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THE
MINISTRY OF INDUSTRY AND TRADE
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THE
SOCIALIST REPUBLIC OF VIETNAM
Independence - Freedom - Happiness
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No.
43/2016/TT-BCT
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Hanoi,
December 30, 2016
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CIRCULAR
PRESCRIBING PROJECT DEVELOPMENT COMMITMENTS AND THE
MECHANISM FOR HANDLING POWER PLANT PROJECTS FAILING TO MEET COMMITTED SCHEDULES
Pursuant to November 26, 2014
Investment Law No. 67/2014/QH13;
Pursuant to the December 3, 2004
Electricity Law and the November 20, 2012 Law Amending and Supplementing a
Number of Articles of the Electricity Law;
Pursuant to June 18, 2014
Construction Law No. 50/2014/QH13;
Pursuant to the November 29,
2013 Land Law;
Pursuant to the Government’s
Decree No. 137/2013/ND-CP of October 21, 2013,
detailing the implementation
of a number of articles of the Electricity Law and the Law Amending and
Supplementing a Number of Articles of the Electricity Law;
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Pursuant to the Government’s
Decree No. 118/2015/ND-CP of November 12, 2015, detailing and guiding the
implementation of a number of articles of the Investment Law;
Pursuant to the Government’s
Decree No. 59/2015/ND-CP of June 18, 2015, on management of construction
investment projects;
Pursuant to the Government’s
Decree No. 15/2015/ND-CP of February 14, 2015, on public-private partnership
investment;
Pursuant to the Government’s
Decree No. 95/2012/ND-CP of November 12, 2012, defining the functions, tasks,
powers and organizational structure of the Ministry of Industry and Trade;
In implementation of the
Prime Minister’s direction in the Government Office’s Notice No. 385/TB-VPCP of
November 23, 2015, on concluding opinions of Deputy
Minister Hoang Trung Hai at
the meeting on the Minister draft decision on project development commitments
and the mechanism for handling power plants with BOO (Build-Own-Operate)
investment and under BOT (Build-Operate-Transfer) contracts which fail to meet
committed schedules;
At the proposal of the
General Director of Energy,
The Minister of Industry and
Trade promulgates the Circular prescribing project development commitments and
the mechanism handling power plant project failing to meet committed
schedules.
Chapter
I
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Article
1. Scope of
regulation
This Circular
prescribes commitments to developing PPP (public-private partnership) projects
on power plants each with a capacity of 30 MW or higher and non-PPP power
plants each with a capacity of 30 MW or higher implemented by domestic or
foreign investors or foreign-invested economic organizations; and the mechanism
for handling power plants failing to meet committed schedules.
Article
2. Subjects of
application
This Circular applies
to:
1. Investors of power
plant projects each with a capacity of 30 MW or higher in the territory of
Vietnam.
2. Agencies and
organizations involved in the investment and construction of power plants in
the territory of Vietnam.
Article 3. Interpretation of terms
1. Power plant project
invested under a public-private partnership contract (below referred to as PPP
power plant project) means a power plant project invested by an investor in the
form of public-private partnership (PPP) under the Government’s Decree No.
15/2015/ND-CP of February 14, 2015, on public-private partnership investment.
2. PPP power plant
investor means an individual investor (in case only one investor develops the
project) or an investor group (in case various investors jointly contribute
capital to develop the project) assigned the right to develop a PPP power plant
project.
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4. Project development
right means the right of an investor to develop a project in accordance with
the regulations and law of Vietnam after being assigned by a competent state
agency.
5. Project documents
means documents used in a PPP power plant project, including power purchase
agreement (PPA), land lease agreement (LLA), fuel supply contracts (if any) and
other contracts (if any).
6. PPP contract means
a contract signed between a competent state agency and an investor to develop a
project in the form of public-private partnership prescribed in the
Government’s Decree No. 15/2015/ND-CP of February 14, 2015, on public-private
partnership investment.
7. Force majeure event
means a misfortune which occurs in an objective manner without being
anticipated and cannot be handled even though all necessary measures have been
applied to the utmost in the course of carrying out power plant construction
investment activities.
8. MOU stands for a
memorandum of understanding on development of a PPP power plant project.
9. Project development
commitment means a written commitment made by a non-PPP power plant investor on
power plant project development milestones in order to ensure the approved
schedule for operation of the plant is met.
10. Project
development milestones means points of time associated with tasks decisive to
the schedule for implementation and completion of a project.
11. Written assignment
of the project development right means a document or decision of the Prime
Minister or a competent authority notifying the assignment of the project
development right to an investor or an investor group.
12. FS stands for
feasibility study report.
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14. LLA stands for
land lease agreement.
Chapter
II
PROVISIONS
ON PPP POWER PLANT PROJECTS
Article
4. Time limit
for memorandum of understanding signing
Within 90 working days
after being assigned the right to develop a PPP power plant project, the PPP
power plant investor and the Ministry of Industry and Trade shall sign an MOU.
Article
5. Contents of a
memorandum of understanding
In addition to the
prescribed contents on PPP power plant project development, an MOU must contain
the following contents:
1. Rights and
obligations of the PPP power plant investor and the Ministry of Industry and
Trade in the course of power plant project investment in order to meet the
approved schedule for operation of the plant.
2. A project
implementation plan, which must contain at least the following project
development milestones:
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b/ Schedule for
elaboration and approval of FS, including date of submission and date of
approval;
c/ Plan for
negotiations on PPP contract and related documents;
d/ Agenda of
negotiations on related documents: PPA, LLA, EPC (Engineering, Procurement and
Construction) contract and fuel supply contracts (if any); other contracts (if
any);
dd/ Time of initialing
project documents;
e/ Date of submission
of investment registration certificate application dossier; date of official
signing of project documents and PPP contract;
g/ Schedule for
financial contribution;
h/ Schedule for
groundbreaking and construction, including date of project groundbreaking; date
of commercial operation of each turbine; date of commercial operation of the
entire plant.
Article
6. Adjustment of
PPP power plant project development milestones
When a project likely
fails to meet project development milestones committed under the MOU, the PPP power
plant investor shall implement measures to settle problems to ensure
accomplishment of these milestones. The Ministry of Industry and Trade and PPP
power plant investor may adjust project development milestones under the MOU
prescribed at Points a, b, c, d and dd, Clause 2, Article 5 of this Circular
only in the following cases:
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2. The project fails
to meet committed milestones due to acts of state management agencies with
authority over work items under those milestones:
a/ Within 15 working
days after a committed milestone is delayed, the PPP power plant investor shall
send to the Ministry of Industry and Trade a written request for adjustment of
that project development milestone and explain such delay is caused by acts of
a state management agency with authority over work items under that milestone.
Within 10 working days after receiving the written request, the Ministry of
Industry and Trade shall give a written reply to the PPP power plant investor,
giving its opinion about the causes of the delay other than the investor’s
fault, as a basis for inviting the latter to sign the adjustment of project
development milestones under the MOU;
b/ Within 10 working
days after issuing a reply to the PPP power plant investor, if determining that
a state management agency with authority over work items at a milestone has
committed acts that delay that project development milestone, the Ministry of
Industry and Trade shall issue a document urging, reminding or handling in
accordance with regulations the agency or unit under its management or send a
document to related managing ministries or report to the Prime Minister, if the
agency or unit is not under the Ministry of Industry and Trade’s management.
3. Delay due to a
third party directly involved in work items under project development
milestones:
a/ Within 15 working
days after a committed milestone is delayed, a PPP power plant investor shall
send to the Ministry of Industry and Trade a written request for adjustment of
project development milestones and explain the delay is caused by a third party
directly involved in work items under that project development milestone.
Within 10 working days after receiving the written request, the Ministry of Industry
and Trade shall request in writing the third party directly involved in work
items under that milestone to give its written opinions about the causes of the
delay of the project development milestone as reported by the investor within
15 working days. Within 10 working days after receiving a written reply from
the third party, the Ministry of Industry and Trade shall give a written reply
to the PPP power plant investor, giving its opinions about the causes of the
delay other than the investor’s fault, as a basis for inviting the latter to
sign the adjustment of project development milestones under the MOU;
b/ Within 10 working days after issuing a reply to the PPP power plant
investor, if determining that the third party directly involved in work items under
that milestone causes the delay of a project development milestone, the
Ministry of Industry and Trade shall issue a document urging, reminding or
handling in accordance with regulations the agency or unit under its management
or send a document to related managing ministries or report to the Prime
Minister, if the agency or unit is not under the Ministry of Industry and
Trade’s management.
4. Adjustment of
milestones under the financial contribution schedule and construction schedule
shall be based on signed project documents or PPP contract.
5. The Ministry of
Industry and Trade’s document giving its opinions about the causes of the delay
of project development milestones other than the investor’s fault may only be
used as the basis for adjustment of project development milestones under the
MOU, but not for other purposes.
6. In case adjustment
of project development milestones consequently delays the committed schedule
officially signed under project documents and PPP contract for 12 months or
longer, the Ministry of Industry and Trade shall propose the Prime Minister in
writing to consider approving the adjustment of the schedule for operation of
the project before adjustment of project development milestones under the MOU
is signed.
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The mechanism for
handling PPP power plant projects failing to meet committed schedules shall be
applied from the time a competent agency issues a document assigning the project
development right to the time project documents and PPP contract are officially
signed. The mechanism for handling a PPP power plant project failing to meet
its committed schedule is as follows:
1. For a delay of over
30 working days for every milestone committed under the MOU, the Ministry of
Industry and Trade shall issue a document reminding and requesting the PPP
power plant investor to promptly accomplish the delayed work items and ensure
the subsequent milestone is not affected. Thirty working days after giving the
first written reminder, if the PPP power plant investor fails to meet the
milestone which has been delayed, the Ministry of Industry and Trade shall give
the second written reminder. The number of reminders for each milestone must not
exceed 2.
2. Within 1 year after
the Ministry of Industry and Trade issues the first document notifying a
delayed milestone, in case the investor fails to accomplish the delayed
milestone and the overall schedule of the project is delayed for an accumulative
12 months against the one committed under the MOU, the Ministry of Industry and
Trade shall request a competent agency in writing to consider issuing a
document terminating the investor’s project development right for assignment to
another investor.
3. A PPP power plant
investor that has its project development right terminated and its investment
certificate revoked by a competent agency shall incur all project development
costs it has spent or arising before the time the project development right is
terminated without indemnity.
4. For milestones
following the official signing of documents and PPP contract, the mechanism for
handling delayed milestones shall be applied under the PPP contract.
Chapter
III
PROVISIONS
ON NON-PPP POWER PLANT PROJECTS
Article
8. Time limit
for elaboration and submission of project development commitments
1. Within 90 working
days after being assigned the project development right, a non-PPP power plant
investor shall make and send to the Ministry of Industry and Trade a project
development commitment for supervision, monitoring, management and urging of
the accomplishment of the project schedule.
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3. If receiving no
project development commitment 180 working days after the investor is assigned
the project development right, the Ministry of Industry and Trade shall request
a competent agency in writing to consider issuing a document terminating the
investor’s project development right for assignment to another investor.
Article 9. Project development commitment
contents
A project development
commitment must contain the following principal contents:
1. The non-PPP power
plant investor’s commitment on power plant project development milestones to
ensure the approved schedule for operation of the project is met.
2. The project
implementation plan, which must contain at least the following project
development milestones:
a/ Schedule for
elaboration and approval of project site planning (if any), including date of
submission and date of approval:
b/ Schedule for elaboration
and approval of FS, including date of submission and date of approval;
c/ Schedule for
elaboration and approval of the work construction design (technical design,
construction drawing design and construction cost estimates);
d/ Schedule for elaboration
of dossiers of application for an investment registration certificate and a
construction permit: date of submission and date of approval;
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e/ Schedule for
negotiations on and signing of major agreements of the project, including LLA;
loan contract; PPA; construction contract; equipment supply contract; EPC
contract;
g/ Schedule for
groundbreaking and construction, including date of project groundbreaking; date
of commercial operation of each turbine; date of commercial operation of the
entire plant.
Article
10. Adjustment
of project development milestones
In case a project
likely fails to meet its development milestones under the project development
commitment, the non-PPP power plant investor shall implement measures to settle
problems to ensure the committed milestones are met. Project development
milestones under the project development commitment prescribed at Points a, b,
c, d and dd, Clause 2, Article 9 of this Circular may be adjusted only in the
following cases:
1. Delay due to a
force majeure event: Within 15 working days after encountering a force majeure
event, a non-PPP power plant investor shall notify it in writing to the
Ministry of Industry and Trade and request adjustment of the project
development milestones. Within 5 working days after receiving the notice, the
Ministry of Industry and Trade shall send a document to the non-PPP power plant
investor, giving its opinions about the force majeure event, as a basis for the
investor to adjust project development milestones under the project development
commitment.
2. The project fails
to meet its committed milestones due to acts of state management agencies with
authority over work items under those milestones:
a/ Within 15 working
days after a committed milestone is delayed, a non-PPP power plant
investor shall send to the Ministry of Industry and Trade a written request for
adjustment of that project development milestone and explain such delay is
caused by acts of a competent state management agency with authority over work
items under that milestone. Within 10 working days after receiving the written
request, the Ministry of Industry and Trade shall give a written reply to the
non-PPP power plant investor, giving its opinions about the causes of the delay
other than the investor’s fault, as a basis for the investor to adjust project
development milestones under the project development commitment;
b/ Within 10 working
days after issuing a reply to the non-PPP power plant investor, if determining
that a competent state management agency with authority over work items under
that milestone has committed acts that delay a project development milestone,
the Ministry of Industry and Trade shall issue a document urging, reminding or
handling in accordance with regulations the agency or unit under its management
or send a document to related managing ministries or report to the Prime
Minister, if the agency or unit is not under the Ministry of Industry and
Trade’s management.
3. Delay due to a
third party directly involved in work items under project development
milestones:
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b/ Within 10 working
days after issuing a reply to the non-PPP power plant investor, if determining
that the third party directly involved in work items under that milestone
causes the delay of project development milestones, the Ministry of Industry
and Trade shall issue a document urging, reminding or handling in accordance
with regulations the agency or unit under its management or send a document to
related managing ministries or report to the Prime Minister, if the agency or
unit is not under the Ministry of Industry and Trade’s management.
4. The Ministry of
Industry and Trade’s document giving its opinions about the causes of delay in
meeting project development milestones other than the investor’s fault may only
be used as the basis for adjustment of project development milestones under the
project development commitment, but not for other purposes.
6. In case adjustment
of project development milestones results in a delay of 12 months or longer
against the committed schedule, the Ministry of Industry and Trade shall
propose the Prime Minister in writing to consider approving adjustment of the
schedule for official operation of the project before project development
milestones under the project development commitment are adjusted.
Article
11. Mechanism
for handling non-PPP power plant projects failing to meet committed schedules
The mechanism for
handling non-PPP power plant projects failing to meet committed schedules shall
be applied from the time a competent agency issues a document assigning the
project development right to the time the investment project implementation is
secured under Article 42 of Investment Law No. 67/2014/QH13 and Article 27 of
the Government’s Decree No. 118/2015/ND-CP of November 12, 2015, detailing and
guiding the implementation of a number of articles of the Investment Law. The
mechanism for handling a non-PPP power plant project failing to meet its
committed schedule is as follows:
1. Termination of the
project development right:
a/ For a delay of over
30 working days against every milestone committed under the project development
commitment, the Ministry of Industry and Trade shall issue a document reminding
and requesting the non-PPP power plant investor to promptly accomplish the
delayed work item and ensure the subsequent milestone is not affected. Thirty
working days after giving the first written reminder, if the non-PPP power
plant investor fails to meet the milestone which has been delayed, the Ministry
of Industry and Trade shall give the second written reminder. The number of
reminders for each milestone must not exceed 2;
b/ Within 1 year after
the Ministry of Industry and Trade issues the first document notifying a
delayed milestone, in case the investor fails to accomplish this milestone and
the overall schedule of the project is delayed for an accumulative 12 months
against the one committed under the project development commitment, the
Ministry of Industry and Trade shall request a competent agency in writing to
consider issuing a document terminating the investor’s project development
right for assignment to another investor.
2. Revocation of the
land use rights certificate, investment policy decision and investment registration
certificate: Within 10 working days after a competent agency issues a document
terminating an investor’s project development right, the Ministry of Industry
and Trade shall send a written notice to competent agencies for carrying out
procedures to revoke the land use rights certificate granted to the project and
the investment registration certificate in accordance with the Land Law and the
Investment Law.
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Chapter IV
IMPLEMENTATION
PROVISIONS
Article 12.
Organization of
implementation
1. The General
Directorate of Energy shall disseminate, and guide and examine the
implementation of, this Circular.
2. Power plant
investors shall:
a/ Sign supplements to
MOUs or send supplements to project development commitments in accordance with
this Circular;
b/ Monthly (before the
end of the last working week of a month) send reports on the implementation of
work items under committed project development schedules to the General
Directorate of Energy and provincial-level People’s Committees of localities
where their projects are implemented.
Article
13. Transitional
provisions
1. For PPP power plant
projects to which the development right has been assigned and for which an MOU
has been signed before the effective date of this Circular but of which other
documents and the PPP contract have not been officially signed, within 90
working days after the effective date of this Circular, the Ministry of
Industry and Trade and investors shall sign supplements to MOUs which only
include remaining project development milestones and application of the
violation-handling mechanism prescribed in Chapter II of this Circular.
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3. For non-PPP power
plant projects to which the development right has been assigned before the
effective date of this Circular but which does not have security for investment
project implementation yet, within 90 working days after the effective date of
this Circular, investors shall supplement project development commitments and
send them to the Ministry of Industry and Trade. The project development
commitments only include remaining project development milestones up to the
time of having security for investment project implementation and the
violation-handling mechanism prescribed in Chapter II of this Circular shall
apply to the projects’ subsequent steps.
Article
14. Effect
1. This Circular takes
effect on February 15, 2017.
2. Any problems
arising in the course of implementation of this Circular should be reported
directly to the Ministry of Industry and Trade for consideration and
settlement.
3. Ministers, heads of
ministerial-level agencies, heads of government-attached agencies, chairpersons
of provincial-level People’s Committees, the chairperson of Vietnam Electricity
Members’ Council and related organizations and persons shall implement this
Circular.-
MINISTER OF
INDUSTRY AND TRADE
Tran Tuan Anh