVELOPED BY COMPETENT AUTHORITIES
Article 12. Authority to issue
decisions on policies for investment in PPP projects
1. The National Assembly shall be vested with
authority to issue decisions on policies for investment in PPP projects that
meet one of the following criteria:
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b) Having substantial environmental impacts or
posing potential risks in making serious environmental impacts, including
nuclear power plants; using land subject to the requirement for conversion of
uses from land for cultivating specialized forests, upstream protection forests
or border protection forests which covers an area of 50 hectares or more; from
land for protective forests used as wind or sand screens, wave breakers, or sea
reclamation land, which covers at least 500 hectares; from land for production
forests which covers a minimum area of 1,000 hectares;
c) Using land subject to the requirement for
conversion of uses from arable land covering an area of 500 hectares or more
for growing wet rice during at least two cropping seasons;
d) Resettling at least 20,000 inhabitants in
mountainous areas or at least 50,000 inhabitants in other regions;
dd) Requiring special legal frameworks or policies
subject to the National Assembly's decisions.
2. Except for the projects specified in Clause 1 of
this Article, the Prime Minister shall be accorded authority to grant decisions
on investment policies for PPP projects satisfying one of the following
criteria:
a) Resettling at least 10,000 inhabitants in
mountainous areas or at least 20,000 inhabitants in other regions;
b) Using central budget capital managed by
ministries or central agencies with total investment equivalent to that in
Group A projects in accordance with the law on public investment, or using ODA
loans and preferential loans from foreign sponsors;
c) Investment in new construction: airports and
airfields; runways of airports and airfields; passenger terminals of
international airports; cargo terminals of airports and airfields with an
annual cargo handling performance of 1 million tonnes or more;
d) Investment in new construction: harbors or port
areas inside special seaports; wharves and port areas inside grade-I seaports
with total investment equivalent to that in Group A projects in accordance with
the law on public investment.
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4. Provincial People’s Councils shall be accorded
authority to make decisions on policies for investment in PPP projects under
their jurisdiction, except for the projects specified in Clauses 1 and 2 of
this Article.
5. In case of adjustment in policies for investment
in PPP projects, authority to make decisions on policies for investment in PPP
projects shall be subject to regulations laid down in Clause 2 of Article 18
herein.
Article 13. Procedures for
making decisions on investment policies for PPP projects
1. Procedures for grant of decisions on investment
policies for PPP projects falling under the National Assembly’s delegated
authority shall be subject to the following regulations:
a) PPP project preparation unit prepares a
pre-feasibility study report as a basis for the relevant competent authority to
submit it to the Government, and concurrently send it to the Ministry of
Planning and Investment;
b) The Ministry of Planning and Investment offers
the Prime Minister a suggestion about setting up the State Assessment Board;
c) The State Assessment Board conducts an
assessment of the submitted pre-feasibility study report. In case any project
uses public investment capital, the evaluation of funding sources and the
capability to balance investment capital shall be subject to law on public
investment;
dd) The Government prepares complete documentation
submitted to the National Assembly for its review and decision;
dd) The National Assembly’s affiliate verifies and
reviews the Government’s submitted documentation;
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2. Procedures for grant of decisions on investment
policies for PPP projects falling under the Prime Minister’s delegated
authority shall be subject to the following regulations:
a) PPP project preparation unit prepares a
pre-feasibility study report as a basis for the competent authority to send it
to the Ministry of Planning and Investment;
b) The Minister of Planning and Investment offers
the Prime Minister a suggestion about setting up the Interdisciplinary
Assessment Board;
c) The Interdisciplinary Assessment Board conducts
an assessment of the submitted pre-feasibility study report;
d) Ministry of Planning and Investment leads the
evaluation of funding sources and capacity for balancing central government’s
budget capital under the provisions of law on public investment in the case of
PPP projects using central government’s budget capital before sending them to
the Interdisciplinary Assessment Board;
dd) Local public investment authorities lead the
evaluation of funding sources and capacity for balancing local government’s
budget capital under the provisions of law on public investment in the case of
PPP projects using local government’s budget capital before sending them to the
Interdisciplinary Assessment Board;
e) The Interdisciplinary Assessment Board completes
and sends an assessment report to the relevant competent authority;
g) Competent authority prepares complete
documentation submitted to the Prime Minister for his review and decision;
h) The Prime Minister issues investment policy
decisions.
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a) PPP project preparation units prepare
pre-feasibility study reports as a basis for Ministers and heads of central
authorities and other bodies to consider issuing decisions;
b) Grassroots-level Assessment Boards or authorized
units carry out the assessment of pre-feasibility study reports;
c) Public investment authorities under the control
of Ministries, central authorities and other bodies lead the evaluation of
funding sources and capacity for balancing public investment capital under the
provisions of law on public investment in the case of PPP projects using public
investment capital before sending them to the Grassroots-level Assessment
Boards or authorized assessment units;
d) Grassroots-level Assessment Boards or authorized
assessment units complete and send assessment reports to PPP project
preparation units;
dd) PPP project preparation units prepare complete
documentation for submission to Ministers and heads of central authorities and
other bodies for their review and decision;
e) Ministers, heads of central authorities and
other bodies issue their investment policy decisions.
4. Procedures for grant of decisions on investment
policies for PPP projects falling under the delegated authority of provincial
People’s Councils shall be subject to the following regulations:
a) PPP project preparation units prepare
pre-feasibility study reports for submission to provincial People’s Committees;
b) Grassroots-level Assessment Boards or authorized
assessment units carry out the assessment of pre-feasibility study reports;
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d) Grassroots-level Assessment Boards or authorized
assessment units complete and send assessment reports to PPP project
preparation units;
dd) PPP project preparation units prepare complete
documentation as a basis for provincial People's Committees to submit them to
provincial People's Councils for their review and decision;
e) Provincial People’s Councils issue investment
policy decisions.
5. As for PPP projects using regular expenditures
or lawful revenues reserved for regular spending purposes by state authorities
or public service units for making payments to PPP project enterprises, or
using state budget reserves for offsetting reduced revenues, financial
institutions at all levels evaluate the capability of balancing the budget
according to the provisions of law on state budget, and send them to PPP
Project Assessment Boards or assigned assessment units for a general
report submitted to competent authorities to seek their investment policy
decisions.
Article 14. Selection of PPP
projects and formulation of pre-feasibility study reports for PPP projects
1. Requirements for a project’s eligibility for PPP
investment shall comprise:
b) Necessity of making investment;
b) The selected project falls within the sectors
prescribed in clause 1 of Article 4 in this Law and meets the minimum total
investment requirement prescribed in clause 2 of Article 4 herein;
c) The selected project is not the duplicate of the
PPP project obtaining an investment policy decision or a project approval
decision;
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dd) State capital may be available on demand.
2. Bases for preparation of pre-feasibility study
reports shall include:
a) National socio-economic development strategies,
plans and other planning schemes in accordance with law on planning;
b) Provisions of this Law and other regulations of
other laws related to the sectors where projects invest;
c) Other relevant legislative documents.
3. Pre-feasibility study report shall contain the
following main subject matters:
a) Necessity of making investment; more advantages
provided by PPP investment than other investment form; effects of PPP projects
on the community and population living within these projects;
b) Objectives; proposed scale, location and time of
execution of projects, land and other natural resource demands;
c) Preliminary design plans under the construction
law for projects with construction components, other relevant laws for projects
without construction components; preliminary explanatory notes or
interpretations on technical and technological plans; preliminary division of
component projects (if any);
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dd) Preliminary total investment estimate;
preliminary assessment of the project's financial plan; proposal for use of state
capital invested in the project (if any); proposal for application of the
method of payment to the investor with respect to BTL or BLT projects;
e) Proposed PPP contract type; investment incentive
and guarantee forms; mechanism for distribution of reduced revenues.
Article 15. Assessment of
pre-feasibility study reports for PPP projects
1. Documentation on assessment of PSR shall
comprise:
a) Written request for assessment;
b) Draft application for decision on investment
policy;
c) Pre-feasibility study report;
d) Other legislative materials related to the
project.
2. Assessment of a pre-feasibility study report
shall mainly focus on the followings:
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b) Relevance to bases for formulation of
pre-feasibility study report prescribed in clause 2 of Article 14 herein;
c) Efficiency of investment; capital recovery;
d) Relevance of the PPP contract type;
dd) Mechanism for distribution of revenue
reductions;
e) Funding sources and capital balancing capability
of PPP projects using state capital.
Article 16. Request
documentation for investment policy decisions for PPP projects
1. Request form for investment policy decision.
2. Draft decision on investment policy.
3. Pre-feasibility study report.
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5. Other legislative materials related to the
project.
Article 17. Information
included in an investment policy decision for a PPP project
1. An investment policy decision shall include the
following main information:
a) Project name;
b) Competent authority’s name;
c) Objectives; proposed project scale, site and
time of execution of the project, land and other natural resource demands;
d) Proposed PPP contract type;
dd) Preliminary total investment estimate;
preliminary financial plan: structure of funds invested in the project,
expected price bracket, and prices of public products and services with respect
to projects applying the mechanism for collecting fees directly from users;
e) Mechanism for guarantee of investment and
distribution of revenue reductions.
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Article 18. Modification of
PPP investment policy
1. PPP investment policy shall be adjusted if the
PPP project's objectives, location, scale or type of contract is changed, and
the total investment is increased by 10% or more, or the value of state capital
invested in the PPP project is increased, due to the following causes:
a) A project is affected by force majeure events;
b) Relevant planning, policies and laws change;
c) Pre-feasibility study report is modified.
2. Competent authorities mandated to make decisions
on policies for investment in PPP projects shall be authorized to issue
decisions to modify policies for investment in those projects and shall be responsible
for such decisions.
3. Procedures for a competent authority’s grant of
a decision to modify an investment policy for a PPP project shall be subject to
regulations laid down in Article 13 applied to adjustments or modifications.
4. Documentation on modification of an investment
policy, including:
a) Request form for adjustment or modification of
investment policy;
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c) Report on inspection and review of modified or
adjusted contents of a pre-feasibility study report;
d) Other legislative materials related to the
project.
Article 19. Contents of a
feasibility study report for a PPP project
1. The PPP project preparation unit shall make a
feasibility study report, based on investment policy decisions.
2. Main subject matters of a feasibility study
report, including:
a) Necessity of making investment; more advantages
provided by PPP investment than other investment form; results of response to
comments on the impacts of PPP projects upon receipt of opinions from People's
Councils, People's Committees, Vietnam Fatherland Front of the provinces where
the projects are located, or investment-related trade associations;
b) Relevance to related national socio-economic
development strategies, plans and other related planning schemes in accordance
with law on planning;
c) Objectives; scale; location; land and other
natural resource demands;
d) Project execution time and schedule, including
contract term and construction time for projects with construction components;
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e) PPP contract type; project-related risk analysis
and risk management measures;
g) Investment incentive or guarantee form,
mechanism for splitting of reduced revenues;
h) Total investment; financial plan; estimated
state capital and corresponding management and use method (if any); results of
survey of interest of investors and lenders (if any); capability to raise capital
for implementation of projects; plans for organization of management, business
or provision of public products and services;
i) Socio-economic efficiency; environmental impact
assessment report prepared in accordance with law on environmental protection.
Article 20. Documentation
requirements and contents of assessment of a feasibility study report for a PPP
project
1. Documentation requirements of assessment of a
feasibility study report shall comprise:
a) Written request for assessment;
b) Application form for approval of the project;
c) Full texts of the feasibility study report;
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dd) Other legislative instruments related to the
project.
2. Assessment of a feasibility study report shall
mainly focus on the followings:
a) Conformity with legal bases;
b) Necessity of making investment;
c) Relevance to requirements concerning technical
and technological plans, quality requirements and standards of the project,
infrastructure systems or public products or services. The assessment of
matters related to design, technical, technological documents and quality
standards shall comply with regulations of law on construction and other
relevant laws;
d) Relevance of the PPP contract type;
dd) Financial feasibility; plans for organization
of management, business or provision of public products and services;
dd) Socio-economic effectiveness.
Article 21. Authority to
approve PPP projects
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2. Ministers, Heads of central authorities and
other agencies shall be authorized to approve the projects under their
management as prescribed in Clause 2 and 3 of this Law.
3. Presidents of provincial People’s Committees
shall be mandated to approve the projects under their management as prescribed
in Clause 2 and 4 of Article 12 in this Law.
Article 22. Documentation
requirements for approval of PPP projects
1. Application form for approval of the project.
2. Draft decision on approval of the project.
3. Feasibility study report.
4. Report on assessment of feasibility study
report.
5. Full texts of the decision on investment policy.
6. Other legislative materials related to the project.
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An investment policy decision for a PPP project
shall include the following main information:
1. Project name;
2. Contract signatory’s name;
3. Objectives; scale; location; time of project
execution; land and other natural resource demands;
4. PPP contract type;
5. Total investment; structure of capital invested
in the project; prices and charges of public products and services for projects
applying the contract under which the mechanism for direct fee collection from
users is carried out;
6. Name of the bid solicitor, form of investor
selection, time of investor selection, except for the case specified in Clause
2 of Article 17 in this Law.
Article 24. Modification of
PPP project
1. Feasibility study report may be revised if:
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b) Elements bringing about higher efficiency for
the project appear;
c) There is any changes in the planning, relevant
policy or law directly affecting objectives, location and scale of the project;
d) Selection of the investor in implementation of
the project fails.
2. If any change in a feasibility study report
results in any change in objectives, scale, location and type of PPP contract,
or an increase of at least 10% or appreciation in state capital invested in a
PPP project, processes and procedures for grant of decision on adjustment of
investment policy must be carried out before seeking the relevant competent
authority’s decision on approval of modification of the project.
3. Authority, processes and procedures for
assessment of and approval of modification of a PPP project shall be subject to
regulations laid down in Article 19, 20, 21, 22 and 23 of this Law with respect
to modifications or revisions.
4. Documentation requirements for modification or
revision of a PPP project shall include:
a) Application form for approval of modification of
the project;
b) Draft decision on approval of modification of
the project;
c) Report on inspection and review of modified or
adjusted contents of a feasibility study report;
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Article 25. Public disclosure
of PPP projects
1. Within 10 days from the date of issuance of the
decision on investment policy, the decision on adjustment in the investment
policy (if any), the decision on approval of the project, the decision on
approval of the adjustment (if any), the competent authority shall make
information about the project publicly available under the provisions of Clause
2 of this Article.
2. Project details to be publicly disclosed shall
comprise:
a) Decision on investment policy, decision on
adjustment in investment policy (if any);
b) Decision on approval of the project, decision on
approval of adjustment in the project (if any);
c) Information about the contact address of the
relevant competent authority, contract signatory and bid solicitor.
Section 2. PPP PROJECTS PROPOSED
BY INVESTORS
Article 26. Requirements of an
investor-proposed PPP project
1. An investor-proposed PPP project must meet the
following requirements:
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b) Ensuring that a PPP project is not duplicated
with other PPP projects for which competent authorities have prepared
pre-feasibility study reports or approved of other investors preparing
pre-feasibility study reports;
c) Conforming to the national socio-economic
development strategies, plans and other relevant planning schemes in accordance
with law on planning.
2. The open tendering and competitive negotiation
for projects proposed by investors must be conducted according to the
provisions of Article 37 or Article 38 of this Law.
Article 27. Procedures for
preparation of investor-proposed PPP projects
1. Procedures for preparation of the proposal
documentation shall be as follows:
a) The investor submits the written proposal form
for implementation of a PPP project to a relevant competent authority. In case
where a receiving competent authority cannot be identified, it shall be sent to
the state PPP investment authority;
b) The competent authority considers responding in
writing that the investor approves or refuses the investor’s bid for
preparation of the pre-feasibility study report. The written approval may
delineate the way to coordinate with a competent authority’s affiliates,
requirements concerning the deadline for submission of an investor’s project
proposal and other relevant matters; in case of disapproval, clearly stating
the reasons;
c) In case of being approved by a competent
authority, the investor prepares a project proposal, including: pre-feasibility
study report, documents and records on the investor’s legal status, capacity
and experience;
d) The investor sends the proposal documentation to
the competent authority;
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2. Projects proposed by investors shall be subject
to the assessment and investment policy decision according to the provisions of
Article 6, 12, 13, 14, 15, 16 and 17 of this Law.
3. Feasibility study report formulation and
assessment, and project approval procedures shall be carried out as follows:
a) The investor takes charge of preparing the
feasibility study report under Article 19 herein;
b) The feasibility study report prepared by the
investor shall be subject to the assessment conducted under Article 20 herein;
c) The project is approved under the regulations
laid down in Article 21, 22 and 23 herein;
d) If the project is not approved, the investor
shall bear all costs and risks.
4. Project announcement procedures shall be subject
to the following regulations:
a) After an investor-proposed project obtains the
investment policy decision or the project approval decision from a relevant
competent authority, the competent authority shall publish project information
in accordance with Article 25 of this Law and name of the investor proposing
the project;
b) For projects containing information related to
intellectual property rights, trade secrets, technologies or capital raising
agreements for project execution subject to the confidentiality requirement,
the investor agree with a relevant competent authority about unpublished
information.
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6. Costs of preparation of the pre-feasibility
study report or the feasibility study report shall be charged into total
investment in the project. In case where the investor submitting the
project proposal is not selected, the expenses incurred from making the
pre-feasibility study report or the feasibility study report shall be
reimbursed by the selected investor.
7. The Government shall elaborate on this Article.
Chapter III
INVESTOR SELECTION
Section 1. GENERAL PROVISIONS
REGARDING INVESTOR SELECTION
Article 28. Investor selection
procedures
1. An investor shall be selected according to the
following procedures:
a) Drawing up the shortlist (where applicable);
b) Making preparations for selection of the
investor;
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d) Evaluating bidding documents;
dd) Submitting, assessing, approving and publishing
investor selection results;
e) Negotiating, finalizing and concluding a PPP
contract, and publishing contract information.
2. Based on the specific conditions of each
project, the competent authority draws up a shortlist after issuing an
investment policy under Point a of Clause 1 of Article 11 in this Law, or after
approving the project under Point b of Clause 1 of Article 11 herein.
3. Selecting an investor according to the
procedures specified in Clause 1 of this Article on the Vietnam National
E-Procurement System shall conform to the schedule set by the Minister of
Planning and Investment.
4. The investor whose project proposal has been
accepted shall be entitled to the preferential treatment during the bid
evaluation process.
5. The selected investor committed to hiring
domestic contractors, and using domestic goods, supplies, materials and
equipment, shall be given preference during the bid evaluation process.
6. The Government shall elaborate on this Article.
Article 29. Investor’s lawful
status
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1. Having an establishment and operation
registration certificate issued by a competent authority of the country or
territory in which that investor is operating;
2. Carrying out the independent financial
accounting regime; ensuring competitive investor selection;
3. Not in the dissolution process; not falling into
the case of insolvency in accordance with the law on bankruptcy;
4. Not subject to any prohibition against
participation in PPP investment activities;
5. Enterprises with 100% state-owned capital must
enter into partnership with private sector investors to participate in the
bidding process;
6. Investors established under foreign laws must
meet market access conditions when participating in the process of selection of
investors in projects in the relevant conditional sectors and trades, subject
to the provisions of the law on investment.
Article 30. Assurance of
competitive investor selection
Bidding investors must display legal and financial
independence from the parties hereunder:
1. The party giving counsel on preparation of the
pre-feasibility study report or feasibility study report, except for cases
where the project is proposed by an investor;
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3. The party giving counsel on the formulation and
assessment of the invitation for prequalification and the invitation for bid;
the evaluation and inspection of prequalification or investor selection
results;
4. The competent authority, the contract signatory
and the bid solicitor.
Article 31. Domestic or
international investor selection
1. The selection of domestic investors shall be
made in the forms prescribed in Articles 37, 38, 39 and 40 of this Law. Only
investors established under Vietnamese law may participate in this selection
process.
2. The selection of international investors shall
be made in the forms prescribed in Articles 37, 38, 39 and 40 of this Law. Both
investors established as per foreign law and those established as per
Vietnamese law may participate in this selection process.
3. The process of selection of international
investors may be applied to all PPP projects, except:
a) Projects in the industries and trades without
the authorization for market access in which foreign investors make their
investment in accordance with the law on investment;
b) Projects subject to the requirements concerning
national defence, security and state secrets.
Article 32. Language used in
the investor selection process
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Article 33. Bid guarantee
1. Based on the scale and nature of each project,
the value of a bid guarantee shall be specified in the invitation for bid at a
determined rate of between 0.5% and 1.5% of total investment of the project.
2. The period of validity of the bid guarantee
specified in the invitation for bid shall be equal to the validity period of
the bid plus 30 days.
3. In case of extension of the validity period of a
bid, the bid solicitor must request the investor to give an extension
equivalent to the period of validity of the bid guarantee provided that the
contents of the submitted bid are not changed. In case the investor refuses to
give such extension, the bid will be no longer valid and eliminated.
4. In case a partnership participates in a bid,
each partner member can provide a separate bid guarantee or can enter into an
agreement under which a partner member is responsible for providing the bid
guarantee for both that partner member and others joining the partnership.
Total value of a bid guarantee shall not be less than the value requested in
the invitation for bid. In case where there is a member in the partnership
violating the provisions of Clause 6 of this Article, the bid guarantees
provided by all member partners shall not be refunded.
5. Bid solicitors must return or release bid
guarantees to unsuccessfully bidding investors within the time limit specified
in the invitation for bid, but not longer than 14 days from the date on which
the results of investor selection are approved. With regard to the selected
investor, their bid guarantee shall be returned or released after the PPP
project enterprise established by the investor has fulfilled their obligations
specified in the contract performance security (or performance bond) as
prescribed in Article 48 herein.
In case an investor refuses to give an extension as
prescribed in Clause 3 of this Article, the bid solicitor must return or
release the bid guarantee to the investor within 14 days from the date on which
the bid solicitor has received the written document on refusal of extension.
6. Bid guarantees shall not be returned in the
following cases:
a) Investors withdraw their bids during the
validity of these bids;
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c) The investor has not conducted or refused to
negotiate or finalize the contract within 30 days of receipt of the bid-winning
notice from the bid solicitor, or has negotiated and finalized the contract but
refused to sign the contract, except in force majeure cases;
d) PPP project enterprises established by investors
has failed to fulfill their obligations specified in the contract performance
security (or performance bond) as prescribed in Article 48 herein.
Article 34. Bid cancellation
1. Bid cancellation shall occur in the following
cases:
a) All applications for prequalification and
bidding documents do not meet the requirements of the invitation for
prequalification or the invitation for bid;
b) Objectives and scale mentioned in the invitation
for prequalification or the invitation for bid change;
c) The invitation for prequalification or the
invitation for bid fails to comply with regulations laid down in this Law or
other relevant laws to the extent that the selected investor fails to meet the
requirements for project implementation;
c) The investor selection process is carried out in
breach of regulations laid down in this Law or other relevant laws to the
extent that competition between investors is restricted;
dd) There is any proof of bribe offer, receipt or
brokerage, bid rigging, fraud, abuse of position and power with the intention
of illegally interfering in bidding activities to the extent that such acts
falsify results of investor selection.
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Article 35. Bid solicitor’s
responsibilities during the investor selection process
1. Assume responsibility before law and to
competent authorities for the investor selection process.
2. Ensure faithfulness, objectivity and equality.
3. Pay compensation in accordance with laws.
4. Keep documents or records confidential.
5. Store relevant information provided in law on
archives.
Article 36. Handling of
investor selection situations arising in the project execution process
1. Handling of investor selection situations
arising in the project execution process means any response to cases arising
that has not been prescribed clearly and in detail herein.
2. Competent authorities and bid solicitors shall
be responsible before law for situation handing decisions on the basis of
ensuring conformity with the following principles:
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b) Such decisions must be made based on the
investment policy decision; the project approval decision; the invitation for
prequalification; prequalification applications or bidding documents;
prequalification results, investor selection results; the contract that has
been signed with the selected investor; actual situation of project
implementation.
3. The Government shall elaborate on this Article.
Section 2. INVESTOR SELECTION
APPROACHES
Article 37. Open bidding
1. Open bidding is an approach to selecting
investors in which the number of participating investors is not limited.
2. Open bidding must be applied to all PPP
projects, except the cases specified in Articles 38, 39 and 40 of this Law.
Article 38. Competitive
negotiation
Competitive negotiation approach shall be employed
in the following cases:
1. No more than 03 investors meeting project
execution requirements are invited to attend;
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3. Projects use high technologies prescribed in law
on technology transfer.
Article 39. Investor
appointment
1. The approach to appointing investors shall be
employed in the following cases:
a) Projects need to meet the requirements
concerning national defence, security and state secret;
b) Projects need to immediately select a substitute
investor in accordance with Point a of Clause 4 of Article 52 in this Law to
ensure continuity in the project implementation process.
2. The authority having competence in granting the
decision on approval of projects shall decide the investor appointment; in case
of appointment of an investor in the project prescribed at Point a of Clause 1
of this Article, prior to appointment of the investor, the Prime Minister's
consent must be obtained upon consultation with the Ministry of National
Defense and/or the Ministry of Public Security about national defense, security
and state secret protection requirements.
Article 40. Investor selection
taking place in certain special cases
1. In case where conditions arising in a PPP
project are so specific or particular that the investor selection approaches
referred to in Article 37, 38 and 39 of this Law cannot be applied, competent
authorities shall seek the Prime Minister’s decision on the investor selection
plan.
2. Documentation submitted to the Prime Minister to
seek his decision shall include the followings:
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b) Explanation about specific or particular
conditions of a project;
c) Plan for selection of investors in special cases
shall describe the following information: investor selection steps; specific
solutions to address specific and particular characteristics of the project
which are proposed to ensure the investment efficiency of the project.
Section 3. METHODS AND
STANDARDS FOR EVALUATION OF PREQUALIFICATION OR BIDDING DOCUMENTS
Article 41. Methods and
standards for evaluation of prequalification applications
1. Evaluation of an application for
prequalification shall be made by employing the scoring method according to the
100 or 1,000-point grading system referred to in the application for
prequalification. The scoring method shall be developed based on the evaluation
standards for prequalification applications as specified in Clause 2 of this
Article.
2. Standards for evaluation of pre-qualification
applications shall include the following basic details:
a) Financial - commercial capacity and experience,
capital arrangement capability; experience in execution of similar projects.
In the case of a partnership, the investor’s
capability and experience shall be determined by the aggregate capacity and
experience of member partners; any investor as the head of a partnership must
contribute at least 30% of their capital to the partnership’s equity while each
member partner must contribute at least 15% of their capital to the
partnership’s equity;
b) Preliminary project execution plan and project
implementation commitment;
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Article 42. Methods and
standards for evaluation of bidding documents
1. Capability and experience evaluation shall be
made according to the 100 or 1,000-point grading system referred to in the
bidding documentation. Standards for capability and experience evaluation shall
be subject to provisions laid down in clause 2 of Article 41 herein.
2. The technical evaluation shall be made based on
the 100 or 1,000-point grading system or the pass/fail grading system
prescribed in the invitation for bid. The technical evaluation standards shall
comprise project quality, capacity and performance standards; project
operation, management, business, maintenance and care standards; environmental
and safety standards; other engineering standards.
3. Financial – commercial evaluation shall be made
according to the comparison or ranking approach specified in the invitation for
bid. The comparison and ranking approach shall be developed according to
financial – commercial evaluation standards, including one of the following
standards:
a) Standards for public product and service prices
and charges;
b) Standards for state capital used for supporting
the construction of infrastructure works and systems;
c) Standards for social and state benefits.
4. The Government shall elaborate on this Article.
Article 43. Pre-approval
inspection of investor selection results
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1. Their bidding documents are valid;
2. They satisfy capability and experience
requirements;
3. They conform to technical requirements;
4. They meet financial – commercial requirements;
5. Their bidding documents are ranked first.
Chapter IV
INCORPORATION AND
OPERATION OF PPP PROJECT ENTERPRISES; PPP CONTRACTS
Article 44. Incorporation and
operation of PPP project enterprises
1. After the decision to approve the selection
results is issued, the investor shall establish a PPP project enterprise in a
form of a limited liability company or a joint stock company that is not a
public company with the sole purpose of signing and implementing PPP contracts.
The application for enterprise registration shall contain the details prescribed
by law on enterprises and the decision on approval of investor selection
results.
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3. Apart from compliance with the provisions of
Clauses 1 and 2 of this Article, the establishment, management, operation,
dissolution, and bankruptcy of PPP project enterprises must comply with laws
pertaining to businesses or enterprises, and regulations of other relevant laws
and PPP contracts.
Article 45. Classification of
PPP contracts
1. The group of project contracts applying the
mechanism for direct collection of fees from users or underwriting for public
products and services, including:
a) BOT contract means the contract under which a
PPP project investor or enterprise is assigned the right to build and operate
infrastructure works and systems within a predetermined term; upon expiry of
such term, the PPP project investor or enterprise transfers these works or
systems to the State;
b) BTO contract means the contract under which a
PPP project investor or enterprise is assigned the right to build
infrastructure works and systems; after the construction is complete, the PPP
project investor or enterprise transfers these works or systems to the State,
and is accorded the right to operate these works or systems within a specified
period of time;
c) BOO contract means the contract under which a
PPP project investor or enterprise is assigned the right to build, own and
operate infrastructure works and systems within a predetermined term; upon
expiry of such term, the PPP project investor or enterprise terminates the
contract;
d) O&M contract means the contract under which
a PPP project investor or enterprise is assigned the right to operate and
manage part or the whole of existing infrastructure works and systems within a
predetermined term; upon expiry of such term, the PPP project investor or
enterprise terminates the contract.
2. The group of project contracts providing the
State mechanism whereby payment is made on the basis of the quality of public
products and services, including:
a) BTL contract means the contract under which a
PPP project investor or enterprise is assigned the right to build
infrastructure works or systems, and transfer them after completion; is accorded
the right to supply public products and services on the basis of operating and
exploiting these works or systems within a predetermined term; the transferee
signs a service lease and pays the PPP project investor or enterprise;
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3. Mixed contract is the contract which is the
result of combination of those contracts prescribed in Clause 1 and 2 of this
Article.
4. With respect to the projects referred to in
Point b of Clause 9 of Article 3 herein, the contract providing the mechanism
for direct collection of fees from users shall not be applied to them.
Article 46. PPP contract
documentation
1. PPP contract documentation shall comprise the
following main documents:
a) PPP contract, including general and specific
terms and conditions;
b) Appendices (if any);
c) Contract negotiation minutes;
d) Decision on approval of investor selection
results;
dd) Bidding documents and other documents
clarifying the selected investor’s bidding documents;
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2. If there is any change in any contractual terms
and conditions, parties shall need to sign appendices to the contract.
Article 47. Basics of project
execution contracts
1. A PPP contract shall contain the following
information:
a) Objectives, scale, location and schedule of
implementation of a project; time and duration of a infrastructure work or
system; the effective date of the contract; contract term;
b) Scope of and requirements concerning
engineering, technology and quality of the infrastructure work or system,
supplied public products or services;
c) Total investment; capital structure; financial
plan, including the financial arrangement plan; public product and service
prices and charges, including methods and formulas for setting or adjusting
them; state capital invested in a PPP project and the corresponding form of
management and use (if any);
d) Conditions for use of land and other natural
resources; plans to organize the construction of auxiliary works; requirements
for compensation, support and resettlement; assurance of safety and
environmental protection; force majeure cases and plans for response to force
majeure events;
dd) Responsibilities for carrying out licensing
procedures according to regulations of relevant laws; design; organization of
construction; quality inspection, supervision and management at the
construction phase; acceptance testing, settlement of investment capital and
confirmation of the completion of infrastructure works and systems; provision
of main input materials used for production and business activities of the
project;
e) Responsibilities for the operation and
commercial use of infrastructure works and systems so that public products and
services are provided in a continuous and stable manner; conditions, order and
procedures for transfer of infrastructure works and systems;
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h) Plans for response to the circumstances
substantially changing in accordance with civil law to continue to perform the
contract; response, compensation and punitive measures in case one of the
contracting parties breaches the contract;
i) Responsibilities of parties related to
information security; reporting regime; provision of information, related
documents and explanation about the contract performance at the request of
competent authorities, inspection, examination, auditing, and supervising
authorities;
k) Principles and conditions for amendment,
supplementation and termination of the contract before its expiry; assignment
of rights and obligations of the parties; the lender's rights; procedures,
rights and obligations of the parties upon contract discharge;
l) Investment incentives, guarantees, plans to
share the revenue increase and decrease, assurance of balancing of foreign
currencies, types of insurance (if any);
m) Laws governing the contract and dispute
resolution mechanism.
2. PPP contract must specify rights and obligations
of the contracting authority, the investor and the PPP project enterprise.
3. The Government shall regulate sample contracts
applicable to types of contracts specified in Article 45 of this Law.
Article 48. PPP contract
performance security
1. The PPP project enterprise must provide a
contract performance security before the effective date of the contract.
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3. The validity period of the contract performance
security shall start on the effective date of the contract and end on the date
on which the PPP project enterprise completes its contractual obligations
during the stage of construction of infrastructure work or system under the
contract; In cases where it is necessary to prolong the construction period,
the investor must extend the validity period of the contract performance security
accordingly.
4. The PPP project enterprise shall be entitled to
return or release the contract performance security after discharge of their
contractual obligation to build the construction work or infrastructure system,
unless otherwise prescribed in Clause 5 of this Article; As for O&M
contracts, the contract performance security shall be returned or released
after the investor completes their contractual obligations.
5. The PPP project enterprise shall not be entitled
to the return or release of the contract performance security in the following
cases:
a) Refuse to execute the contract after contract
conclusion;
b) Violate agreement made in the contract to the
extent of the early termination of the contract as prescribed at Point d of
Clause 2 of Article 52 in this Law;
c) Fail to extend the validity period of the
contract performance security under the regulations laid down in clause 3 of
this Article.
6. The Government shall elaborate on the ratio of
value of the contract performance security under clause 2 of this Article.
Article 49. Conclusion of PPP
project execution contracts
1. A contract shall be signed on the basis of a
decision on approval of investor selection result, contract negotiation result
or bidding document that remains valid, or investor's capability information
which is updated at the time of contract conclusion and the invitation for bid.
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3. As for investors in partnerships, all member
partners must directly bear their signatures and stamps (if any) into the
contract.
Article 50. Modification or
revision of PPP contracts
1. Modification of a PPP project contract must be
specified in the contract and considered by the contracting parties in one of
the following cases:
a) The project is affected by force majeure events
or when circumstances change substantially or when there is any change in
relevant planning, policies or laws that seriously affects the technical and
financial plans of the project, prices and charges of public products and
services supplied by the PPP project enterprise;
b) One of the contracting parties is subject to
certain adjustment;
c) The term of the PPP contract provided in clause
2 and 3 of Article 51 herein is subject to any adjustment;
d) A PPP contract falls into other cases where
modification or revision thereof is required under the authority of the
contracting authority provided that such modification does not result in any
change in the investment policy, and brings about better financial and
socio-economic efficiency for the project.
2. The steps in modifying a PPP contract shall be
specified as follows:
a) One of the contracting parties submits a written
request for modification or revision of the contract, clarifying cases in which
modification or revision of the contract is accepted;
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c) The contracting parties need to sign appendices
to the contract that describe amendments or modifications.
3. With respect to the modification of a contract
leads to a change in the objectives, location, size and type of PPP contract,
if an increase in total investment by 10% or more or the value of state capital
invested in the PPP project is made after contingency funds are used up,
investment policy adjustment procedures must be carried out as prescribed in
Article 18 of this Law before signing the contract annexure for amendments or
modifications.
Article 51. PPP contract term
1. The contract term shall be agreed upon between
parties based on the decision on approval of investor selection results.
2. The contracting parties may adjust the contract
term on condition that the aggregate contract term, including the adjustment
period, does not exceed the land allocation or lease term in accordance with
the land law, and such adjustment does not change other contents of the project
investment policy decision.
3. Cases in which adjustment in the contract term
is required, including:
a) There is any delay in completing the
construction phase or any interruption in the operation of the construction
work or infrastructure system due to any substantial change in circumstances as
provided in the civil law to the extent that it goes beyond the reasonable
control of a contracting party;
b) The project is suspended by the competent
authority or other competent authority of the State, except as it is suspended
through the PPP project enterprise’s fault;
c) As additional costs incurred due to the
competent authority’s request have not yet been determined by the contracting
authority after the contract conclusion, in case of failure to obtain
permission for such extension, the PPP project enterprise cannot recover these
costs;
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dd) The revenue increases by at least 125% compared
to the revenue inscribed in the financial plan specified in the contract.
Article 52. PPP contract
termination
1. The contract termination shall comply with the
provisions of the contract, and may serve as a basis for the contract
discharge.
2. Termination of a PPP project contract before its
expiry (briefly called early termination) only occurs in the following cases:
a) If the project is affected by a force majeure
event, despite all remedial actions taken by parties, the continued execution
of the PPP contract will not be ensured;
b) Early termination occurs to gain the state
interests; meet the requirements concerning national defence, security and
state secrets;
c) The PPP project enterprise loses its solvency in
accordance with the law on bankruptcy
d) Either party seriously defaults on contractual
obligations;
dd) Other cases appear due to substantial changes
in circumstances in accordance with civil law to the extent that the
contracting parties agree to terminate the contract.
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4. In case of termination of a PPP contract before
its expiry, the contracting authority shall perform the following tasks:
a) Cooperating with the lender in selecting an
alternative investor to sign a new PPP contract;
b) Pending the implementation of the response plan,
if an alternative investor has not been selected yet, the contracting authority
shall be responsible for the safety and anti-deterioration of the work or
infrastructure system with respect to the project under construction; the
operation and commercial use of the work or infrastructure system to ensure the
continuity of the provision of public products and services with respect to the
project in operation.
5. The authority entering into a contract to
perform the tasks specified in Clause 4 of this Article may use the funding sources
specified in Clause 3 of Article 73 in this Law and other lawful income.
6. In case where the PPP contract is terminated
before expiration of the term specified at Point b of Clause 2 of this Article
or due to the contracting authority’s serious default on the performance of the
contractual obligations specified at Point d of Clause 2 of this Article, funds
for acquisition of the PPP project enterprise or compensation for contract
termination shall be allocated from the state capital according to the provisions
of law; In case the termination occurs at the investor's fault specified at
Points c and d of Clause 2 of this Article, the investor shall be responsible
for transferring shares or contributed capital portions to the alternative
investor.
7. The Government shall elaborate on this Article.
Article 53. Lender’s rights
1. During the process of execution of a PPP
contract, the lender's rights shall be exercised according to the parties'
agreements made in the credit facility contract, the PPP contract and
regulations of relevant laws.
2. In case where a PPP contract is terminated
before expiration and an alternative investor is selected, the lender shall
cooperate with the contracting authority to select a substitute investor under
the provisions of Point b of Clause 1 of Article 39 herein.
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Article 54. Transfer of
shares, contributed capital portions, rights and obligations of PPP contracts
1. In case where the PPP project enterprise is
established by an investor in the partnership, member partners shall have the
rights to transfer shares or contributed capital portions to each other, but
must ensure the minimum equity ratio of each member as prescribed in Point a of
Clause 2 of Article 41 herein.
2. Investors shall have the right to transfer
shares or contributed capital portions to other investors after completion of
the construction of works with respect to those projects with construction
components, or after switching to the operation stage with respect to those
projects without construction components.
3. The transfer stipulated in Clause 1 and 2 of
this Article must satisfy the following requirements:
a) Such transfer does not lead to any change in
execution of a PPP contract already in effect;
b) Such transfer must comply with regulations of
relevant laws;
c) Such transfer is accepted by the contracting
authority;
d) Such transfer is subject to agreement between
the lender and members of a partnership with regard to partnership investors.
4. The transferee must satisfy the following
requirements:
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b) They must have financial and administrative
capacity to execute PPP contracts and other related contracts;
c) They are committed to continuing to carry out
the rights and obligations of the transferor in accordance with the PPP
contract and other related contracts.
5. In case where the transfer specified in Clause 1
and 2 of this Article changes the contents of enterprise registration, the PPP
project enterprise must comply with relevant provisions of the enterprise law.
Article 55. Legislation
governing PPP contracts
PPP project contract, its annexure and other
relevant documents signed between a Vietnamese state authority and a PPP
project investor or enterprise shall be governed under Vietnamese legislation.
With respect to the matters that are not regulated under Vietnamese law, the
parties may reach specific agreements in a PPP contract on condition that such
agreements are not in breach of basic rules of Vietnamese law.
Chapter V
IMPLEMENTATION OF PPP
CONTRACTS
Section 1. BUILDING OF WORKS
AND INFRASTRUCTURE SYSTEMS
Article 56. Preparation of
building sites
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Article 57. Formulation,
assessment and approval of the design following the basis design and cost
estimate
1. Based on the feasibility study report and the
provisions of the PPP contract, the PPP project enterprise must perform one or
more of the following tasks:
a) Making the construction design after the basic
design. With respect to sub-projects or items using public investment capital,
making the cost estimate and sending it to the construction-specialized
authority in accordance with law on construction for assessment purposes;
b) Making the design. With respect to sub-projects
or items using public investment capital, making the cost estimate and sending
it to the specialized authority in accordance with other law for assessment
purposes.
2. PPP project enterprises shall approve designs
and cost estimates specified in Clause 1 of this Article and send the following
documents to the contracting authority for monitoring and supervisory purposes:
a) Approved design documents and cost estimates;
b) Design and cost estimate assessment
documentation of specialized authorities.
Article 58. Selection of
contractors bidding for execution of PPP projects
PPP project enterprises must adopt uniform
regulations on contractor selection to be applied to enterprises according to
the following principles:
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2. Ensure these regulations do not affect or
negatively impact national defense and security, state secrets, national or
community interests and interests of competent authorities and contracting
authorities;
3. The selected contractor must satisfy all
capacity and experience requirements, and have feasible solutions for the
execution of the package or project; take responsibility for fulfillment of
quality and progress requirements of the package under the contract signed with
the PPP project enterprise, including liability clauses by which the selected
contractor are bound if the quality of the construction work or infrastructure
system does not meet requirements set out in the PPP contract. PPP project
enterprise shall be responsible for the quality and progress of implementation
of the project;
4. Prefer domestic contractors bidding for the work
that domestic contractors can undertake;
5. Only hire foreign workers if domestic workers
are unqualified.
Article 59. Management and
supervision of quality of construction works and infrastructure systems
1. The PPP project enterprise shall be responsible
for the management and supervision of the quality, and the acceptance testing
of the entire work and infrastructure system in accordance with law.
2. In the course of development and construction of
the contractual work or infrastructure system, the contracting authority shall
assume the following responsibilities:
a) Conduct the inspection of the PPP project
enterprise's supervision of the process for construction of works and
infrastructure systems;
b) Conduct the inspection of compliance with
engineering and construction procedures, standards and regulations for works
and infrastructure systems;
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d) Request the PPP project enterprise to demand the
contractor’s adjustment or suspension of construction when seeing that the
quality of the work fails to conform to requirements.
3. The contracting authority may hire a consultant
to assist in performing their responsibilities specified in Clause 2 of this
Article.
4. Costs for hiring quality accreditation
consultants and other related costs shall be subject to the following
regulations:
a) In case where the contracting authority
concludes that the quality of the work or infrastructure system fails to meet
the requirements set forth in the contract through the fault of PPP project
enterprise or the contractor, the PPP project enterprise shall be responsible
for payment of these costs;
b) In case where the contracting authority
concludes that the quality of the work or infrastructure system meets the
requirements set forth in the contract, or concludes that it does not meet the
requirements set out in the contract without fault of the PPP project
enterprise or the contractor, the contracting authority shall use the project
implementation expenses specified in Clause 3 of Article 73 in this Law for
payment.
Article 60. Settlement of
expenses for investment in works and infrastructure systems
1. After completing the work or infrastructure
system, the contracting authority shall carry out the settlement of public
capital invested in the PPP project as follows:
a) In case where public capital invested in a PPP
project is managed and used in accordance with Point a of Clause 5 of Article
70 and Clause 2 of Article 72 of this Law, the contracting authority and the
PPP project enterprise shall carry out the settlement of public capital
invested in the PPP project according to the provisions of law in the same
manner as public investment projects;
b) In case where public capital invested in a PPP
project is managed and used in accordance with Point b of Clause 5 of Article
70 herein, the contracting authority shall make a financial statement of
disbursements to the PPP project enterprise audited by an auditing body as a
basis for settlement of capital invested in the PPP investment project. Public
capital invested in a PPP project which is qualified for settlement must not
exceed the state capital specified in the contract.
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3. The contracting authority shall reach an
agreement with the PPP project enterprise in the contract on the selection of a
qualified and experienced independent auditing organization to conduct the
audit of capital invested in construction of the work or infrastructure system.
4. The Government shall elaborate on this Article.
Article 61. Certification of
completion of a construction work and infrastructure system
1. After completion, the PPP project enterprise
shall undertake the acceptance testing of the work or infrastructure system in
accordance with construction law or other relevant legislation as a basis to
prepare request documentation for completion certification.
2. Based on the documentation submitted to request
the certification of completion of the work or infrastructure system specified
in Clause 1 of this Article, the contracting authority shall check before
granting the certificate of completion to the PPP project enterprise. In case
where the PPP project enterprise completes the construction phase ahead of time
or saves investment costs, the certification of completion of the work or
infrastructure system shall not affect the contract term or the rates of prices
and charges of public products and services defined in the contract.
3. The Government shall regulate documentation
requirements and time limit for certification of completion of works and
infrastructure systems.
Section 2. MANAGEMENT AND
OPERATION OF WORKS AND INFRASTRUCTURE SYSTEMS
Article 62. PPP project
management
The management of a construction work or
infrastructure system and other assets during the period of implementation of
PPP projects shall comply with the provisions of this Law, other regulations of
relevant laws and terms and conditions of PPP contracts.
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1. Except for the case specified in Clause 2 of
this Article, PPP project enterprises may operate infrastructure systems from
the date on which the contracting authority certifies their completion as
prescribed in Article 61 of this Law.
2. As for PPP projects using O&M contracts, PPP
project enterprises shall operate works or infrastructure systems from the
effective date of PPP contracts.
Article 64. Provision of
public products and services
1. During the period of operation of works or infrastructure
systems, PPP project enterprises shall assume the following responsibilities:
a) Implement the rights and obligations to provide
public products and services, and other agreements made in the contract;
b) Ensure the use of works and infrastructure
systems according to contractual terms and conditions;
c) Equally treat all users of public products and
services provided by PPP project enterprises; prohibit refusing to provide
public products or services to users;
d) Receive and promptly handle user’s opinions
about the quality of public products and services provided by PPP project
enterprises;
dd) Periodically repair and maintain, and ensure
the safe operation of works or infrastructure systems according to the design
or process agreed upon in the contract.
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Article 65. Public product and
service prices and charges
1. Prices or charges of public products and
services, conditions, procedures and adjustments shall be specified in the PPP
contract according to the principle of ensuring the interests of the investor,
the PPP project enterprise, the user and the State, providing investors or PPP
project enterprises facilitation to recover capital and make profits. The
pricing plan and price bracket of public products and services according to the
term of a PPP project contract must specify the starting price and the price
varying in specific periods to ensure accuracy, completeness, public disclosure
and transparency of price factors.
2. The application of measures to support public
product and service prices and charges shall comply with the provisions of law.
3. The agreement on and adjustment of public
product and service prices and charges for each period in a PPP project
contract must comply with the law on prices and charges.
4. If there is any change in prices and charges of
public products and services, the dissemination of information about such
adjustment shall be regulated as follows:
a) No longer than 10 days before the application of
adjusted prices and charges of public products or services, contracting
authorities shall make public disclosure of information as prescribed in
Article 9 of this Law;
b) PPP project enterprises shall list adjusted
prices and charges of public products and services at the locations where
public products and services are provided in accordance with the law on prices
and charges.
Article 66. Supervision of
quality of public products and services
1. PPP project enterprises must ensure and take
responsibility for the quality of public products and services under PPP
contracts.
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3. In case where the quality of public products and
services does not meet the requirements under a PPP contract, the contracting
authority shall request the PPP project enterprise to take remedial action
within the time limit specified in the contract; in case the PPP project
enterprise’s failure to take, or delay in taking, remedial action, it shall
apply measures to handle violations in the contract.
4. The contracting authority may hire a consultant
to assist in performing their responsibilities specified in Clause 2 of this
Article. Consultant hiring costs shall be paid under the provisions of Clause 4
of Article 59 in this Law.
Section 3. TRANSFER OF
CONSTRUCTION WORKS OR INFRASTRUCTURE SYSTEMS, AND DISCHARGE OF PPP CONTRACTS
Article 67. Transfer of
construction works and infrastructure systems
1. The transfer of construction works and
infrastructure systems, and the determination of the quality and value of
construction works and infrastructure systems prior to the transfer shall
comply with the terms and conditions of PPP contracts. The residual value of
the transferred work and infrastructure system shall be incorporated into state
assets and state budget in accordance with the law on management and use of
public assets and state budget.
2. Procedures and processes for disposal and
management of the transferred property shall be subject to provisions laid down
in law on management and use of public assets.
3. The Government shall elaborate on clause 2 of
this Article.
Article 68. Discharge of PPP
contracts
1. PPP contracts shall be discharged as follows:
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b) In case where a contract is terminated before
expiry as specified in Clause 2 of Article 52 of this Law, the contracting
parties shall certify the completed obligations and the parties' liabilities
for the unfinished work.
2. The time limit for discharge of a PPP contract
shall be agreed upon by the contracting parties, but not exceeding 180 days
from the date on which the contracting parties fulfill their contractual
obligations or the date on which the parties agree to terminate the contract
before its expiry.
3. In case where costs have incurred when the
contract is discharged as prescribed in Clause 1 of this Article, the discharge
of the contract must include the determination of the obligations of the
contracting authority and the PPP project enterprise to the costs incurred.
Chapter VI
PROJECT FUNDING
Section 1. STATE CAPITAL
INVESTED IN A PPP PROJECT
Article 69. Use of state capital
invested in a PPP project
1. State capital may be used for the following
purposes:
a) Supporting the building of construction works
and infrastructure systems as part of a PPP project;
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c) Paying costs of site clearance, site clearance
compensation, support, resettlement; costs of support for construction of
temporary works;
d) Compensating for the reduced revenue;
dd) Covering costs and expenses incurred from performing
activities by competent authorities, contracting authorities, PPP project
preparation units, and bid solicitors within their duties as specified in
Article 11 of this Law;
e) Covering costs and expenses of PPP Project
Assessment Boards and its subordinate units assigned to conduct the evaluation
of PPP projects.
2. The proportion of state capital participating in
a PPP project as prescribed at Points a and c of Clause 1 of this Article must
not exceed 50% of the project's total investment. As for projects with many
component projects, including those component projects developed according to
the PPP investment approach, the state capital ratio specified in this Clause
shall be determined in proportion to the total investment in such component
projects.
3. The Government shall elaborate on the use and
management of state capital invested in PPP projects.
Article 70. State capital used
for supporting the building of construction works and infrastructure systems
1. State capital used for supporting the building
of construction works or infrastructure systems may be used for supporting
project implementation during the construction phase in order to increase the
financial efficiency of the project.
2. The ratio of state capital used for supporting
the building of construction works or infrastructure systems belonging to PPP
projects shall be determined on the basis of the preliminary financial plan
included in the pre-feasibility study report when an investment policy is
granted.
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4. State capital used for supporting the building
of construction works and infrastructure systems shall be allocated from the
following funding sources:
a) Public investment capital prescribed under law
on public investment;
b) Value of public assets prescribed under law on
use and management of public assets.
5. Use and management of State capital used for
supporting the building of construction works and infrastructure systems shall
be allocated from sources of public investment capital according to one of the
following approaches:
a) Splitting a PPP project into subprojects. The
use and management of state capital shall be subject to laws on public
investment;
b) Aligning state capital with specific items
according to the rates, value, progress and conditions specified under the
contract.
Article 71. State capital used
for paying PPP project enterprises supplying public products and services
State capital-funded payments to PPP project
enterprises which are used in BTL or BLT contracts on the basis of the quality
of public products and services shall be allocated from state capital invested
in PPP projects and other legal capital according to the law.
Article 72. State capital paid
for compensation, site clearance, support, resettlement; support for
construction of temporary works
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2. Based on the size and characteristics of each
project, the contracting authority shall consider separating the state capital
used for compensation, site clearance, support and resettlement; support for
the construction of temporary works into component projects or sub-projects, in
compliance with the law on public investment and the law on land.
Article 73. Costs of competent
authorities, contracting authorities, PPP project preparation units, bid
solicitors, PPP project assessment boards, units assigned to evaluate PPP
projects
1. Project preparation costs of competent
authorities, PPP project preparation units; expenses for the evaluation
conducted by PPP Project Assessment Boards and the units assigned to the task
of evaluating PPP projects; expenses for organization of the investor selection
or signing of contracts by competent authorities or bid solicitors shall be
covered by public investment capital, other lawful capital sources, and shall
be included in the total investment in each project.
2. The selected investor shall be responsible for
reimbursing expenses specified in Clause 1 of this Article to the state budget
in accordance with the law on state budget or legal capital used for the
project preparation.
3. Expenses for project implementation after
signing a contract by a competent authority or a contracting authority shall be
covered by their regular capital.
Article 74. Budgeting for
public investment capital to be used in a PPP project
Budgeting for public investment capital to be used
in a PPP project shall be subject to the following regulations:
1. Based on an investment policy decided by a
competent authority, public investment capital used in a PPP project shall be
incorporated in the medium-term public investment budget plan;
2. Based on the medium-term public investment plan,
the feasibility study report approved by a competent authority, and results of
investor selection, public investment capital used in a PPP project shall be
integrated into the annual public investment plan;
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4. In case where a PPP project developed and
executed under a BTL contract or BLT contract uses public investment capital to
pay a PPP project enterprise, integration of public investment capital into the
real annual and medium-term public investment plan shall be subject to the
provisions of Clause 1 and 2 of this Article. Based on the PPP contract term,
the public investment capital share may be dispensed over the next medium
terms.
Article 75. Estimation of
regular expenditures and legitimate revenues retained regular expenditures of
state regulatory authorities and public service units
1. Based on an investment policy decision, the
feasibility study report approved by the competent authority and results of
investor selection, the contracting authority shall prepare the annual budget
estimate of regular capital and legitimate revenues retained as regular
expenditures of state authorities and public service units to pay PPP project
enterprises in accordance with the law on state budget.
2. For regular expenditures specified in Clause 3
of Article 73 in this Law, competent authorities and contracting authorities
shall make an annual budget estimate, submitting it to competent authorities to
seek their approval in accordance with law on state budget.
Section 2. CAPITAL USED FOR
IMPLEMENTATION OF PPP PROJECTS BY INVESTORS OR PPP PROJECT ENTERPRISES
Article 76. Arrangement of
finances for execution of PPP projects
1. Investors and PPP project enterprises shall be
responsible for contributing equity capital, raising loan capital and other
legal funds to implement projects under terms and conditions of PPP contracts.
Total amount borrowed through various lending forms must not exceed total loan
amount specified in a PPP contract.
2. Within 12 months from the contract signing date,
the investor and PPP project enterprise must complete the financial
arrangement; as for projects subject to investment policy decisions of the
National Assembly or the Prime Minister, this time limit may be extended, but
not exceeding 18 months.
3. Actions to be taken in the event that the
investor or the PPP project enterprise fail to make financial arrangement
within the time limit specified in Clause 2 of this Article must be specified
in the invitation for bid.
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1. Investor's equity contribution must be at least
15% of total investment in a project, excluding state capital specified in
Article 70 and 72 of this Law.
2. Investors must make equity contribution
according to the schedule agreed upon in the PPP contract.
Article 78. Issuance or
offering of corporate bonds of PPP project enterprises
1. PPP project enterprises may issue and buy back
separate bonds they have issued under the provisions of this Law, the law on
enterprises and securities to raise capital for the implementation of PPP
projects; shall be prohibited from the private issuance of convertible bonds
and warrant-linked bonds.
2. The issuance of bonds as per Clause 1 of this
Article must satisfy the following conditions:
a) The amount of capital raised through the bond
issue shall not exceed the value of the loan amount determined in the PPP
contract;
b) Funds raised through the bond issuance cannot be
used for any other purpose than the project implementation under PPP project
contracts or for the purpose of restructuring of corporate debts;
c) PPP project enterprises must open an escrow
account to receive money from bond purchases. Disbursement of funds
acquired from issuance of bonds shall be subject to point b of this clause.
3. If a PPP project enterprise has already operated
for less than 1 year, when issuing bonds as prescribed in Clause 1 of this
Article, it shall be exempt from the requirement concerning submission of the
financial statement of the year preceding the year of issuance which is audited
according to regulations of the law on enterprises.
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Chapter VII
INVESTMENT INCENTIVE AND
GUARANTEE
Article 79. Investment incentive
Investors and PPP project enterprises shall be
entitled to tax, land use, land rental and other incentives in accordance with
the law on taxes, land, investment and other provisions of relevant laws.
Article 80. Investment
guarantee
1. Investors and PPP project enterprises shall be
entitled to investment guarantees in accordance with this Law and investment
legislation.
2. Guarantee for the right to access land, rights
to use land and other public property shall be prescribed as follows:
a) PPP project enterprises shall be assigned land
or leased land by the State or permitted to use other public assets for the
performance of PPP contracts in accordance with the law on land and the law on
management and use of public assets;
b) The purpose of using land shall be protected
from against any change that may arise during the entire contract term, even if
the lender exercises their rights prescribed in Article 53 of this Law.
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a) PPP project enterprises may use public works and
other auxiliary ones for the purposes of implementation of projects in
accordance with laws;
b) In case where there is any scarcity of public
services or any limitation of users of public facilities, PPP project
enterprises shall be given priority to provide public services or shall be
preferred to have the right to use public works for the project implementation
purpose;
c) The competent authority shall be responsible for
assisting PPP project enterprises in carrying out the necessary procedures so
that these enterprises can be prioritized to have access to public services and
public works.
4. Guarantee for the right to mortgage property,
the right to commercially operate construction works and infrastructure systems
shall be subject to the following regulations:
a) PPP project enterprises may provide their
assets, their rights to use land and their rights to commercially operate
construction works and infrastructure systems as a mortgage provided to lenders
in accordance with land and civil law. The mortgage period must not exceed the
contract term, unless otherwise agreed in the contract;
b) A mortgage agreement on the property, the right
to operate infrastructure work or system must be made in writing between the
lender and the contracting party;
c) Mortgaging assets or the rights to commercially
operate construction works or infrastructure systems must not affect the
objectives, scale, technical standards, project implementation schedule, other
terms and conditions as agreed upon in the contract.
5. Contract signing authorities and competent
authorities shall be responsible for cooperating with local authorities of the
places where PPP projects are located to ensure security, order and safety for
people and property of PPP project enterprises and contractors in the process
of implementing PPP projects.
Article 81. Foreign currency
balancing guarantee for significant PPP projects
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2. If PPP project enterprises implementing the
projects specified in Clause 1 of this Article have exercised the right to buy
foreign currency to meet the needs of current, capital and other transactions,
or transfer capital, profits, or other liquidated investments remitted abroad
in accordance with the law on foreign exchange management, and the foreign
currency market cannot, however, accommodate their legal foreign currency
demands, then they shall be entitled to use no more than 30% of Vietnamese-dong
revenues generated from each project after deduction of Vietnamese-dong
spending amounts as a guarantee for foreign currency balancing.
Article 82. Mechanism for
sharing of increased and reduced revenues
1. When the actual revenue is 125% higher than the
revenue specified in the financial plan under a PPP project contract, the
investor and the PPP project enterprise will share with the State 50% of the
difference between the actual revenue and 125% of revenue in the financial
plan. The increased revenue may be shared after adjustment in the prices and
costs of public products and services or the PPP contract term according to the
provisions of Article 50, 51 and 65 of this Law and must be audited by the
State Audit.
2. When the actual revenue is 75% lower than the
revenue specified in the financial plan under a PPP project contract, the State
will share with the investor or PPP project enterprise 50% of the difference
between 75% of revenue in the financial plan and the actual revenue. Sharing of
reduced revenues may occur if the following requirements are satisfied:
a) Projects are developed and executed under BOT,
BTO or BOO contracts;
b) Changes in relevant planning, policies and laws
result in a reduction in revenue;
c) Measures to adjust prices and charges of public
products and services, and PPP contract terms, according to the provisions of
Articles 50, 51 and 65 of this Law, have been fully taken, but the minimum
revenue requirement of 75% has not been met yet;
d) The reduced revenue has been audited by the
State Audit.
3. The mechanism for sharing of the reduced revenue
specified in Clause 2 of this Article must be determined according to the
decision on investment policy. Expenses for dealing with the revenue reduction
sharing mechanism shall be covered by the central government’s budget reserve
with respect to the projects falling under the authority to grant investment
policy decisions of the National Assembly, the Prime Minister, Ministers, heads
of central agencies or other bodies, or by the local government’s budget
reserve with respect to the projects falling under the authority to grant
investment policy decisions of provincial People's Councils.
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5. The Government shall elaborate on this Article.
Chapter VIII
EXAMINATION, INSPECTION,
STATE AUDIT AND OVERSIGHT OF PPP INVESTMENTS
Section 1. EXAMINATION,
INSPECTION AND STATE AUDIT OF PPP INVESTMENTS
Article 83. Examination of PPP
investments
1. Subject matters of the examination of PPP
investments shall include:
a) Issuance of instructional documents regarding
PPP investment approach by competent authorities;
b) Investment preparation; organization of investor
selection activities; conclusion and execution of contracts;
c) Other activities related to PPP investment.
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Article 84. Inspection of PPP
investments
1. The inspection of PPP investments is a
specialized inspection carried out in accordance with the inspection law.
2. The inspection of PPP investments shall be aimed
at competent authorities, contracting authorities, investors, PPP project
enterprises and entities, organizations and individuals involved in PPP investment
activities regulated under this Law.
Article 85. State audit of PPP
investments
1. Auditing the management and use of public
finance, public assets and activities related to the management and use of
public finance and public assets invested in PPP projects in accordance with
the law on state audit.
2. Auditing the process for implementation of the
mechanism for sharing of increased and reduced revenues in accordance with
provisions laid down in Article 82 herein.
3. Auditing all values of property of PPP projects
upon transfer thereof to the State.
Section 2. OVERSIGHT OF PPP
INVESTMENTS
Article 86. Oversight carried
out by State regulatory authorities in charge of PPP investments
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2. State regulatory authorities in charge of PPP
investments at the local level shall supervise the processes for implementation
of PPP projects prescribed at Point d of Clause 3 of Article 4 of this Law.
Article 87. Overseen subjects
1. Invitation for bid.
2. Investor section results.
3. Implementation of PPP contracts.
4. Results of inspection of quality of construction
works and infrastructure systems under the provisions of point c of clause 2 of
Article 59 herein.
5. Results of assessment of quality of public
products and services prescribed under the provisions of clause 2 of Article 66
herein.
6. Other matters to be overseen at the request of
the National Assembly or the Prime Minister in the cases specified in Clause 1
of Article 86 of this Law, or of the provincial People's Councils in the cases
specified in Clause 2 of Article 86 of the Law.
Article 88. Oversight by
Vietnam Fatherland Front and community
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Chapter IX
DUTIES, POWERS AND
RESPONSIBILITIES OF STATE REGULATORY AUTHORITIES FOR PPP INVESTMENTS
Article 89. Duties and powers
of the Government and the Prime Minister
1. The Government shall have the following rights
and responsibilities:
a) Carry out the uniform state management of PPP
investments;
b) Issue, within their jurisdiction, or request
competent authorities to issue, legislative documents regarding PPP
investments;
c) Examine, inspect and supervise the
implementation of PPP investments.
2. The Government shall have the following duties
and powers:
b) Issue, within their jurisdiction, legislative
documents regarding PPP investments;
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Article 90. Duties and powers
of the Ministry of Planning and Investment
1. Perform the functions of an authority vested
with powers to manage PPP investments at the central level, take responsibility
to the Government for the state management of PPP investment nationwide.
2. Issue, within their jurisdiction, or request
competent authorities to issue, legislative documents regarding PPP
investments.
3. Take charge of, and cooperate with competent
authorities in, carrying out the examination, inspection and supervision;
annually synthesize and evaluate the implementation of PPP projects nationwide.
4. Building and managing communication systems and
databases regarding PPP investment activities.
5. Implement other duties and powers as stipulated
by law.
Article 91. Duties and powers
of the Ministry of Finance
1. Issue, within their jurisdiction, or request
competent authorities to issue, legislative documents regarding financial
mechanisms to be applied to PPP investments.
2. Take charge of formulating and implementing the
mechanism for sharing of the reduced or increased revenues arising from the
projects falling under the investment policy decision-making competence of the
National Assembly, the Prime Minister, Ministers, Heads of central or other
authorities.
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Article 92. Duties and powers
of Ministries, central and other authorities
1. Carry out the management of and guidance on PPP
investments falling within their remit.
2. Implement responsibilities of competent
authorities specified in Article 94 of this Law with respect to PPP projects
under their jurisdiction.
3. On an annual basis, synthesize, evaluate and
report on the implementation of PPP projects falling within their remit.
4. Implement other duties and powers as stipulated
by law.
Article 93. Duties and powers
of provincial People’s Committees
1. Perform the functions of an authority accorded
the state management of PPP investments at their localities.
2. Perform responsibilities of competent
authorities specified in Article 94 of this Law for PPP projects falling under
their jurisdiction; decide to terminate or suspend PPP contracts for projects
falling under the authority to issue investment policy decisions of provincial
People's Councils.
3. On an annual basis, synthesize, evaluate and
report on the implementation of PPP projects falling within their remit.
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5. Implement other duties and powers as stipulated
by law.
Article 94. Responsibilities
of competent authorities
1. Undertake the preparation of pre-feasibility
study reports and feasibility study reports for PPP projects, the selection of
investors, negotiation and conclusion of PPP contracts according to their
competence specified in this Law.
2. Cancel or suspend the bids, refuse to recognize
the results of investor selection or declare that decisions of bid solicitors
are null and void when detecting any violation of the law on PPP investment,
investor selection or other relevant laws.
3. Decide to terminate or suspend PPP contracts for
projects falling within their authority to issue investment policy decisions in
accordance with this Law.
4. Request bid solicitors and contracting
authorities to provide documents and records necessary for the examination,
inspection, supervision, monitoring; deal with petitions and sanction PPP
investment-related violations.
5. Pay compensation in accordance with laws.
6. Give explanations about the implementation of
the provisions of this Article at the request of superior authorities,
examination, inspection, auditing, supervision or state regulatory authorities
in charge of PPP investment affairs.
7. Publicize information about PPP projects;
periodically report to central regulatory authorities in charge of PPP
investment affairs on the implementation of PPP projects under their
jurisdiction.
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Chapter X
HANDLING OF PETITIONS,
SETTLEMENT OF DISPUTES AND HANDLING OF VIOLATIONS
Article 95. Handling of
petitions arising from investor selection activities
1. If there are grounds for presuming that their
legitimate rights and interests are affected, investors shall have the
following rights:
a) Submit petitions regarding investor selection
process and results to bid solicitors and competent authorities according to
the petition settlement process specified in Article 96 of this Law;
b) Initiate Court proceedings within the statute of
limitations in accordance with civil law.
2. The bid solicitor or competent authority shall
not consider settling the petition if the investor has initiated the court
proceedings; where the case is considered for settlement according to the
process specified in Article 96 of this Law, the authority currently handling
the petition shall notify the termination of the consideration and settlement
of the petition.
Article 96. Procedures for handling
of petitions arising from investor selection activities
1. Procedures for settlement of petitions about
issues arising in the process of selection of investors shall be subject to the
following regulations:
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b) The bid solicitor must send a written document
stating settlement of the petition to the investor within 07 working days from
the date of receipt of the written petition from the investor;
c) In case where the bid solicitor does not have a
written document stating settlement of the petition or the investor disagrees
about petition settlement results, the investor shall have the right to send
the petition to the competent authority within 05 working days from the
deadline for sending their reply or the date of receipt of the bid solicitor's
written document on settlement of the petition;
d) The competent authority must send a written document
stating settlement of the petition to the investor within 07 working days of
receipt of the written petition from the investor.
2. Procedures for settlement of petitions
pertaining to investor selection results shall be subject to the following
regulations:
a) The investor must send a written petition to the
bid solicitor within 10 working days of receipt of the notification of investor
selection results;
b) The bid solicitor must send a written document
stating settlement of the petition to the investor within 15 working days of
receipt of the written petition from the investor;
c) In case where the bid solicitor does not have a
written document stating settlement of the petition or the investor disagrees
about petition settlement results, the investor shall have the right to send
the written petition to the competent authority and the standing organ of the
Petition Settlement Advisory Board within 05 working days from the deadline for
sending their reply or the date of receipt of the bid solicitor's written
document on settlement of the petition.
The central-level Petition Settlement Advisory
Board shall be established by the Minister of Planning and Investment; the
Petition Settlement Advisory Board at the Ministry, central authority, other
body level shall be established by Ministers, heads of central authorities or
other bodies; the Petition Settlement Advisory Board at the local level shall
be established by the President of the provincial People's Committee;
d) Upon receipt of the written petition, Petition
Settlement Advisory Boards shall have the right to request investors or bid
solicitors and concerned entities to provide information to consider and report
in writing to competent authorities on methods and contents of the response to
the petition within 30 days of receipt of the written petition from the
investor;
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e) The competent authority must issue the decision
on settlement of the petition regarding results of investor selection within 10
working days of receipt of the written opinion from the Petition Settlement
Advisory Board.
3. If an investor submits a petition directly to a
competent authority without compliance with the petition settlement procedures
specified in this Article, the written petition shall not be considered for
further action.
Article 97. Dispute settlement
1. Disputes between competent authorities or
contracting authorities and investors or PPP project enterprises, and disputes
between PPP project enterprises and economic organizations involved in
executing projects shall be resolved through negotiation, mediation,
arbitration or court.
2. Disputes between competent authorities,
contracting authorities and domestic investors or PPP project enterprises
established by domestic investors; disputes between domestic investors;
disputes between domestic investors or PPP project enterprises established by
domestic investors and Vietnamese economic organizations shall be resolved by
Vietnamese Arbitration or Court.
3. Disputes between competent authorities,
contracting authorities and foreign investors or PPP project enterprises
established by foreign investors shall be settled at the Vietnamese Arbitration
or the Vietnamese Court, unless otherwise agreed upon under contracts or
treaties of which the Socialist Republic of Vietnam is a member.
4. Disputes between investors, including at least
one foreign investor; disputes between investors or PPP project enterprises and
foreign organizations or individuals shall be settled at one of the following
entities and organizations:
a) Vietnamese Arbitration;
b) Vietnamese Court;
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d) International Arbitration;
dd) Arbitration established under agreements
between disputing parties’ agreement.
5. Disputes settled through arbitration prescribed
in PPP and other relevant contracts shall be deemed as commercial disputes.
Foreign arbitral awards shall be recognized and enforced in accordance with the
law on recognition and enforcement of foreign arbitration’s awards in Vietnam.
Article 98. Handling of
violations arising from PPP investments
1. Prohibit organizations and individuals that
commit acts referred to in Article 10 of this Law from participation in PPP
investments.
2. Cancel or suspend the bids, refuse to recognize
the results of investor selection or declare that decisions of competent
authorities, contracting parties or bid solicitors are null and void when
detecting any violation against this Law and other regulations of relevant
laws.
3. Cancel or suspend contracts whenever detecting
any breach of contract or regulations laid down herein and other relevant
legislation.
4. In addition to sanctions against violations
prescribed in clause 1, 2 and 3 of this Article, entities and persons
committing violations against the law on PPP investments shall be disciplined
or subject to administrative penalties or criminal legal proceedings, depending
on the nature and extent of their violations.
5. The Government shall elaborate on this Article.
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IMPLEMENTATION
PROVISIONS
Article 99. Amendments
and supplements to relevant laws
1. Amending and supplementing certain Articles of
the Law on Procurement No. 43/2013/QH13, amended or supplemented under the Law
No. 03/2016/QH14, 04/2017/QH14 and 40/2019/QH14, shall be as follows:
a) Amending and supplementing clause 3 of Article 1
as follows:
“3. Selection of the investor in implementation of
investment projects in which land is used;”;
b) Amending and supplementing clause 2 of Article 3
as follows:
“2. In case where it is necessary to select
contractors to provide input materials, fuels, substances, supplies, consulting
services or non-consulting services to ensure the continuity of production,
sale and procurement activities to maintain the regular operation of state
enterprises, enterprises must adopt regulations on contractor selection to be
uniformly applied internally on the basis of ensuring fairness, transparency
and economic efficiency.”;
c) Amending and supplementing clause 10 of Article
4 as follows:
“10. PPP project enterprise refers to an
enterprise established by an investor to serve the purpose of executing PPP
projects where land is used.”;
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“12. Bidding refers to the process of
selecting a contractor to enter into and execute a contract for the provision
of consulting services, non-consulting services, procurement of goods or
construction; selecting investors to sign and execute investment contracts for
execution of projects where land is used on the basis of ensuring competition,
fairness, transparency and economic efficiency.”;
dd) Amending and supplementing clause 4 of Article
6 as follows:
“4. Bidding investors must be legally and
financially independent of the parties hereunder:
a) Tender consulting contractors in investment
projects using land until the date of conclusion of project contracts;
b) Competent regulatory authorities, bid
solicitors.”;
e) Amending and supplementing Point i of Clause 1
of Article 8 as follows:
“i) List of investment projects using land;”;
g) Amending and supplementing clause 2 of Article
15 as follows:
“2. Investment projects using land, except for
cases where investment is restricted in accordance with the investment law.”;
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2. Amending and supplementing Clause 4 of Article
40 in the Law on Public Investment No. 39/2019/QH14 as follows:
“4. Principles, authority over, contents of,
procedures and processes for design and evaluation of and decision on
feasibility study reports for PPP projects shall be subject to law on PPP
investment.”.
3. Amending and supplementing Clause 2 of Article
20 in the Law on Prices No. 11/2012/QH13 already amended and supplemented by
the Law No. 61/2014/QH13 as follows:
“2. Promptly adjust prices whenever the price
factors change. In particular, prices of public products and services created
by public-private partnership investment projects shall be adjusted over
periods of time as provided in project contracts.
4. Amending and supplementing certain Articles of
the Law on Support for Small and Medium Enterprises No. 04/2017/QH14 as
follows:
a) Amending and supplementing clause 2 of Article
12 as follows:
“2. Ministries, Ministerial-level agencies and
provincial People’s Committees may establish incubation facilities, engineering
facilities and co-work spaces. Enterprises and organizations investing in other
business activities may set up incubation facilities, engineering facilities
and co-work spaces.”;
b) Amending and supplementing clause 1 of Article
13 as follows:
“1. Ministries, Ministerial-level agencies and
provincial People’s Committees may establish product distribution chains.
Enterprises and other investment or business organizations may establish
product distribution chains.”.
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“2. Hydrometeorology public service organizations
shall be entitled to provide hydro-meteorological services according to their
functions and tasks prescribed by competent state authorities in accordance
with this Law and other relevant laws; shall be entitled to use
hydro-meteorological products and services provided by other organizations or
individuals on the basis of placement of orders or agreements according to the
provisions of law.
Other organizations and individuals may provide
hydro-meteorological services in accordance with this Law and relevant laws.”.
6. Amending and supplementing certain Articles of
the Law on Housing No. 65/2014/QH13, already amended and supplemented by the
Law No. 40/2019/QH14, as follows:
a) Amending and supplementing clause 3 of Article
36 as follows:
“3. The State may directly invest in the
construction of houses with state budget capital, national bonds, other bonds,
official development assistance capital, concessional loans from donors, and
state-owned development investment credit funds on the land areas determined
for construction of resettlement houses according to approved planning schemes
to serve the purposes of lease, lease-purchase or sale thereof to resettlement
beneficiaries.";
b) Amending and supplementing clause 1 of Article
53 as follows:
“1. The State may invest in the construction of
social housing by using state budget capital, national bonds, other bonds,
official development assistance capital, concessional loans from donors, and
state-owned development investment credit funds on the land areas determined
for construction of social housing in accordance with regulations for lease and
lease-purchase purposes.";
c) Repealing Point b of Clause 3 of Article 40 and
Point b of Clause 1 of Article 114.
7. Repealing Point c of Clause 4 and Clause 5 of
Article 30, Clause 4 of Article 51 in the Law on Use and Management of Public
Assets No. 15/2017/QH14.
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1. This Law shall enter into force on January 1,
2021, except the regulations specified in Clause 6 of Article 101 herein.
2. The Government and competent regulatory
authorities shall elaborate on Clauses and Articles set forth in this Law.
Article 101. Transitional
provisions
1. The projects in the sectors prescribed in clause
1 of Article 4 in this Law and meeting the minimum total investment
requirements prescribed in clause 2 of Article 4 herein shall be subject to the
following regulations:
a) In case where an investment policy decision has
been made by a competent authority before the effective date of this Law, the
next steps shall be taken in accordance with this Law. In case where the
investment policy needs to be adjusted, regulations laid down in Article 18
herein shall be observed;
b) In case where the feasibility study report has
been approved by a competent authority before the effective date of this Law,
next steps shall be taken in accordance with this Law without having to go
through the project approval procedures as per this Law; the contents specified
in Clause 6 of Article 23 of this Law must be additionally approved in case
investor selection has not yet been organized;
c) As for projects falling into the cases specified
at Points a and b of this Clause, if the state capital contribution ratio in a
PPP project is greater than the rate specified in Clause 2 of Article 69 of
this Law, any adjustment in the state capital ratio shall not be required.
2. Projects that are not in the sectors specified
in Clause 1 of Article 4 of this Law or fail to meet the minimum total
investment requirements specified in Clause 2 of Article 4 of this Law, and
projects without the prequalification requirement in which investor prequalification
results have not been approved yet or the invitations for bid or requests for
proposal have not yet been issued, until the effective date of this Law shall
be halted.
3. PPP projects in which investor selection is
occurring shall be subject to the following regulations:
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b) In case where the invitation for bid or the
request for proposal has been issued before the effective date of this Law but
the bid is closed after December 31, 2020, the bid solicitor shall be
responsible for extending the bid closing time to improve the invitation for
bid or the request for proposal in accordance with this Law provided that such
action does not result in any adjustment of the approved investment policy and
feasibility study report;
c) In case where the results of investor selection
are available, but the contract negotiation and conclusion happens after the
effective date of this Law, the contracting authority shall negotiate and sign
the contract, based on the results of investor selection, bidding documents,
proposal, invitation for bid and request for proposal in accordance with this
Law without resulting in any adjustment in the approved investment policy and
feasibility study report.
4. Project contracts signed before the effective
date of this Law may continue to be executed under contractual terms and
conditions.
5. From the effective date of this Law, the
transition of Build - Transfer (BT) contracts shall be as follows:
a) Projects where bidding documents or requests for
proposal have not been issued yet shall be suspended; in case where bidding
documents or requests for proposal have already been issued, they shall be
continued based on the invitations for bid, requests for proposals and
legislative regulations at the time of issuance of these invitations for bid or
requests for proposal;
b) With regard to projects where investor selection
results are obtained before the effective date of this Law, the contracting
authority shall negotiate and sign the contract, based on the results of
investor selection, bidding documents, proposals, invitations for bid and
requests for proposal, and legislative regulations valid at the time of
issuance of invitations for bid or requests for proposal;
c) For projects which have signed contracts before
the effective date of this Law, project execution and payment under regulations
of BT contracts and legislative regulations valid at the time of contract
conclusion shall be continued;
d) Implementation of new BT projects shall be
disapproved.
6. Implementation of the projects under BT
contracts that have not been approved for investment policy yet shall be
suspended from August 15, 2020.
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This Law is passed in the 9th plenary
session of the XIVth National Assembly of the Socialist Republic of
Vietnam held on June 18, 2020.
NATIONAL
ASSEMBLY’S CHAIRWOMAN
Nguyen Thi Kim Ngan