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THE GOVERNMENT
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SOCIALIST
REPUBLIC OF VIETNAM
Independence - Freedom - Happiness
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No. 15/2015/NĐ-CP
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Hanoi, February
14, 2015
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DECREE
ON
INVESTMENT IN THE FORM OF PUBLIC-PRIVATE PARTNERSHIP
Pursuant to the Law on Government organization
dated December 25, 2001;
Pursuant to the Law on investment dated November
26, 2014;
Pursuant to the Law on Public investment dated
June 18, 2014;
Pursuant to the Law on Bidding dated November
26, 2013;
Pursuant to the Law on Construction dated June
18, 2014;
Pursuant to the Law on Public debt management
dated June 17, 2009;
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The Government promulgates the Decree on the
investment in the form of Public-Private Partnerships.
Chapter I
GENERAL PROVISIONS
Article 1. Scope of regulation
This Decree provides the regulation on the sectors
and requirements, procedures for execution of the investment projects developed
in the form of public-private partnerships; the management and use of the State
funding for execution of investment projects; the government’s investment
incentive and assurance policies, and government agencies’ responsibilities for
management of the investment projects developed in the form of public-private
partnership.
Article 2. Regulated entities
This Decree applies to the regulatory agency,
investor, project enterprise, lender and agency/organization/individual
involved in the execution of the project developed the form of public-private
partnership.
Article 3. Interpretation of
terms
In this Decree, these terms can be construed as
follows:
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2. “Project contract” means the contracts
prescribed in Clause 3, 4, 5, 6, 7, 8 and 9 of this Article and other similar
contracts prescribed in Clause 3 Article 32 hereof.
3. “Build – Operate – Transfer contract”
(hereinafter referred to as BOT contract) means a type of contract to build an
infrastructure project between a regulatory agency and an investor; after
completing the construction, the investor shall be entitled to operate it for a
specified period of time; eventually, the investor shall transfer it to the
regulatory agency.
4. “Build – Transfer – Operate contract”
(hereinafter referred to as BTO contract) means a type of contract to build an
infrastructure project between a regulatory agency and an investor; after
completing the construction, the investor shall transfer it to the regulatory
agency, and shall be entitled to operate it for an agreed period of time.
5. “Build – Transfer contract” (hereinafter
referred to as BT contract) means a type of contract to build an infrastructure
project between a regulatory agency and an investor; after completing the
construction, the investor shall transfer it to the regulatory agency, and then
the investor will be allotted a land parcel used for carrying out another
project under the provisions of Clause 3 Article 14 and Clause 3 Article 43 of
this Decree.
6. “Build – Own – Operate contract” (hereinafter
referred to as BOO contract) is a type of contract to build an infrastructure
project between a regulatory agency and an investor; after completing the
construction, the investor shall take ownership of this project and have the
right to operate it for a specified period of time.
7. The Build – Transfer – Lease contract
(hereinafter referred to as BTL contract) means a type of contract to build an
infrastructure project between a regulatory agency and an investor; after
completing the construction, the investor shall transfer it to the regulatory
agency and shall be entitled to provide services on the basis of operation of
such project for a specified period of time; the regulatory agency shall have
the authority to lease and make payment for the investor’s services according
to the regulation in Clause 2 Article 14 of this Decree.
8. “Build – Lease – Transfer contract” (hereinafter
referred to as BLT contract) means a type of contract to build an
infrastructure project between a regulatory agency and an investor; after
completing the construction, the investor shall have the right to provide
services on the basis of operation of such projector a specified period of
time; the regulatory agency shall have the authority to lease and make payment
for the investor’s services according to the regulation in Clause 2 Article 14
of this Decree; when the lease term expires, such project shall be transferred
to the regulatory agency.
9. “Operation & Management contract”
(hereinafter referred to as O&M contract) means a type of contract to
operate the project between a regulatory agency and an investor for a specified
period of time.
10. “Other project” means the projects that the
investors shall carry out in order to recover the money invested in
infrastructure projects.
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12. “Feasibility study report” means a document
that contains the information on the need, feasibility and effect of the
project.
13. “Total investment” means the whole of capital
invested for the construction project and the initial working capital for the
operation and management of the project.
14. “Equity capital” means the investor’s stake in
the project as prescribed in Article 10 of this Decree.
15. “Investor” means any organization or individual
that makes investment in a project according to the regulations on the
investment and relevant laws.
16. “Project enterprise” means the enterprise set
up by the investor to carry out the project.
17. “State-owned enterprise” means the enterprise
of which 100% charter capital is held by the State.
18. “Lender” means the organization extending
credit to the investor and project enterprise to carry out the project.
Article 4. Investment project sectors
and classification
1. The projects on the construction, improvement,
operation and management of infrastructural works, the supply of public
equipment and utilities include:
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b) Lighting system; clean water supply system;
water drainage system; sewage collection and disposal system; social housing;
resettlement housing; cemetery;
c) Power plants, transmission lines;
d) Infrastructure works for healthcare, education,
training, cultural activities, sports and relating services; head offices of
regulatory agencies;
dd) Infrastructure works for commerce, science and
technology, meteorology and hydrology, economic zones, industrial zones,
hi-tech zones, concentrated information technology zones; the application of
information technology;
e) Infrastructure works for agriculture and rural
development, and the services for enhancing the correlation of agricultural
production with farm product processing and sale;
g) Other sectors decided by the Prime Minister.
2. The projects prescribed in Clause 1 of this
Article are classified according to the regulations on public investment,
including projects of national importance and the Group-A, B and C projects.
3. Ministries, ministerial-level agencies shall preside
over, cooperate with the Ministry of Planning and Investment in providing
detailed guidance on the investment sectors that fall within Ministries’
jurisdiction.
Article 5. Expenses for the
investment preparation and the execution of the projects allocated by
Ministries, provincial People’s Committees and regulatory bodies
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a) The expenses for the project formulation,
evaluation and approval for the project proposals, feasibility study reports;
b) The expenses for investor selection processes;
c) The expenses for the management of the project
management units affiliated to the regulatory agencies, including those
incurred from the supervision of performance and the construction quality;
d) The expenses for the project announcement;
dd) The operating expenses of the central PPP
project management unit;
e) The expenses for hiring consultants to assist in
the activities within the area of the responsibility of regulatory agencies
prescribed in Clause 5 Article 8 of this Decree;
g) The expenses for organization of conferences,
seminars and negotiation of project contracts and relating contracts;
h) Other expenses.
2. The expenses prescribed in Point a, b and c
Clause 1 of this Article is funded by:
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b) The capital for the investment preparation
prescribed in Article 6 of this Decree;
c) The receipts from the sale of the invitations
for bid;
d) The money repaid by the selected investor;
dd) Other lawful sources of capital.
3. The expenses prescribed in Point d, dd, e, g and
h Clause 1 of this Article shall be allocated from the State budget included in
the administrative expenditure plan outlined by Ministries, regulatory bodies
and provincial People’s Committees.
Article 6. The funding for
investment preparation
1. The Ministry of Planning and Investment shall
mobilize and manage the Official Development Assistance (ODA) funds,
concessional loans from foreign sponsors and other sources of capital under the
decision of the Prime Minister for the investment preparation.
2. The capital prescribed in Clause 1 of this
Article shall be allocated to Ministries, regulatory bodies and provincial
People’s Committees to pay for the investment preparation prescribed in Point a
and b Clause Article 5 of this Decree.
3. The investor who is selected to execute the
project shall repay the expense for investment preparation and the expense for
preserving the funding for investment preparation so as to provide other
funding for other projects.
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Article 7. Steering committee
and the central PPP unit
1. The PPP steering committee is set up and
operates under the decision of the Prime Minister.
2. Based on specific management requirements and
conditions, Ministries, regulatory bodies and provincial People’s Committees
shall appoint their directly-affiliated specialized agencies to be the central
units in charge of the execution of the PPP projects of Ministries, sectors and
localities (hereinafter referred to as the central unit). Ministries and
regulatory bodies shall request the Prime Minister to give decision on the
establishment of the leading units when necessary.
Article 8. Regulatory agencies
that have the authority to sign and carry out the project contracts
1. Ministries, regulatory bodies and provincial
People’s Committees are those who have the authority to sign the project
contracts within their functions, tasks, powers, and adhere to their rights and
obligations agreed upon in the project contract with investors.
2. Based on functions, tasks, powers and specific
management conditions, Ministries, regulatory bodies can delegate to their
affiliates; provincial People’s Committees can delegate to their directly
affiliated specialized agencies or the People’s Committees of districts to sign
and execute the group B or C project contracts.
3. The delegation of authority prescribed in Clause
2 of this Article must be performed in writing in which the scope of authority
delegation, responsibilities of the authorized agencies for the investment
preparation, and contract negotiation, conclusion and execution.
4. Regulatory agencies, authorized agencies defined
in Clause 2 of this Article shall carry out or request the project management
units to carry out their assigned duties but, under any circumstances, shall be
responsible for fulfilling their obligations agreed upon in the project
contract.
5. When necessary, regulatory agencies have the
authority to appoint an independent consultancy organization to assist in the
performance of a number of duties prescribed in Clause 4 of this Article.
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1. Except for the group C projects prescribed in
Clause 2 of this Article, project shall be carried out under the following
procedures:
a) Formulate, evaluate, approve and announce the
projects according to the regulation in Chapter III of this Decree;
b) Prepare, evaluate, and approve the feasibility
study reports according to the regulation in Chapter IV of this Decree;
c) Select investors; negotiate and sign the
investment agreement, project contracts according to the regulation in Chapter
V of this Decree;
d) Follow the procedures for the issuance of
Investment Registration Certificate and set up the project management
enterprises according to the regulation in Chapter VI of this Decree;
dd) Carry out the projects according to the
regulation in Chapter VII of this Decree;
e) Complete the financial reporting and transfer of
the project according to the regulation in Chapter VIII of this Decree.
2. Group C projects are carried out under the
following procedures:
a) Formulate, evaluate, approve and announce the
project according to the regulation in Chapter III of this Decree;
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c) Carry out the projects according to the
regulation in Chapter VII of this Decree;
d) Complete the financial reporting and transfer of
the project according to the regulation in Chapter VIII of this Decree.
Chapter II
FINANCING FOR THE
PROJECT EXECUTION
Article 10. Equity capital and
mobilized capital
1. Investors shall be responsible for contributing
the equity capital and mobilize other capital to execute the project as agreed
upon in the project contract.
2. The equity capital of the investor shall account
for at least 15% of the total capital. With regard to the project funded by
total investment of over VND 1,500 billion, the percent of equity capital is
calculated according to the partial progression method as follows:
a) For the investment capital that amounts to VND
1,500 billion, the equity capital shall account format least 15% of such
financing portion;
b) For the investment capital that exceeds VND
1,500 billion, the equity capital shall account for at least 10% of such
financing portion.
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4. Other projects carried out by the investors to
recover the investment in a BT project shall meet the requirements for the
equity capital (if any) according to the regulation.
Article 11. State funding for
the project
1. The State funding for the project shall be
derived from the State budget, Government bonds, municipal bonds, the ODA and
the concessional loans from foreign sponsors.
2. The State funding for the project is used for:
a) Providing financial support for commercial
projects, or those intended for fee collection, but from which receipts are not
sufficient for the recovery of the invested capital and profits;
b) Paying the investor providing services according
to the BTL contract, BLT contract and other similar contracts;
c) Supporting the construction of auxiliary
facilities, paying the indemnity, and carrying out site clearance and
relocation.
3. The State funding prescribed in Point a, b
Clause 2 of this Article is only used for executing the project proposed by
Ministries, provincial People’s Committees and regulatory bodies or the
projects financed by the ODA and the concessional loans from foreign sponsors.
Article 12. Determination of
the State funding for the project
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2. The competent persons prescribed in Article 27
of this Decree shall determine the amount of State funding for the project when
approving the feasibility study report or project proposal (with regard to
group C projects).
Article 13. Planning for State
funding for the project
1. Ministries, regulatory bodies and provincial
People’s Committees shall draw up and make an aggregate planning for the State
funding for the projects that are announced in the 5-year public investment
program for industry sectors, local areas according to the regulation in
Article 18 of this Decree.
2. Based on the approved 5-year public investment
plans, feasibility study reports or project proposals (with regard to group C
projects), the Ministries, regulatory bodies and provincial People’s Committees
shall draw up and make an aggregate planning for the State funding for the
local projects defined in 5-year public investment program.
3. The Ministry of Planning and Investment shall
preside over, cooperate with the Ministry of Finance in carrying out the
projects defined in the national public investment program.
Article 14. Disbursement of
State funding for the project
1. Disbursement of the State funding for the
project:
a) State funding for the project prescribed in
Point a Clause 2 Article 11 of this Article shall be disbursed when the project
workload and value is completed under the terms and conditions of the project
contracts;
b) Based on the completed workload or construction
value tested and accepted by the project management enterprises, regulatory
agencies shall disburse the state funding and make payments to the investors
and project management enterprises according to the amount, value, progress and
conditions agreed in the project contracts.
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a) The funding for payment to the investor for the
service according to the BTL contract, BLT contract and other similar contracts
prescribed in Point b Clause 2 Article 11 of this Article shall be disbursed
from the time the service is provided as agreed upon in the project contracts;
b) The payment prescribed in Point a of this Clause
shall be carried out periodically according to the amount and quality of
service specified in the project contracts.
3. Using the land fund as a payment to the BT
project investors that must be approved by a competent authority according to
the law on land.
4. Disbursement of state funding for the auxiliary
works, indemnity, site clearance, resettlement:
Funding for the auxiliary works, the indemnity,
site clearance and resettlement prescribed in Point c Clause 2 Article 11 of
this Decree is used according to the regulation on public investment project.
5. The Ministry of Finance shall provide guidance
on the implementation of this Article.
Chapter III
CONSTRUCTION AND
ANNOUNCEMENT ABOUT THE PROJECTS
Section 1: PROJECTS PROPOSED BY
MINISTRIES, PROVINCIAL PEOPLE’S COMMITTEES AND REGULATORY BODIES
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1. PPP projects must meet the following
requirements:
a) Conform to the program or the plan for the
development of sectors, regions and the plan for the local socio-economic
development;
b) Conform to the investment sector prescribed in
Article 4 of this Decree;
c) Prove that the investor has capacity for
attracting and acquiring the commercial capital, technique and experience in
project management;
d) Have ability to constantly and stably provide
the good quality products that satisfy the consumer’s need;
dd) Have the total investment capital of at least
VND 20 billion, except for the projects under the O&M contract and the
projects prescribed in Point e Clause 1 Article 4 of this Decree.
2. The projects that are not included in the
program, plan for the development of sectors, regions, or the plan for the
socio-economic development shall be considered and amended by Ministries,
regulatory bodies and provincial People’s Committees under their delegated
authority or submitted to a competent authority for approval.
3. The project that conforms to requirements
defined in Clause 1 of this Article and can recover the investment capital
gained from operating activities shall be given priority in the selection
process.
Article 16. Subject matters of
the project proposal
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2. A project proposal shall include the following
required information:
a) The need of the investment; the advantages of
the Public-Private Partnership in comparison with other forms of investment;
the type of project contract;
b) The conformity of the project to the planning,
the development plan and the conditions prescribed in Clause 1 Article 15 of
this Decree;
c) The proposed objectives, scope, location of the
project; the demand for land and other resources;
d) The preliminary analysis of the requirements for
techniques, criteria, quality of the construction, products or services;
dd) The proposed progress and completion date of
the project; the duration of project development and operation; plans for
management, operation or service supply;
e) The master plan for the indemnity, site
clearance and resettlement;
g) The proposed requirements for execution of other
projects (applied to the BT project);
h) The preliminary financial analysis containing
information such as the total investment capital, the capital structure and
mobilization plan; the State funding for the project (if any); expenditures;
revenues, price and fee of commodities or services; capital recovery and profit
generation duration;
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k) The proposal of investment incentive and
guarantee methods (if any);
l) The preliminary forecast of socio-economic
effect of the project; the impacts of the project on environment, society and
national defense and security;
m) Other necessary information.
3. With regard to the construction project, in
addition to the regulation in Clause 2 of this Article, the project proposal
shall include the preliminary design according to the regulations on
construction.
Article 17. Appraisal and
approval for project proposal
1. Ministries, regulatory bodies and provincial
People’s Committees shall carry out the appraisal and approval for group A, B
and C projects. Procedures for the formation, appraisal and approval of the
project proposal in terms of national importance projects shall adhere to the
regulations on public investment.
2. With regard to a project financed by the State
funding, based on the estimated amount and proposed capital sources,
Ministries, regulatory bodies and provincial People’s Committees shall report
to competent agencies according to the regulation on public investment so as to
decide the budget allocation before approving the project.
3. The application for the use of State funding for
a project shall include:
a) A written request for permission to use State
funding for the project;
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c) The appraisal result from the competent agencies
about the source and the balance of the State funding for the project.
4. The time limit for the approval for the use of
the State funding for the project prescribed in Clause 2 of this Article shall
not exceed 30 days from the receipt of sufficient documents stipulated in
Clause 3 of this Article. .
Article 18. Project
Announcement
1. Within 07 working days from the day on which the
project proposal is approved, Ministries, provincial People’s Committees and
regulatory bodies shall issue the announcement about a single project or the
project portfolio on the National Electronic Procurement System according to
the regulations on bidding.
2. The announced project shall include the
following main information:
a) The name of the project and the type of project
contracts;
b) The target, scope, location of the project and
the other project (if any);
c) The summary of the requirements for techniques,
criteria, quality of the project facilities, products or services;
d) Proposed total investment capital; State funding
for the project (if any);
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e) The updated information on the progress of the
project prescribed in Point dd of this Clause;
g) The contact address of regulatory agencies.
Article 19. The transformation
of investment projects financed by the public investment budget
1. The project that is financed by the public
investment budget and satisfies the conditions prescribed in Clause 1 Article
15 of this Decree may be considered transforming the investment into the form
of Public-Private Partnership.
2. The Ministry of Planning and Investment shall
provide guidance on procedures for the transformation of investment according
to the regulation in Clause 1 of this Article.
Section 2: PROJECTS PROPOSED BY
THE INVESTORS
Article 20. Conditions for
making project proposal
1. Investors may propose the projects other than
the ones approved by Ministries, regulatory bodies and provincial People’s
Committees and make an announcement about such projects according to the
regulation in Section 1 of this Chapter.
2. Requirements for the projects proposed by the
investors:
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b) The investor being a state-owned enterprise
shall establish a joint venture with another enterprise when proposing.
Article 21: Project proposal
made by the investor
1. The investor shall make a project proposal
documentation and submit it to Ministries, regulatory bodies and provincial
People’s Committees.
2. The contents of project proposal:
a) A written proposal for the project execution;
b) The project proposal (including the contents
prescribed in Clause 2 and 3 Article 16 of this Decree);
c) A confirmation document about legal personality,
capacity and experience of the investor;
d) Previous performance in similar projects (if
any);
dd) Other necessary documents used for explaining
the project proposal (if any).
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1. The project proposal of the investor shall be
appraised and approved according to the regulation in Article 17 of this Decree
within 30 days from the day on which the satisfactory application is received.
2. The Ministry of Planning and Investment shall
provide guidance on the implementation of this Article.
Article 23: Announcement about
the project proposal made by the investor
1. If the project proposal is approved, Ministries,
regulatory bodies and provincial People’s Committees shall make an announcement
about the proposal and the information about the investor making such proposal
according to the regulation in Article 18 of this Decree.
2. If a project includes contents relating to the
intellectual property rights, trade secret, technology or agreements on
mobilizing capital used for a project that needs top secret, then investors
shall make a deal with Ministries, regulatory bodies and provincial People’s
Committees on the contents of the announcement.
Chapter IV
FORMATION, APPRAISAL AND
APPROVAL FOR FEASIBILITY STUDY REPORTS
Article 24. Responsibility for
the formation of the feasibility study report
1. Ministries, regulatory bodies, provincial
People’s Committees shall make a feasibility study report on the project as the
basis of the formation of invitation for bid for investor selection and the
contract negotiation .
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3. Assigning investors to prepare the feasibility
report shall be carried out according to the written agreement between the
Ministries/regulatory bodies/provincial People’s Committees and the investor.
The agreement shall specify the purposes, requirements and expenses for the
feasibility study report, expense for independent consultants who are hired to
carry out the appraisal, and the approaches to the case in which another
investor is selected for executing the project.
Article 25. Contents of
feasibility study report
1. The feasibility study report of the project
shall include:
a) A detailed analysis of the need for the
investment and the advantages of the project in comparison with other form of
investment; the type of the project contract;
b) An evaluation report on conformity of the
project with the planning, the development plan and the conditions prescribed
in Clause 1 Article 15 of this Decree;
c) The target, the scope, the components (if any)
and the location of the project; the demand for land and other resources;
d) A description of the technique, technology to
satisfy the requirements for the quality of the works, products or the supply
services;
dd) An assessment on the current conditions of
works, machinery, devices, the value of property (applied to the O&M contracts);
the conditions for carrying out other project (applied to the BT contracts);
dd) The project progress and time limit; the
duration of the construction and development of the works; the plan for the
management, operation or service supply;
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h) The project financial plan (including the
contents prescribed in Point h Clause 2 Article 16 of this Decree);
i) The capital mobilization for the project;
evaluation of the need and the liquidity ratio of the market; the survey on the
interest of the investors and the lenders in the project;
k) An analysis of risk, responsibilities of the
parties for the risk management during the execution of the project;
l) A petition for investment incentive and
guarantee (if any)
m) The socio-economic effect and the impacts of the
project on environment, society and national defense and security;
2. With regard to the project including building
components, apart from the contents prescribed in Clause 1 of this Article, the
feasibility study report shall include the fundamental design according to the
regulations on construction.
3. Group C project may be not required to have
feasibility study report. However, fundamental design and project financial
plan shall be included in the project proposal as the basis for investor
selection and project contract negotiation.
4. Ministries, regulatory bodies shall cooperate
with the Ministry of Planning and Investment in providing guidance on the
contents of feasibility study report provided that these contents conform to
the performance and project management of the regulatory bodies.
Article 26. Appraisal of
feasibility study report
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a) The national appraisal board is in charge of
appraising the projects of national importance;
b) Ministers, Heads of ministerial-level agencies,
Presidents of the provincial People’s Committees shall request the central
units in charge of the execution of the PPP to carry out the appraisal of group
A and B project.
2. The documents that must be included in the
appraisal of feasibility study report are:
a) The project appraisal report;
b) The feasibility study report;
c) Relevant materials or legal documents.
3. Contents of the appraisal:
a) The need of the project; the correlation between
the project and the planning, the program for the development of specific
sector, region and local area; the necessity and the advantage of the project
in the form of public-private partnership in comparison with other form of
investment;
b) The evaluation of the basic factors that can
affect the project: the target and the appropriacy in terms of scope, location
of the project; requirements for technical design, technology; plans for
project management and operation or service supply;
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d) The effect of the project: The results and the
positive impacts of the project on the socio-economic development; the impacts
on the environment, society and national defense and security;
dd) Other necessary information.
4. The time limit for the appraisal of feasibility
study report:
a) For the projects of national importance: not
later than 90 days;
b) For group A projects: not later than 40 days;
c) For group B projects: not later than 30 days.
5. The appraisal agency may hire consultants to appraise
part or all of contents prescribed in Clause 3 of this Article.
Article 27. Authority to
approve the feasibility study report
1. The Prime Minister shall be responsible for the
approval for feasibility study report of the projects of national importance.
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Article 28. Adjustment to the
feasibility study report
1. The feasibility study report shall be adjusted
in the following cases:
a) The project is affected by natural disasters or
other force-majeure events;
b) There are elements that may make the project
more effective;
c) There is any change in the planning that
directly entails changes to the target, location and scope of the project;
d) The project fails to attract the investor after
the survey, initial selection or bidding;
dd) Other cases according to the regulations by the
Prime Minister.
2. Procedures for the appraisal, approval and
feasibility study report adjustment shall be carried out according to the
regulation in Article 26 and 27 of this Decree.
Chapter V
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Article 29. Investor selection
1. The selection of investor is carried out in the
form of open bidding or contractor appointment.
2. An investor may receive concession in the
investor selection progress if such organization has a feasibility study report
or has a project proposal (applied to group C projects) approved by Ministries,
regulatory bodies or provincial People’s Committees.
Article 30. Conclusion of the
investment agreement
1. Regulatory agencies shall organize the project
contract negotiation with the investor (hereinafter referred to as the
contracting party) that is selected according to the provisions of Article 29
of this Decree.
2. After the project contract negotiation, the
regulatory agency and investor may sign an investment agreement to confirm the
following contents:
a) The draft of project agreement;
b) The rights and obligations of each contracting
party to the implementation of the procedures prescribed in Article 40 and 42
of this Decree to be issued with the Investment Registration Certificate and
set up the project enterprises;
c) Other matters according to the agreement between
the parties.
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1. After receiving the Investment Registration
Certificate as prescribed in Clause 3 of Article 40 of this Decree, the
regulatory agency and the investor may sign the project contract.
2. With regard to group C project, after completing
the project contract negotiation, the regulatory agencies and the investor may
sign the project contract.
3. The rights and obligations of the project
enterprise are negotiated in one of the following ways:
a) The project enterprise shall sign a contract
with the investor to become a contracting party who is bound to the project
contract;
b) The regulatory agencies, investors and project
enterprises shall enter into the written permission allowing the project
enterprise to exercise the rights and assume obligations of investors specified
in the investment registration certificate and the project contracts. This
document is an integral part of the project contract.
Article 32. Contents of the
project contract
1. Based on the target, characteristic and type of
project contract, the contracting parties agree to all or some of the following
basic contents:
a) The target, scope, location, time limit and
progress of the project; time for the construction of works in the project;
b) Requirements that technique, technology, quality
of works, products or supplied services must conform to;
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d) The conditions, the rate and the progress of the
disbursement of the State funding (if any);
dd) Requirements for the use of land and related
work;
e) The indemnity, site clearance and the
resettlement;
g) The construction, inspection, monitoring,
quality control, acceptance testing and final settlement of the project;
h) Inspection, operation, maintenance, sales and
development of projects; project transfer;
i) The safety and environment protection;
k) The conditions and procedures for project
acceptance of the lenders and appointed organizations;
l) Risk allocation between the regulatory agencies
and investors; the force-majeure events and handling principles;
m) The incentives and investment guarantee (if
any);
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o) The effect and duration of the project contract;
p) The rules and conditions for amendments and
termination of the project contract; the transfer of rights and obligations
agreed under the project contract;
q) Other matters according to the agreement between
the contracting parties.
2. The documents enclosed with the project contract
(if any) include appendices, documents and other papers integral to the project
contract.
3. Based on the types of project contracts
specified in Clauses 3, 4, 5, 6, 7, 8 and 9 of Article 3 of this Decree,
Ministries, regulatory bodies and provincial People's Committee shall propose
the similar types of contract and request the Prime Minister to consider and
decide.
4. Based on the regulation laid down in Point 1 of
this Article, Ministries and regulatory bodies shall cooperate with the
Ministry of Planning and Investment in providing guidance on the contents of
the project contract in accordance with the requirements for execution and
management of projects owned by each regulatory agency.
Article 33. Lenders’ right to
take over the project
1. Lenders are entitled to take over or appoint a
competent organization to take over a part or all of the rights and obligations
of investors, project enterprises (hereinafter referred to as the take-over
right) in case the investor or project enterprise fails to fulfill the
obligations specified in the project contract or loan agreement.
2. A written agreement on the project must be made
between the lenders and regulatory agencies or the contracting parties. Lenders
and regulatory agencies are entitled to decide the time to sign the agreement
on the project take-over.
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Article 34. Transfer of rights
and obligations under the project agreement
1. Investors may transfer a part or all of the
rights and obligations under the project agreement to the lender or another
investor.
2. The transfer of a part or all of the rights and
obligations under the project agreement shall not affect the target, scope,
technical standards, and progress of the project and must meet the conditions
for investment and operation according to the regulations defined in the law on
investment and other agreed requirements specified in the project contract.
3. A written agreement on the transfer prescribed
in Clause 1 of this Article shall be made between the parties in the project
contract and the transferee. Lender shall negotiate the concession agreement
under the terms of the loan agreement.
Article 35. Amendments to the
project contract
Project contract may be amended due to a change of
scale, technical standards, the contractual total investment or a force-majeure
event, the adjustment to the feasibility study report as prescribed in the
regulation in Article 28 of this Decree and other cases specified in the
project contract.
Article 36. Contract term
1. The duration of the project contract shall be
agreed upon between the parties according to the field, the scope, the
characteristic and type of contracts, projects.
2. Project contract may ends its validity if the
agreed contract term expire, or else the project contract may be terminated
prior to the maturity date due to the violation of one of the parties without
that defaulting party’s effective remedies, due to force majeure events or
other cases specified in the project contract.
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Article 37. Application of
foreign laws
1. The contracting parties may negotiate the
application of foreign laws to govern the following contracts:
a) A project contract of which one contracting
party is a foreign investor;
b) A contract that is guaranteed by the Government
for the obligations prescribed in Article 57 of this Decree.
2. The Agreement that applies foreign laws
specified in Clause 1 of this Article shall be conformable to Vietnam law on
selection and application of foreign laws.
Article 38. Performance
guarantee
Regulatory agencies and investor shall negotiate
the form, value, duration of performance guarantee according to the regulations
on bidding
Chapter VI
PROCEDURES FOR
INVESTMENT REGISTRATION AND PROJECT ENTERPRISE ESTABLISHMENT
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1. Ministry of Planning and Investment is in charge
of the issuance, adjustment and revocation of the investment registration
certificate of:
a) The projects of national importance;
b) The projects that are signed by a Ministry, a
regulatory body or an authorized agency;
c) The projects that involve multiple provinces.
2. Provincial People's Committees is in charge of
the issuance, adjustment and revocation of the investment registration
certificate of the projects other than those specified in Clause 1 of this
Article.
3. The procedures for the issuance of investment
registration certificate do not apply to group C projects.
Article 40. Application,
procedures for issuance, adjustment and revocation of investment registration
certificate
1. Application for the investment registration
certificate shall include:
a) A written request for the investment
registration certificate;
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c) A feasibility study report and decision on the
project approval;
d) A written approval to use the State funding (if
any);
dd) A joint-venture contract and a draft of project
enterprise’s charters (if any);
e) Decision on investor selection.
2. Each investor shall submit 5 application
packages. (01 original) to an agency specified in Article 39 of this Decree.
3. Any agency prescribed in Article 39 of this
Decree must grant the investment registration certificate within 25 days of
receipt of valid documents included in such application.
4. Ministry of Planning and Investment shall
specify the application, procedures for the issuance, amendment and revocation
of investment registration certificate.
Article 41. Contents of the
investment registration certificate
1. Investment registration certificate shall
include the following principal contents:
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b) Name of the project;
c) The target, scope, requirements and conditions
for the execution of the project (if any);
d) Location of the project and land use acreage;
dd) The total investment in the project; capital
structure;
e) The duration and the progress of the project;
g) The value, proportion, progress and conditions
for disbursement of government investment in the project (if any);
h) The investment incentives (if any).
2. With regard to the BT projects, in addition to
the content of the project of infrastructure construction prescribed in Clause
1 of this Article, the investment registration certificate shall include the
regulation on the conditions for the execution of other projects.
3. Other projects shall follow required procedures
for issuance of the investment registration certificate according to the
regulations on investment.
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1. After being issued with the investment
registration certificate, investors shall establish a project enterprise to
execute the project according to the target, scope as agreed upon in the
project contract. Documents and procedures for the establishment of project
enterprise shall adhere to the regulations pertaining enterprises.
2. With regard to the projects carried out under
the BT contract or the group C project, investors shall establish a project
enterprise according to the regulation in Clause 1 of this Article or directly
execute the project, but shall be required to carry out independent management
and make accounting report on the capital and project-related activities.
Chapter VII
PROJECT
IMPLEMENTATION
Article 43. Conditions
for carrying out the project
1. The project shall be executed according to the
conditions defined in the project contract after the investor is issued with
the investment registration certificate.
2. A group C project shall be executed after the
project contract was signed.
3. Other projects may be executed concurrently or
after the infrastructure construction has been completed as prescribed in the
project contract.
Article 44. Project contractor
selection
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Article 45. Construction site
preparation
1. Provincial People's Committees are responsible
for carrying out the site clearance and completing the procedures for land
allocation and lease to carry out the project according to the laws on land,
project contracts and relevant contracts.
2. The competent authority shall cooperate with
provincial People's Committees in the implementation of the regulation set
forth in Clause 1 of this Article.
Article 46. Formulation of
construction design
1. Based on the feasibility study report and the
regulations defined in the contract project, the investor and the project
enterprise shall draw up the technical design and send it to a competent
authority for the purpose of supervision and inspection. The adjustment to
technical design that may affect the scope, technical standards and progress of
the project must be approved in writing by a competent authority.
2. The inspection of construction design shall
comply with the law on construction.
Article 47. Contract
performance supervision
1. The investor, the project enterprise are
responsible for controlling the quality of the project construction and
services; monitoring supervising by themselves or hiring an independent
consultant to monitor or supervise the construction and the acceptance testing
of construction constituents and all of construction works according to the
design, the operation plan prescribed in the project contract.
2. Competent authorities are responsible for
monitoring the obligation fulfillment of investors, project enterprises
according to the project contract.
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Article 48. Project quality
supervision
1. When supervising the quality of the project
transferred to the State upon completion, in addition to the duties specified
in Article 47 of this Decree, any regulatory agencies shall be required to:
a) Inspect the construction supervisor’s
performance according to the requirements defined in the project contract;
b) Inspect the compliance with procedures,
standards and norms for the management and operation of project as agreed upon
in the project contract;
c) Carry out the inspection of the quality of a
part or all of works when there is any suspicion of the quality or any request
of a regulatory agency;
d) Ask the investors to request the contractor to
adjust or suspend the project execution whenever the quality of the execution
does not meet the statutory requirements.
2. The supervision of the quality of the BT project
shall adhere to the regulated procedures that a public investment project must
follow.
3. Ministry of Construction shall provide guidance
on the implementation of the regulations laid down in this Article.
Article 49. Project management
and operation
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2. During the operation of the project or the
rendering of project-related services, the project enterprises are required to:
a) Supply products, services and fulfill other
duties according to the requests, conditions defined in the project contract;
b) Ensure that the use of the project shall conform
to the terms and conditions of the project contract;
c) Treat all users of products and services
provided by the project enterprises with fairness; avoid misusing the right to
operate the project to refuse to provide services for customers;
d) Periodically repair, maintain the project, and
ensure that the project shall be safely operated in accordance with the design
or processes specified in the project contract.
Article 50. Price, cost of
goods, service charges and revenues
1. Price, cost of goods, services, other revenues
and conditions, procedures for adjustment shall be agreed upon in the project
contract according to the principles that benefits of investors, projects
enterprises, customers and the State shall be ensured, and these parties
concerned shall receive proper conditions to recover their capital as well as
gain profits.
2. The agreement about and adjustment to price,
fees of goods, services and other revenues managed by the State shall comply
with the laws on prices, fees and the conditions specified in the project
contract.
3. When adjusting prices, fees of goods, services
and other revenues specified in Clause 1 and Clause 2 of this Article,
investors, and project enterprises shall send a prior notice to the regulatory
agencies and goods/ services customers for a period of 30 days before the date
of adjustment.
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Investors, project enterprises are provided with
favorable conditions to accurately and fully collect the price and service
charges and revenues. They are also supported by the regulatory agencies to
collect the service fees, and other revenues.
Article 52. Supervision,
evaluation of investment activities and financial disclosure
1. The supervision and evaluation of projects shall
be carried out according to the laws on the monitoring and evaluation of the
investment and the agreement defined in the project contract.
2. Investors, project enterprises shall carry out
the disclosure of financial reports, audit reports in accordance with the law
and the agreements specified in the project contract.
Chapter VIII
FINAL SETTLEMENT AND
TRANSFER OF THE PROJECT
Article 53. Final settlement
of the project
1. Within 06 months from the day on which the
project is completed, the investor shall carry out the final settlement of the
investment capital used for the project development.
2. The competent agencies shall negotiate with the
investors for the selection of an independent auditing organization that has
proper capacity and experience to audit the value of investment capital used
for the project construction.
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Article 54. Transfer of the
project
1. For the project contract that has terms and
conditions concerning the transfer of the project, the regulatory agencies and
investors shall obtain agreements about the conditions and procedures for
project transfer in the project contract.
2. The transfer of the project shall comply with
the following conditions and procedures:
a) One year before the date of transfer or within
the time limit specified in the project contract, investors, project
enterprises shall make the public announcement about the transfer of works,
procedures and time limits for completing all contractual rights and
obligations as well as debt repayment;
b) The regulatory agencies shall inspect the
quality, value, condition of the project under the terms and conditions of the
project contract, make a list of assets to be transferred, determine any loss
or damage (if any), and request the project enterprises to repair and maintain
the project;
c) Investors, project enterprises shall ensure that
the transferred asset is not collateralized for the fulfillment of the
financial obligations or other obligations of the investors, project
enterprises that may arise before the date of transfer, unless otherwise agreed
in the project contract;
d) Project enterprises are responsible for
technology transfer, training and the periodical maintenance and the overhaul
in order to ensure the normal technical conditions of the project in accordance
with the requirements defined in the project contract;
dd) After taking over the project, the regulatory
agency shall carry out the management and operation of such project inside
their area of competence.
Chapter IX
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Article 55. Investment
incentives
1. Investors, the project enterprise shall be given
the enterprise income tax incentives according to the laws on enterprise income
tax.
2. Goods imported for the execution of projects
shall have opportunities to approach incentives according to the laws on export
and import tax.
3. Investors, project enterprises shall be entitled
to exemption of land levies for the land allocated by the State or exemption
from land rent during the execution of the project according to the laws on
land.
4. Investors, project enterprises shall be also
entitled to other incentives according to the law.
Article 56. Taxes levied on
contractors involved in the project
Foreign and local contractors involved in the
project shall fulfill their tax liabilities and shall be entitled to tax
incentives according to the law.
Article 57. Guarantee for
fulfillment of obligations assumed by investors, project enterprises and other
enterprises
Based on the nature of specific projects and
demands for the project execution, the Prime Minister shall appoint a competent
agency as a representative of the Government to guarantee the supply of raw
materials, consumption of products and services and other contractual
obligations of the investors, project enterprise or other enterprises involved
in the project and guarantee the obligations of the state enterprises who sell
fuel, raw materials, purchase products or services of the investors, project
enterprises.
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1. Investors, project enterprises may use their
property, land use rights and the right to operate the project as collateral to
the lenders according to the laws of and the civil laws. The duration of such
collateralization shall not exceed the duration of the project contract, unless
otherwise agreed in the project contract.
2. Agreement on the aforesaid collateralization
shall be made in writing and signed by the lender and the contracting parties.
3. Such collateralization shall not be allowed to
affect the target, scope, technical standards, progress of the project and
other conditions specified in the project contract.
Article 59. Guarantee of
exercise of land use rights
The land use purpose shall be guaranteed not to
change during the execution of the project contract, even when the lender
exercises the right to take over the project according to Article 33 of this
Decree.
Article 60. Guarantee of
balancing of foreign currency
1. Investors, the project enterprises shall be
entitled to purchase foreign currency at credit institutions that are licensed
to perform foreign exchange transactions to meet the needs for current
transactions, capital transactions and other transactions or transfer of
capital, profits, liquidated outward investment according to the laws on
foreign exchange management.
2. Projects that fall under the authority to decide
the investment plans of the National Assembly, infrastructure construction
projects that belong to the investment programs of the Government and other
essential projects according to the decision of the Prime Minister shall be
considered to ensure that foreign currency needs shall be met to carry out the
transactions stipulated in Clause 1 of this Article.
3. Based on the socio-economic development
orientation, foreign exchange management policy, the ability of foreign
currency balancing in each period and the target, the nature of the project,
the Prime Minister shall decide and appoint a competent agency to balance foreign
currency for the project specified in Clause 2 of this Article according to the
proposal sent by Ministries, regulatory bodies or local authorities.
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1. Investors, project enterprise shall have the right
to use land, roads and other ancillary facilities to implement the project in
accordance with the law.
2. Where there is the scarcity of public services
or restrictions on entities eligible to use public works, investors, project
enterprise shall be given the priority to provide services or obtain rights to
use public works for the purpose of project execution.
3. Competent authorities shall be responsible for
supporting investors, project enterprise in following required procedures to be
granted priority to use public utilities and facilities.
Article 62. Guarantee of
property ownership
1. Lawful property of investors shall not be
nationalized or confiscated by applying administrative measures.
2. Where the State purchase or requisition of
property by reasons of national defense, security or national interests,
emergencies, natural disaster prevention or mitigation, is needed, the investor
is paid compensation under the provisions of investment law, or the law on
government purchase or expropriation of assets and the terms agreed in the
contract project.
Article 63. Settlement of
disputes
1. The dispute between a regulatory agency and an
investor or a project enterprise, or the dispute between a project enterprise
and an economic organization participating in the project, shall be initially
negotiated or mediated. If a dispute cannot be settled by such negotiation or
mediation, the contracting parties may lodge the case to the arbitration or the
Vietnamese court for settlement according to Vietnamese laws, except for the
cases specified in Clause 2 and 3 of this Article.
2. The dispute between a competent agency and a
foreign investor or a project enterprise established by a foreign investor
under the regulation in Article 42 of this Decree in the process of the project
contract execution and the guarantee contract stipulated in Article 57 of this
Decree shall be settled by the arbitration or Vietnamese court or the
arbitration council established under the agreement between the parties
concerned.
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4. Disputes resolved by the arbitration specified
in the project contract and the relevant contracts are deemed trade disputes.
The decision of a foreign arbitration is recognized and enforced in accordance
with the law on recognition and enforcement of decisions of foreign
arbitration.
Chapter X
RESPONSIBILITIES FOR
STATE MANAGEMENT OF INVESTMENT PROJECTS UNDER THE FORM OF A PUBLIC-PRIVATE
PARTNERSHIP CONTRACT
Article 64. Responsibilities
of the Ministry of Planning and Investment
1. Help the Government to consistently manage
investment activities in the form of public-private partnerships across the
country.
2. Preside over and collaborate the Ministries or
regulatory agencies concerned in providing guidance on the implementation of
regulations on management and use of funds for the preparation of investment;
procedures for transformation of investment projects funded by public
investment capital; documentation and procedures that must be submitted or
followed to approve the proposed investment project; records and procedures
that must be submitted or followed to issue, amend and revoke the investment
registration certificate; use of the state funding for the project; transfer of
rights and obligations under the project agreement and other matters within
their delegated authority specified herein.
3. Verify and submit the result of verification of
similar investment projects proposed by the Ministries, provincial People's
Committee to the Prime for consideration and decision.
4. Preside over and collaborate with the Ministry
of Finance in formulating the general plan to use the State investment in the
project; manage the state funding for project preparation.
5. Collaborate with the Ministry of Finance in
providing guidance on the disbursement of State investment in the project.
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7. Preside over and cooperate with Ministries,
provincial People's Committee in inspecting the proposal in which other forms
of investment are specified in this Decree.
8. Preside over and collaborate with Ministries,
regulatory agencies and provincial People's Committees in monitoring, testing,
inspecting, reporting and assessing the implementation of the projects
throughout the country.
9. Establish and manage the system of national information,
national database on public-private partnership investment.
10. Organize training sessions to enhance the
capability of implementing investment projects in the form of public-private
partnerships.
11. Perform other duties and exercise other powers
as prescribed by law.
Article 65. Responsibilities
of the Ministry of Finance
1. Provide guidance on cost of preparing and
implementing investment projects of ministries, provincial People's Committees;
mechanisms for implementation of investment projects under contract BT; the
financial plan of the project; final settlement of construction projects and
other related matters within their jurisdiction specified in this Decree.
2. Preside over and cooperate with the Ministry of
Planning and Investment in providing guidance on disbursement of state
investment in the project.
3. Cooperate with the Ministry of Planning and
Investment in planning to use state investment in the project, and managing
state funding for investment preparation.
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5. Give their opinions on issues within their
assigned duties or delegated powers at the request of the Ministries,
provincial People's Committee.
6. Aggregate and evaluate data and figures
concerning the public debt of the projects and the financial obligations of the
Government.
7. Perform other assigned duties and exercise other
delegated powers as prescribed by law.
Article 66. Responsibilities
of the Ministry of Justice
1. Provide legal advice on the project contract,
the Government guarantee and documents related to the project signed by state
agencies.
2. Participate in the negotiation of issues
relating to applicable law, dispute settlement, government guarantees, other
legal issues relating to project contracts and other similar contracts at the
request of the Ministries and provincial People's Committee.
3. Perform other assigned duties and exercise other
delegated powers as prescribed by law.
Article 67. Responsibilities
of the State Bank of Vietnam
1. Provide their advice on the possibility of
ensuring the balancing of foreign currency for the project at the request of
Ministries, provincial People's Committees; aggregate demands for foreign currency
of projects and manage the State's foreign exchange reserves to ensure the
ability to balance an amount of foreign currency for the project.
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3. Perform other assigned duties and exercise other
delegated powers as prescribed by law.
Article 68. Responsibilities
of the Ministry of Construction
1. Providing guidance on the implementation of
regulations on project supervision and quality control and the determination of
operating costs of the project management units.
2. Get involved in verifying issues within their
assigned duties or delegated powers at the request of Ministries and provincial
People's Committees.
3. Perform other assigned duties and exercise other
delegated powers as prescribed by law.
Article 69. Responsibilities
of Ministries and regulatory bodies
1. Perform the state management of investment in
the form of public-private partnerships within their jurisdiction.
2. Formulate, announce projects that fall under
their authority.
3. Preside over and cooperate with the Ministry of
Planning and Investment in providing guidance on the implementation of the
provisions enshrined in this Decree.
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5. Aggregate and report information about the
implementation of projects within the jurisdiction of specific regulatory
agencies.
6. Request the Prime Minister to consider and
decide the implementation of the forms of investment guarantee, which have not
been governed in this Decree.
7. Perform other assigned duties and exercise other
delegated powers as prescribed by law.
Article 70. Responsibilities
of provincial People's Committees
1. Perform the state management of investment in
the form of public-private partnership arrangements in the province under the
Government’s delegation of authority.
2. Formulate and announce local projects.
3. Verify issue, amend, and revoke the investment
registration certificate within their jurisdiction.
4. Provide their advice on matters within their
assigned duties and delegated powers at the request of the Ministries,
provincial People's Committee.
5. Aggregate, evaluate information about the
execution of the projects that fall inside their area of competence.
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7. Request the Prime Minister to consider, decide
the implementation of investment projects in the other forms of investment
guarantees that have not been governed in this Decree.
8. Perform other assigned duties and exercise other
delegated powers according to the legal regulation.
Chapter XI
IMPLEMENTARY PROVISIONS
Article 71. Effect
1. This Circular shall take effect from April 10,
2015.
2. The following Decrees or Decisions shall become
invalid from the effective date of this Decree:
a) The Decree No. 108/2009/NĐ-CP dated November 27,
2009 by the Government on the investment in the form of BOT contract, BTO
contract and BT contract;
b) The Decree No. 24/2011/NĐ-CP dated April 05,
2011 by the Government providing amendments to a number of articles of the
Decree No. 108/2009/NĐ-CP on the investment in the form of BOT, BTO and BT
contracts;
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Article 72. Transitional
provisions
1. The list of projects to be announced prior to
the effective date of this Decree must be revised and re-approved under the
provisions of this Decree, unless otherwise approved by Prime Minister.
2. The feasibility study report was approved before
the effective date of this Decree is not required to be re-approved under the
provisions of this Decree.
3. The project of which investor selection result
is approved before the effective day of this Decree shall not be required to go
through the investor re-selection process in accordance with regulations laid
down in this Decree.
4. The project contracts that are initialed before
the effective day of this Decree shall not be re-negotiated.
5. The implementation of project that has been
granted the investment certificate or for which the contract has been
officially signed before the effective day of this Decree shall proceed
according to the regulation defined in the investment certificate and the
project contracts.
6. If a project has obtained a written commitment
or approval by the Prime Minister or Ministries, provincial People’s Committees
and regulatory bodies on the use of the State funding for the project,
incentive and investment guarantee and other contents related to the
implementation of the project before the effective day of this Decree, the
execution of the project shall proceed according to these such documents
7. The projects other than those mentioned above
shall be governed under the Decision of the Prime Minister according to the
proposal from the Ministry of Planning and Investment.
Article 73. Implementation
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PP. THE
GOVERNMENT
THE PRIME MINISTER
Nguyen Tan Dung