|
THE OFFICE OF
THE NATIONAL ASSEMBLY OF VIETNAM
----------
|
THE SOCIALIST
REPUBLIC OF VIET NAM
Independence-Freedom-Happiness
-----------------
|
|
No. 21/VBHN-VPQH
|
Hanoi, September
16, 2024
|
LAW
ON PUBLIC-PRIVATE
PARTNERSHIP INVESTMENT
The Law on Public – Private Partnership Investment
No. 64/2020/QH14 dated June 18, 2020 of the National Assembly, which comes into
force from January 01, 2021, except for Clause 6 Article 101, is amended by:
1. The Law No. 03/2022/QH15 dated January 11, 2022
of the National Assembly on amendments to the Law on Public Investment, the Law
on Public-Private Partnership Investment, the Law on Investment, the Law on
Housing, the Law on Bidding, the Law on Electricity, the Law on Enterprises,
the Law on Excise Tax, and the Law on Civil Judgment Enforcement, which comes
into force from March 01, 2022;
2. The Law on Water Resources No. 28/2023/QH15
dated November 27, 2023 of the National Assembly, which comes into force from
July 01, 2024.
3. The Law on Roads No. 35/2024/QH15 dated June 27,
2024 of the National Assembly, which comes into force from January 01, 2025.
Pursuant to the Constitution of the Socialist
Republic of Vietnam;
The National Assembly hereby promulgates the Law
on Public – Private Partnership Investment[1].
...
...
...
Hãy đăng nhập hoặc đăng ký Thành viên
Pro tại đây để xem toàn bộ văn bản tiếng Anh.
GENERAL PROVISIONS
Article 1. Scope
This Law provides for public - private partnership
(PPP) investments; state management, rights, obligations and responsibilities
of agencies, organizations and individuals involved in public - private
partnership investments.
Article 2. Regulated entities
This Law applies to parties to PPP investment
contracts, regulatory authorities in charge of managing PPP investments, and
other authorities, organizations and individuals involved in PPP investments.
Article 3. Definitions
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’ issuance of investment policy decisions.
2. “Feasibility study report” refers to a
written document describing subject matters of the study related to the
necessity, feasibility and effectiveness of a PPP project as a basis for
competent authorities’ approval of that project.
...
...
...
Hãy đăng nhập hoặc đăng ký Thành viên
Pro tại đây để xem toàn bộ văn bản tiếng Anh.
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.
7. “Shortlist” refers to the list of
successfully prequalified investors when participating in an open bid subject
to prequalification requirements or the list of investors invited to
participate in a competitive negotiation.
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.
...
...
...
Hãy đăng nhập hoặc đăng ký Thành viên
Pro tại đây để xem toàn bộ văn bản tiếng Anh.
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 and submitted by a bidder to a bid solicitor according to
requirements of an invitation for prequalification.
13. “Bid” means all documents prepared and
submitted by a bidder to a bid solicitor according to requirements of the
bidding documents.
14. “Invitation for prequalification” means
all documents for request for a bidding investor’s competence and experience as
a basis for the bid solicitor’s shortlisting.
15. “Bidding documents” means all documents
used for selecting a qualified investor, including requirements for project
implementation set forth as a basis for an investor’s preparation of responsive
bid, and a bid solicitor’s evaluation of bids and contract negotiation in order
to select an investor that meets 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”);
...
...
...
Hãy đăng nhập hoặc đăng ký Thành viên
Pro tại đây để xem toàn bộ văn bản tiếng Anh.
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.
17. “Investor selection” means the process
of identifying an investor with sufficient competence, experience, and feasible
solutions to implement a PPP project on the principle of ensuring competition,
fairness, transparency and economic efficiency.
18. ”PPP investor” (hereinafter referred to as
”investor”) is an independent juridical person established under the
provisions of law, or established by entering into partnership amongst multiple
juridical persons 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;
...
...
...
Hãy đăng nhập hoặc đăng ký Thành viên
Pro tại đây để xem toàn bộ văn bản tiếng Anh.
c) [2]
Irrigation; clean water supply; water drainage and wastewater treatment; waste treatment;
development and storage of water and restoration of water sources;
d) Healthcare; education – training;
dd) Information technology infrastructure.
2. Minimum investment capital requirement for a PPP
project shall be prescribed as follows:
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;
...
...
...
Hãy đăng nhập hoặc đăng ký Thành viên
Pro tại đây để xem toàn bộ văn bản tiếng Anh.
c) PPP projects falling under the authority to
grant investment policy decisions delegated to Ministers, heads of central
authorities and other agencies 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.
Article 5. Competent authorities and authorities
signing PPP project contracts
1. Competent authorities, including:
a) Ministries, Ministerial 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 to make state budget estimates
according to the provisions of law on state budget (hereinafter referred to as
”other authorities”).
2. Authorities signing PPP project contracts,
including:
...
...
...
Hãy đăng nhập hoặc đăng ký Thành viên
Pro tại đây để xem toàn bộ văn bản tiếng Anh.
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.
Article 6. PPP Project Assessment Boards
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) Grassroots-level 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 authorities 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.
...
...
...
Hãy đăng nhập hoặc đăng ký Thành viên
Pro tại đây để xem toàn bộ văn bản tiếng Anh.
4. The PPP Project Assessment Boards and units
performing the assessment tasks may hire independent consultants to work for
them.
5. The Government shall elaborate on this Article.
Article 7. PPP investment management principles
1. Ensuring relevance to related national
socio-economic development strategies, plans and other planning schemes in
accordance with law on planning.
2. Ensuring the effective management and use of
State resources invested in PPP projects.
3. 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 balance between interests of the
State, investors, users and the community.
Article 8. State management of PPP investments
...
...
...
Hãy đăng nhập hoặc đăng ký Thành viên
Pro tại đây để xem toàn bộ văn bản tiếng Anh.
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 handle
violations related to PPP investments; address any petitions or recommendations
related to the investor selection process.
5. Organize and carry out investment promotion and
international cooperation activities regarding PPP investments.
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, and
investor selection results;
...
...
...
Hãy đăng nhập hoặc đăng ký Thành viên
Pro tại đây để xem toàn bộ văn bản tiếng Anh.
d) 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;
g) Investor database;
h) Information on settlement of complaints,
denunciations, petitions and handling of violations against PPP investment law.
2. In addition to being posted on Vietnam 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.
...
...
...
Hãy đăng nhập hoặc đăng ký Thành viên
Pro tại đây để xem toàn bộ văn bản tiếng Anh.
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;
b) Get involved in creating and concurrently
reviewing documentation for invitation for prequalification, bidding documents,
and evaluating bids as well as verifying investor selection result for the same
project;
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 or mother, father-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 within 12 months after
resignation.
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 bidding documents 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, bids, 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;
...
...
...
Hãy đăng nhập hoặc đăng ký Thành viên
Pro tại đây để xem toàn bộ văn bản tiếng Anh.
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) Making an agreement to one or more parties to
prepare bids for the bidders so that one or some parties to such agreement win
the bid.
7. Transferring shares, contributed capital
portions, rights and obligations in breach of the provisions of this Law and
PPP project contracts.
8. Ceasing the supply of public products and
services other than those falling in the cases specified in PPP project
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;
...
...
...
Hãy đăng nhập hoặc đăng ký Thành viên
Pro tại đây để xem toàn bộ văn bản tiếng Anh.
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 handling of any
violation against law on PPP investments.
Article 11. PPP project process
1. Unless otherwise provided in Clause 2 of this
Article, the PPP project process shall be prescribed as follows:
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 project contracts;
dd) Implementing PPP project contracts.
...
...
...
Hãy đăng nhập hoặc đăng ký Thành viên
Pro tại đây để xem toàn bộ văn bản tiếng Anh.
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;
d) Assessing feasibility study
reports, and approving projects;
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
...
...
...
Hãy đăng nhập hoặc đăng ký Thành viên
Pro tại đây để xem toàn bộ văn bản tiếng Anh.
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:
a) Using public investment capital worth VND 10.000
billion or more;
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:
...
...
...
Hãy đăng nhập hoặc đăng ký Thành viên
Pro tại đây để xem toàn bộ văn bản tiếng Anh.
b) [3]
Having total investment equivalent to that in Group A projects in accordance
with the Law on Public Investment and using one or some of these funding
sources, including: central budget capital managed by ministries or central
agencies, 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 01 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.
3. Ministers, Heads of central authorities and
other agencies shall be authorized to grant decisions on investment policies
for PPP projects under their management, except for the projects specified in
Clauses 1 and 2 of this Article.
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 comply with 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 granting decisions on investment
policies for PPP projects falling under the National Assembly’s delegated
authority shall comply with 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;
...
...
...
Hãy đăng nhập hoặc đăng ký Thành viên
Pro tại đây để xem toàn bộ văn bản tiếng Anh.
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 comply with law on public
investment;
d) 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;
e) The National Assembly considers ratifying
resolutions regarding investment policies for PPP projects.
2. Procedures for granting decisions on investment
policies for PPP projects falling under the Prime Minister’s delegated
authority shall comply with 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;
...
...
...
Hãy đăng nhập hoặc đăng ký Thành viên
Pro tại đây để xem toàn bộ văn bản tiếng Anh.
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.
3. Procedures for granting decisions on investment
policies for PPP projects falling under the authority to grant investment
policy decisions delegated to Ministers, heads of central authorities and other
bodies shall comply with the following regulations:
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
assessment 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;
...
...
...
Hãy đăng nhập hoặc đăng ký Thành viên
Pro tại đây để xem toàn bộ văn bản tiếng Anh.
4. Procedures for issuing decisions on investment
policies for PPP projects falling under the delegated authority of provincial
People’s Councils shall comply with 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;
c) Local public investment authorities 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
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 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
...
...
...
Hãy đăng nhập hoặc đăng ký Thành viên
Pro tại đây để xem toàn bộ văn bản tiếng Anh.
a) 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;
d) PPP investment approach brings about more
benefits than other investment approach;
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.
...
...
...
Hãy đăng nhập hoặc đăng ký Thành viên
Pro tại đây để xem toàn bộ văn bản tiếng Anh.
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);
d) Preliminary assessment of the socio-economic
efficiency of the project; preliminary assessment of environmental impacts in
accordance with legislative regulations on environmental protection as applied
to public investment projects;
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 pre-feasibility
study report shall comprise:
a) Written request for assessment;
...
...
...
Hãy đăng nhập hoặc đăng ký Thành viên
Pro tại đây để xem toàn bộ văn bản tiếng Anh.
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:
a) Conformity with requirements
for a project’s eligibility for PPP investment specified in Clause 1 of Article
14 herein;
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 project
contract type;
dd) Mechanism for distribution of
revenue reductions;
e) Funding sources and capital
balancing capability of PPP projects using state capital.
...
...
...
Hãy đăng nhập hoặc đăng ký Thành viên
Pro tại đây để xem toàn bộ văn bản tiếng Anh.
1. Request form for investment policy decision.
2. Draft decision on investment policy.
3. Pre-feasibility study report.
4. Assessment report on pre-feasibility study
report; review and verification report on projects falling under the National
Assembly's delegated authority to grant investment policy decision.
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’s name;
b) Competent authority’s name;
...
...
...
Hãy đăng nhập hoặc đăng ký Thành viên
Pro tại đây để xem toàn bộ văn bản tiếng Anh.
d) Proposed PPP project 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 user-pays principle;
e) Mechanism for guarantee of investment and
distribution of revenue reductions.
2. As for projects using high or new technologies,
apart from those prescribed under the provisions of Clause 1 of this Article,
an investment policy decision also includes the bid solicitor's name, investor
selection form and time of investor selection event.
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, the
total investment increases by 10% or more, or the value of state capital
invested in the PPP project increases, due to the following causes:
a) A project is affected by force
majeure events;
b) Relevant planning, policies and
laws are changed;
c) Pre-feasibility study report is modified.
...
...
...
Hãy đăng nhập hoặc đăng ký Thành viên
Pro tại đây để xem toàn bộ văn bản tiếng Anh.
3. Procedures for a competent authority’s issuance
of a decision to modify an investment policy for a PPP project shall comply
with 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;
b) Contents of a pre-feasibility study report
subject to adjustment or modification;
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:
...
...
...
Hãy đăng nhập hoặc đăng ký Thành viên
Pro tại đây để xem toàn bộ văn bản tiếng Anh.
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;
dd) Explanatory notes on requirements concerning
technical or technological plans, quality standards of construction works,
infrastructure systems or public products and services; design dossiers
prescribed under construction and other relevant laws; connection between
component projects (if any);
e) PPP project 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
...
...
...
Hãy đăng nhập hoặc đăng ký Thành viên
Pro tại đây để xem toàn bộ văn bản tiếng Anh.
a) Written request for assessment;
b) Application form for approval
of the project;
c) Full texts of the feasibility study
report;
d) Full texts of the decision on
investment policy;
dd) Other legislative instruments related to the
project.
2. Assessment of a feasibility study report shall
mainly focus on the following:
a) Conformity with legal bases;
b) 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;
...
...
...
Hãy đăng nhập hoặc đăng ký Thành viên
Pro tại đây để xem toàn bộ văn bản tiếng Anh.
dd) Financial feasibility; plans for organization
of management, business or provision of public products and services;
e) Socio-economic effectiveness.
Article 21. Authority to approve PPP projects
1. The Prime Minister shall be vested with
authority to approve the projects referred to in clause 1 of Article 12 herein.
2. Ministers, Heads of central authorities and
other agencies shall be authorized to approve the projects under their
management as prescribed in Clauses 2 and 3 Article 12 of this Law.
3. Presidents of provincial People’s Committees
shall be mandated to approve the projects under their management as prescribed
in Clauses 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.
...
...
...
Hãy đăng nhập hoặc đăng ký Thành viên
Pro tại đây để xem toàn bộ văn bản tiếng Anh.
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.
Article 23. Contents of investment policy
decision for a PPP project
An investment policy decision for a PPP project
shall include the following main information:
1. Project’s name;
2. Contract signatory’s name;
3. Objectives; scale; location; time of project
execution; land and other natural resource demands;
4. PPP project contract type;
...
...
...
Hãy đăng nhập hoặc đăng ký Thành viên
Pro tại đây để xem toàn bộ văn bản tiếng Anh.
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:
a) A project is affected by force
majeure events;
b) Elements bringing about higher
efficiency for the project appear;
c) There are 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 project
contract, or an increase of at least 10% or appreciation in state capital
invested in a PPP project, processes and procedures for issuance 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 comply with
regulations laid down in Article 19, 20, 21, 22 and 23 of this Law with respect
to modifications or revisions.
...
...
...
Hãy đăng nhập hoặc đăng ký Thành viên
Pro tại đây để xem toàn bộ văn bản tiếng Anh.
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;
d) Other legislative materials related to the
project.
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);
...
...
...
Hãy đăng nhập hoặc đăng ký Thành viên
Pro tại đây để xem toàn bộ văn bản tiếng Anh.
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:
a) Conforming to eligibility
requirements of a project for PPP investment specified at Points a, b, c and d
of Clause 1 of Article 14 in this Law;
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 carried out as follows:
...
...
...
Hãy đăng nhập hoặc đăng ký Thành viên
Pro tại đây để xem toàn bộ văn bản tiếng Anh.
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 cooperate 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,
the reasons shall be clearly stated;
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;
dd) If the project proposal
documentation is not approved, the investor shall bear all costs and risks.
2. Projects proposed by investors
shall be subject to the assessment and investment policy decision according to
the provisions of Articles 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 Articles 21, 22 and 23 herein;
...
...
...
Hãy đăng nhập hoặc đăng ký Thành viên
Pro tại đây để xem toàn bộ văn bản tiếng Anh.
4. Project announcement procedures
shall comply with 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) Regarding 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 shall agree with a relevant competent
authority about unpublished information.
5. The adjustment or modification
of a PPP project investment policy shall comply with regulations laid down in
Article 18 herein while the adjustment or modification of a PPP project shall
comply with regulations laid down in Article 24 herein.
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
...
...
...
Hãy đăng nhập hoặc đăng ký Thành viên
Pro tại đây để xem toàn bộ văn bản tiếng Anh.
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;
c) Selecting investors;
d) Evaluating bids;
dd) Submitting, assessing, approving and publishing
investor selection results;
e) Negotiating, finalizing and concluding a PPP
project 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.
...
...
...
Hãy đăng nhập hoặc đăng ký Thành viên
Pro tại đây để xem toàn bộ văn bản tiếng Anh.
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
An investor in lawful status must
meet the following requirements:
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;
...
...
...
Hãy đăng nhập hoặc đăng ký Thành viên
Pro tại đây để xem toàn bộ văn bản tiếng Anh.
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;
2. The party giving counsel on the
assessment of the pre-feasibility study report or the feasibility study report;
3. The party giving counsel on the
formulation and assessment of the invitation for prequalification and bidding
documents; 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.
...
...
...
Hãy đăng nhập hoặc đăng ký Thành viên
Pro tại đây để xem toàn bộ văn bản tiếng Anh.
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 investor selection
process
The language used in the process of selection of
domestic investors shall be Vietnamese; the language used in the process of
selection of international investors shall be either English or Vietnamese and
English.
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 bidding documents 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 bidding documents 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 bidding documents. 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.
...
...
...
Hãy đăng nhập hoặc đăng ký Thành viên
Pro tại đây để xem toàn bộ văn bản tiếng Anh.
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 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;
b) The investor violates the law on bidding to the
extent that such violation leads to the bid cancellation as prescribed in Point
dd Clause 1 Article 34 herein;
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
have failed to provide 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 or bids do
not meet the requirements of the invitation for prequalification or the bidding
documents;
...
...
...
Hãy đăng nhập hoặc đăng ký Thành viên
Pro tại đây để xem toàn bộ văn bản tiếng Anh.
c) The invitation for prequalification or the
bidding documents fail 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;
d) 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.
2. Organizations and individuals that commit
violations to the extent of bid cancellation as prescribed at Points c, d and
dd Clause 1 of this Article shall pay compensation to related parties and shall
be subject to actions prescribed by law.
Article 35. Bid solicitor’s responsibilities
during investor selection process
1. Assume responsibility to the 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.
...
...
...
Hãy đăng nhập hoặc đăng ký Thành viên
Pro tại đây để xem toàn bộ văn bản tiếng Anh.
Article 36. Handling of investor selection
situations arising in 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:
a) Such decisions must be issued to ensure
competitiveness, fairness, transparency and economic efficiency;
b) Such decisions must be made based on the investment
policy decision; the project approval decision; the invitation for
prequalification or bidding documents; prequalification applications or bids;
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.
...
...
...
Hãy đăng nhập hoặc đăng ký Thành viên
Pro tại đây để xem toàn bộ văn bản tiếng Anh.
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;
2. Projects use high technologies on the list of
high technologies prioritized for investment and development thereof under the
provisions of the law regarding high technologies;
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 Clause 4 of Article 52 in this Law to
ensure continuity in the project implementation process.
...
...
...
Hãy đăng nhập hoặc đăng ký Thành viên
Pro tại đây để xem toàn bộ văn bản tiếng Anh.
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 following:
a) Basic project information;
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 APPLICATIONS OR BIDS
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 invitation for
prequalification. The scoring method shall be developed based on the evaluation
standards for prequalification applications as specified in Clause 2 of this
Article.
...
...
...
Hãy đăng nhập hoặc đăng ký Thành viên
Pro tại đây để xem toàn bộ văn bản tiếng Anh.
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;
c) Past disputes and claims
related to contracts that have been completed or being executed.
Article 42. Methods and
standards for evaluation of bids
1. Capability and experience evaluation shall be
made according to the 100 or 1,000-point grading system referred to in the
bidding documents. 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 bidding documents. 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 bidding
documents. 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;
...
...
...
Hãy đăng nhập hoặc đăng ký Thành viên
Pro tại đây để xem toàn bộ văn bản tiếng Anh.
c) Standards for social and state benefits.
4. The Government shall elaborate on this Article.
Article 43. Pre-approval inspection of investor
selection results
An investor may obtain a recommendation for
selection if they meet the following requirements:
1. Their bid is considered valid;
2. They satisfy capability and experience
requirements;
3. They conform to technical requirements;
4. They meet financial – commercial requirements;
5. Their bid is ranked first.
...
...
...
Hãy đăng nhập hoặc đăng ký Thành viên
Pro tại đây để xem toàn bộ văn bản tiếng Anh.
INCORPORATION AND OPERATION OF PPP PROJECT
ENTERPRISES; PPP PROJECT 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 project
contract. The application for enterprise registration shall contain the details
prescribed by the Law on Enterprises and the decision on approval of investor
selection results.
2. PPP project enterprises may issue corporate
bonds in accordance with Article 78 of this Law.
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 the Law
on Enterprises, and regulations of other relevant laws and PPP project
contracts.
Article 45. Classification of PPP project
contracts
1. The group of project contracts applying the
user-pays principle 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;
...
...
...
Hãy đăng nhập hoặc đăng ký Thành viên
Pro tại đây để xem toàn bộ văn bản tiếng Anh.
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;
b) BLT contract means the contract under which a PPP
project investor or enterprise is assigned the right to build infrastructure
works or systems, and supply public products and services on the basis of
operating and exploiting these works or systems within a specified period of
time; the transferee-to-be signs a service lease and pays the PPP project
investor or enterprise; upon expiry of such term, the PPP project investor or
enterprise transfers these works or systems to the State.
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.[4] In respect of the projects prescribed
in Point b Clause 9 Article 3 hereof, user-pays contracts shall not apply,
except for upgradation, expansion, modernization, operation and business of
existing expressway infrastructure works or systems, or renovation and
upgradation of existing roads into expressways, but the users' rights to choose
must be reserved.
Article 46. PPP project contract documentation
1. PPP project contract
documentation shall comprise the following main documents:
a) PPP project contract, including
general and specific terms and conditions;
...
...
...
Hãy đăng nhập hoặc đăng ký Thành viên
Pro tại đây để xem toàn bộ văn bản tiếng Anh.
c) Contract negotiation minutes;
d) Decision on approval of
investor selection results;
dd) Bid and other documents
clarifying the selected investor’s bid;
e) Bidding documents and other
documents stating amendments and supplements to the bidding documents.
2. If there is any change in any
contractual terms and conditions, parties shall sign appendices to the
contract.
Article 47. Basic contents of PPP project
contracts
1. A PPP project contract shall, inter alia,
contain the following information:
a) Objectives, scale, location and schedule of
implementation of a project; time and duration of an 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;
...
...
...
Hãy đăng nhập hoặc đăng ký Thành viên
Pro tại đây để xem toàn bộ văn bản tiếng Anh.
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;
g) Performance
security; rights of ownership, management, and exploitation of assets related
to the project; rights and obligations of the PPP project investor or
enterprise; the agreement on use of a third-party guarantee service with
respect to the obligations of the contract signatory;
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.
...
...
...
Hãy đăng nhập hoặc đăng ký Thành viên
Pro tại đây để xem toàn bộ văn bản tiếng Anh.
3. The Government shall stipulate
standard form contracts applicable to types of contracts specified in Article
45 of this Law.
Article 48. Performance
security for PPP project contracts
1. The PPP project enterprise must
provide a contract performance security before the effective date of the
contract.
2. Based on the scale and nature
of each project, the value of a contract performance security shall be
specified in the bidding documents at a determined rate of between 01% and 03%
of total investment in the project.
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 of the contract performance security
after discharge of their contractual obligation to build the infrastructure
work or 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 Clause 2 of Article 52 in this Law;
...
...
...
Hãy đăng nhập hoặc đăng ký Thành viên
Pro tại đây để xem toàn bộ văn bản tiếng Anh.
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 contracts
1. A contract shall be signed on
the basis of a decision on approval of investor selection result, contract
negotiation result or bid that remains valid, or investor's capability
information which is updated at the time of contract conclusion and the bidding
documents.
2. The investor and the PPP
project enterprise may form a party and jointly sign a contract with the
contracting authority.
3. As for investors in
partnerships, all member partners must directly append their signatures and
stamps (if any) into the contract.
Article 50. Modification or revision of PPP
project 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;
...
...
...
Hãy đăng nhập hoặc đăng ký Thành viên
Pro tại đây để xem toàn bộ văn bản tiếng Anh.
d) A PPP project 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
project 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;
b) The contracting parties
negotiate the proposed updates to the contract, including prices and charges of
public products and services; contract term; other matters of the contract
whenever there is any change thereof;
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 project 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. Term of PPP project contract
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.
...
...
...
Hãy đăng nhập hoặc đăng ký Thành viên
Pro tại đây để xem toàn bộ văn bản tiếng Anh.
a) There is any delay in completing the
construction phase or any interruption in the operation of the infrastructure work
or 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;
d) There is any change in planning, policies and
related laws to the extent of a reduction in revenue by less than 75% compared
with the revenue in the financial plan specified in the contract;
dd) The revenue increases by at least 125% compared
to the revenue inscribed in the financial plan specified in the contract.
Article 52. Termination of PPP project contract
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;
...
...
...
Hãy đăng nhập hoặc đăng ký Thành viên
Pro tại đây để xem toàn bộ văn bản tiếng Anh.
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.
3. The contracting authority must report to the
competent authority before the contract termination.
4. In case of termination of a PPP project 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) [5]
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 infrastructure work or system with respect
to the project under construction; the operation and commercial use of the
infrastructure work or system to ensure the continuity of the provision of
public products and services with respect to the project in operation. In
respect to road infrastructure facilities, the contracting authority shall also
assume other responsibilities as prescribed by the Law on Roads and other
relevant laws.
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 project contract is
terminated before expiration of the term specified at Point b 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.
...
...
...
Hãy đăng nhập hoặc đăng ký Thành viên
Pro tại đây để xem toàn bộ văn bản tiếng Anh.
Article 53. Lender’s rights
1. During the process of execution
of a PPP project contract, the lender's rights shall be exercised according to
the parties' agreements made in the credit facility contract, the PPP project
contract and regulations of relevant laws.
2. In case where a PPP project
contract is terminated before expiration and an alternative investor is
selected, the lender shall cooperate with the contracting authority to select
an alternative investor under the provisions of Point b of Clause 1 of Article 39
herein.
3. Regulations laid down in Clause 2 of this
Article must be agreed in writing between the contracting authority and/or the
lender and the investor and/or the PPP project enterprise.
Article 54. Transfer of shares, contributed
capital portions, rights and obligations of PPP project 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
Clauses 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 project contract already in effect;
...
...
...
Hãy đăng nhập hoặc đăng ký Thành viên
Pro tại đây để xem toàn bộ văn bản tiếng Anh.
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:
a) They must not be constrained
from the right to receive transferred items as provided for by law;
b) They must have financial and
administrative capacity to execute PPP project 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 project 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 project contract on condition
that such agreements are not in breach of basic rules of Vietnamese law.
...
...
...
Hãy đăng nhập hoặc đăng ký Thành viên
Pro tại đây để xem toàn bộ văn bản tiếng Anh.
IMPLEMENTATION OF PPP PROJECT CONTRACTS
Section 1. BUILDING OF INFRASTRUCTURE WORKS AND
SYSTEMS
Article 56. Preparation of building sites
Provincial People's Committees
shall assume the prime responsibility for, and cooperate with competent
authorities and contracting entities in, arranging compensation, support and
resettlement, and completing procedures for land allocation, land lease, and
building site handover for project implementation purposes in accordance with
the law on land, PPP and other related contracts.
Article 57. Formulation,
assessment and approval of design following basis design and cost estimate
1. Based on the feasibility study
report and the provisions of the PPP project 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:
...
...
...
Hãy đăng nhập hoặc đăng ký Thành viên
Pro tại đây để xem toàn bộ văn bản tiếng Anh.
b) Design and cost estimate
assessment documentation of specialized authorities.
Article 58. Selection of
contractors 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:
1. Ensure fairness, transparency
and economic efficiency;
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 is bound if the quality of the infrastructure
work or 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 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 infrastructure works and systems
...
...
...
Hãy đăng nhập hoặc đăng ký Thành viên
Pro tại đây để xem toàn bộ văn bản tiếng Anh.
2. In the course of development
and construction of the contractual infrastructure work or 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
infrastructure work or system;
b) Conduct the inspection of
compliance with engineering and construction procedures, standards and
regulations for infrastructure works and systems;
c) Conduct the quality assessment
of construction parts, items and the entire infrastructure work or system
whenever there is any doubt about quality, or upon the competent regulatory
authority's request;
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 comply with the
following regulations:
a) In case where the contracting
authority concludes that the quality of the infrastructure work or 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 infrastructure work or 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 funding
for covering the project implementation expenses specified in Clause 3 of
Article 73 in this Law for payment.
...
...
...
Hãy đăng nhập hoặc đăng ký Thành viên
Pro tại đây để xem toàn bộ văn bản tiếng Anh.
1. After completing the
infrastructure work or 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.
2. After completion of the
infrastructure work or system, the contracting authority and the PPP project
enterprise shall carry out the settlement of public capital invested in
construction of the infrastructure work or system. The settlement value of
investment capital for construction of the infrastructure work or system or the
settlement value of investment capital in projects without construction
components shall be determined on the basis of the contract already in effect.
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 infrastructure work or system.
4. The Government shall elaborate
on this Article.
Article 61. Certification of
completion of infrastructure works and systems
1. After completion, the PPP
project enterprise shall undertake the acceptance testing of the infrastructure
work or 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 infrastructure work
or 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 infrastructure work or system shall not affect the contract term or the
rates of prices and charges of public products and services defined in the
contract.
...
...
...
Hãy đăng nhập hoặc đăng ký Thành viên
Pro tại đây để xem toàn bộ văn bản tiếng Anh.
Section 2. MANAGEMENT AND OPERATION OF
INFRASTRUCTURE WORKS AND SYSTEMS
Article 62. PPP project management
The management of an
infrastructure work or 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.
Article 63. Requirements for
operation of infrastructure works and systems
1. Except for the case specified
in Clause 2 of this Article, PPP project enterprises may operate infrastructure
works or 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 infrastructure works
or systems from the effective date of PPP contracts.
Article 64. Provision of public
products and services
1. During the period of operation
of infrastructure works or 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;
...
...
...
Hãy đăng nhập hoặc đăng ký Thành viên
Pro tại đây để xem toàn bộ văn bản tiếng Anh.
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 infrastructure works or systems
according to the design or process agreed upon in the contract.
2. Competent authorities or
contracting authorities can cooperate with PPP project enterprises in carrying
out the responsibilities specified in Point d of Clause 1 of this Article.
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 project contract according to the principle of ensuring the
interests of the investor, the PPP project enterprise, the users and the State,
providing investors or PPP project enterprises with 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:
...
...
...
Hãy đăng nhập hoặc đăng ký Thành viên
Pro tại đây để xem toàn bộ văn bản tiếng Anh.
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 project contracts.
2. Contracting authorities shall
be responsible for the supervision of the quality of public products and
services provided by PPP project enterprises under PPP project contracts.
3. In case where the quality of
public products and services does not meet the requirements under a PPP project
contract, the contracting authority shall request the PPP project enterprise to
take remedial actions within the time limit specified in the contract; in case
the PPP project enterprise’s failure to take, or delay in taking, remedial
actions, 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
INFRASTRUCTURE WORKS OR SYSTEMS, AND DISCHARGE OF PPP PROJECT CONTRACTS
Article 67. Transfer of infrastructure works and
systems
1. The transfer of infrastructure
works and systems, and the determination of the quality and value of
infrastructure works and systems prior to the transfer shall comply with the
terms and conditions of PPP project contracts. The residual value of the
transferred infrastructure work or 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.
...
...
...
Hãy đăng nhập hoặc đăng ký Thành viên
Pro tại đây để xem toàn bộ văn bản tiếng Anh.
3. The Government shall elaborate
on clause 2 of this Article.
Article 68. Discharge of PPP
project contracts
1. A PPP project contract shall be
discharged as follows:
a) In case where the contracting
parties have already fulfilled their contractual obligations, the contracting
parties shall certify the fulfillment and termination of their rights and
obligations;
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 project contract shall be agreed upon by the contracting parties, but not
exceed 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
PPP PROJECT FUNDING
...
...
...
Hãy đăng nhập hoặc đăng ký Thành viên
Pro tại đây để xem toàn bộ văn bản tiếng Anh.
Article 69. Use of state capital invested in PPP
project
1. State capital may be used for the following
purposes:
a) Supporting the building of infrastructure works
and systems as part of a PPP project;
b) Paying PPP project enterprises for their
provision of public products and services;
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 a project 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.
...
...
...
Hãy đăng nhập hoặc đăng ký Thành viên
Pro tại đây để xem toàn bộ văn bản tiếng Anh.
Article 70. State capital used for supporting
building of infrastructure works and systems
1. State capital used for supporting the building
of infrastructure works or 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 infrastructure works or 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 decision is granted.
3. Proportion and value of state capital used for
supporting the building of infrastructure works or systems shall be paid under
PPP project contracts.
4. State capital used for supporting the building
of infrastructure works and systems shall be allocated from the following
funding sources:
a) Public investment capital prescribed under law
on public investment;
b) [6]
Value of public assets prescribed under law on use and management of public
assets.
In respect of projects on upgradation, expansion,
modernization, operation and business of existing expressway infrastructure
works or systems, or renovation and upgradation of existing roads into
expressways, the state capital participating in PPP projects excludes the value
of existing road infrastructure facilities.
5. Use and management of State capital used for
supporting the building of infrastructure works and systems shall be allocated from
sources of public investment capital according to one of the following
approaches:
...
...
...
Hãy đăng nhập hoặc đăng ký Thành viên
Pro tại đây để xem toàn bộ văn bản tiếng Anh.
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
1. State capital paid for compensation, site
clearance, support and resettlement; temporary work construction support, shall
be allocated from public investment capital in accordance with the law on
public investment.
2. According to 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.
...
...
...
Hãy đăng nhập hoặc đăng ký Thành viên
Pro tại đây để xem toàn bộ văn bản tiếng Anh.
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 comply with the following regulations:
1. According to 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. According to 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;
3. In case where a PPP project has the need to use
public investment capital, but is not on the list of projects specified in the
medium-term public investment plan, the competent authority shall consider
adding it to this list, and use the contingent capital of the medium-term
public investment plan. Processes and procedures for modification of a
medium-term public investment plan must comply with the law on public
investment;
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 comply with the provisions
of Clause 1 and 2 of this Article. Based on the PPP project 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 for covering 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 for covering
regular expenditures of state authorities and public service units to pay PPP
project enterprises in accordance with the law on state budget.
2. Regarding 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.
...
...
...
Hãy đăng nhập hoặc đăng ký Thành viên
Pro tại đây để xem toàn bộ văn bản tiếng Anh.
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 project
contracts. Total amount borrowed through various lending forms must not exceed
total loan amount specified in a PPP project 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
shall not exceed 18 months.
3. Actions to be taken in the event that the
investor or the PPP project enterprise fails to make financial arrangement
within the time limit specified in Clause 2 of this Article must be specified
in the bidding documents.
Article 77. Equity contribution
1. Investor's equity contribution must be at least
15% of total investment in a project, excluding state capital specified in
Articles 70 and 72 of this Law.
2. Investors must make equity contribution
according to the schedule agreed upon in the PPP project 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 laws 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.
...
...
...
Hãy đăng nhập hoặc đăng ký Thành viên
Pro tại đây để xem toàn bộ văn bản tiếng Anh.
a) The amount of capital raised through the bond
issue shall not exceed the value of the loan amount determined in the PPP
project 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 comply with regulations in point b of this clause.
3. If a PPP project enterprise has already operated
for less than 01 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.
4. The Government shall elaborate on this Article.
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.
...
...
...
Hãy đăng nhập hoặc đăng ký Thành viên
Pro tại đây để xem toàn bộ văn bản tiếng Anh.
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 project 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.
3. Guarantee for provision of
public services shall be regulated as follows:
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:
...
...
...
Hãy đăng nhập hoặc đăng ký Thành viên
Pro tại đây để xem toàn bộ văn bản tiếng Anh.
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 infrastructure works or 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
1. The Government shall make its decision to apply
the mechanism to ensure the balanced foreign currency revenues and expenditures
with respect to projects under the authority to grant investment policy
decisions of the National Assembly and the Prime Minister on the basis of
foreign exchange management policy and capability of balancing foreign currency
over periods of time.
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 project 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:
...
...
...
Hãy đăng nhập hoặc đăng ký Thành viên
Pro tại đây để xem toàn bộ văn bản tiếng Anh.
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 project 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.
4. On an annual basis, the parties to PPP project
contracts shall determine the actual revenue and send the results of such
determination to competent financial institutions to carry out the mechanism
for sharing of increased and decreased revenues. Accounting for state budget
revenues and expenditures arising from sharing of the reduced or increased
revenues shall comply with the provisions of law on state budget.
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
...
...
...
Hãy đăng nhập hoặc đăng ký Thành viên
Pro tại đây để xem toàn bộ văn bản tiếng Anh.
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.
2. The examination of PPP investment activities
shall be conducted in a regular or irregular manner according to the decision
of the head of the competent inspecting authority.
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
...
...
...
Hãy đăng nhập hoặc đăng ký Thành viên
Pro tại đây để xem toàn bộ văn bản tiếng Anh.
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
1. State regulatory authorities in charge of PPP
investments at the central level shall supervise the processes for
implementation of PPP projects prescribed at Point a, b and c of Clause 3 of
Article 4 of this Law and other projects assigned by the National Assembly and
the Prime Minister.
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. Bidding documents.
2. Investor selection results.
...
...
...
Hãy đăng nhập hoặc đăng ký Thành viên
Pro tại đây để xem toàn bộ văn bản tiếng Anh.
4. Results of inspection of quality of
infrastructure works and 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
Vietnam Fatherland Front at all levels shall take
charge of conducting the supervision and providing guidance on the supervision
of investments by the communities where PPP projects are implemented in
accordance with the law on Vietnam Fatherland Front and the law on the
community-based supervision of investments.
Chapter IX
DUTIES, POWERS AND RESPONSIBILITIES OF STATE
REGULATORY AUTHORITIES FOR PPP INVESTMENTS
Article 89. Duties and powers of Government and
Prime Minister
1. The Government shall have the following rights
and responsibilities:
...
...
...
Hãy đăng nhập hoặc đăng ký Thành viên
Pro tại đây để xem toàn bộ văn bản tiếng Anh.
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 Prime Minister shall have the following
duties and powers:
a) Issue, within their jurisdiction, legislative
documents regarding PPP investments;
b) Make decisions on termination or suspension of
PPP project contracts with respect to those projects falling under the
authority to issue investment policy decisions of the National Assembly or the
Prime Minister.
Article 90. Duties and powers of 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.
...
...
...
Hãy đăng nhập hoặc đăng ký Thành viên
Pro tại đây để xem toàn bộ văn bản tiếng Anh.
5. Implement other duties and powers as stipulated
by law.
Article 91. Duties and powers of 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, and Heads of central or other
authorities.
3. Implement other duties and powers as stipulated
by law.
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.
...
...
...
Hãy đăng nhập hoặc đăng ký Thành viên
Pro tại đây để xem toàn bộ văn bản tiếng Anh.
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 provinces.
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 project
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.
4. Take charge of, and cooperate
with PPP project enterprises in, undertaking compensation, site clearance,
support and resettlement for PPP projects falling under the latter’s remit;
take charge of, and cooperate with Ministries, central authorities, other
agencies and PPP project enterprises in, performing the tasks of compensation,
support and resettlement for PPP projects falling under the latter’s authority.
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 project 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.
...
...
...
Hãy đăng nhập hoặc đăng ký Thành viên
Pro tại đây để xem toàn bộ văn bản tiếng Anh.
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.
8. Implement other duties stipulated herein.
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:
...
...
...
Hãy đăng nhập hoặc đăng ký Thành viên
Pro tại đây để xem toàn bộ văn bản tiếng Anh.
b) Initiate Court proceedings within the statute of
limitations in accordance with civil law.
2. The bid solicitor or the 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 comply with the
following regulations:
a) The investor sends a written petition to the bid
solicitor from the date of occurrence to the date prior to the announcement of
the results of investor selection;
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 comply with the following
regulations:
...
...
...
Hãy đăng nhập hoặc đăng ký Thành viên
Pro tại đây để xem toàn bộ văn bản tiếng Anh.
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, and
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;
dd) Where necessary, the Petition Settlement
Advisory Board shall, based on the investor's written petition, request the
competent authority to consider temporarily suspending the bid. In case of
acceptance of the petition, within 05 working days of receipt of the written
document from the Petition Settlement Advisory Board, the competent authority
must send a written notification of temporary suspension of the bid. The
written document stating temporary suspension of the bid must be sent to the
bid solicitor or the investor within 05 working days from the date of issuance
of the written notification of temporary suspension of the bid. The duration of
temporary suspension of the bid shall range from the date of the bid
solicitor's receipt of the written notification of temporary suspension to the
date of the competent authority's issuance of the written document stating settlement
of the petition;
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.
...
...
...
Hãy đăng nhập hoặc đăng ký Thành viên
Pro tại đây để xem toàn bộ văn bản tiếng Anh.
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;
c) Overseas Arbitration;
d) International Arbitration;
dd) Arbitration established under agreements
between disputing parties’ agreement.
5. Disputes settled through arbitration prescribed
in PPP project contracts 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
...
...
...
Hãy đăng nhập hoặc đăng ký Thành viên
Pro tại đây để xem toàn bộ văn bản tiếng Anh.
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.
Chapter XI
IMPLEMENTATION PROVISIONS [7]
Article 99. Amendments to relevant laws
1. Certain Articles of the Law on Bidding No.
43/2013/QH13, as amended under the Law No. 03/2016/QH14, Law No. 04/2017/QH14
and Law No. 40/2019/QH14, are amended as follows:
a) Clause 3 Article
1 is amended as follows:
...
...
...
Hãy đăng nhập hoặc đăng ký Thành viên
Pro tại đây để xem toàn bộ văn bản tiếng Anh.
b) Clause 2 Article
3 is amended 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) Clause 10 Article
4 is amended as follows:
“10. PPP project
enterprise refers to an enterprise established by an investor to serve the
purpose of executing PPP projects involving land use.”;
d) Clause 12 Article
4 is amended as follows:
“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 involving land use on the basis
of ensuring competition, fairness, transparency and economic efficiency.”;
dd) Clause 4 Article
6 is amended as follows:
“4. Bidding investors must be legally and
financially independent of the parties hereunder:
a) Tender consulting
contractors in investment projects involving land use until the date of
conclusion of project contracts;
...
...
...
Hãy đăng nhập hoặc đăng ký Thành viên
Pro tại đây để xem toàn bộ văn bản tiếng Anh.
e) Point i Clause 1
Article 8 is amended:
“i) List of
investment projects involving land use;”;
g) Clause 2 Article 15 is amended
as follows:
“2. Investment projects involving
land use, except for cases where investment is restricted in accordance with
the investment law.”;
h) Article 68 is annulled.
2. Clause 4 Article 40 of the Law
on Public Investment No. 39/2019/QH14 is amended 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 comply with the law on PPP
investment.”.
3. Clause 2 Article 20 of the Law on Prices No.
11/2012/QH13, as amended by the Law No. 61/2014/QH13, is amended as follows:
“2. Promptly adjust prices whenever the price
factors change. In particular, prices of public products and services created
by PPP investment projects shall be adjusted over periods of time as provided
in project contracts.”.
...
...
...
Hãy đăng nhập hoặc đăng ký Thành viên
Pro tại đây để xem toàn bộ văn bản tiếng Anh.
a) Clause 2 Article 12 is amended 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) Clause 1 Article 13 is amended 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.”.
5. Clause 2 Article 39 of the Law on
Hydrometeorology No. 90/2015/QH13, as amended by the Law No. 35/2018/QH14, is
amended as follows:
“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. Certain Articles of the Law on Housing No.
65/2014/QH13, as amended by the Law No. 40/2019/QH14, are amended as follows:
a) Clause 3 Article 36 is amended as follows:
...
...
...
Hãy đăng nhập hoặc đăng ký Thành viên
Pro tại đây để xem toàn bộ văn bản tiếng Anh.
b) Clause 1 Article 53 is amended 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) Point b Clause 3 Article 40, point b Clause 1
Article 114 are annulled.
7. 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 are annulled.
Article 100. Effect
1. This Law shall enter into force on January 01,
2021, except the regulations specified in Clause 6 of Article 101 herein.
2. The Government and competent regulatory
authorities shall elaborate Clauses and Articles set forth in this Law.
Article 101. Transition
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 comply
with the following regulations:
...
...
...
Hãy đăng nhập hoặc đăng ký Thành viên
Pro tại đây để xem toàn bộ văn bản tiếng Anh.
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 in which investor prequalification results have not been approved yet
or the bidding documents or requests for proposal have not yet been issued by
the effective date of this Law shall be halted.
3. PPP projects in which investor
selection is occurring shall comply with the following regulations:
a) In case where their investor
prequalification results have been approved before the effective date of this
Law, they may be continued in accordance with this Law;
b) In case where the bidding
documents or the request for proposal has been issued before the effective date
of this Law but the bid closing date falls after December 31, 2020, the bid
solicitor shall be responsible for extending the bid closing date to improve
the bidding documents 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 happen
after the effective date of this Law, the contracting authority shall negotiate
and sign the contract, based on the results of investor selection, bids,
proposals, bidding documents 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:
...
...
...
Hãy đăng nhập hoặc đăng ký Thành viên
Pro tại đây để xem toàn bộ văn bản tiếng Anh.
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, bids, proposals,
bidding documents or requests for proposal, and legislative regulations valid
at the time of issuance of bidding documents or requests for proposal;
c)
In case of projects for which contracts have been signed 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.
7.
The Government shall elaborate this Article./.
CERTIFIED BY
CHAIRMAN
Bui Van Cuong
...
...
...
Hãy đăng nhập hoặc đăng ký Thành viên
Pro tại đây để xem toàn bộ văn bản tiếng Anh.
[1] The Law No. 03/2022/QH15 on amendments
to certain articles of the Law on Public Investment No. 39/2019/QH14; the Law
on Public-Private Partnership Investment No. 64/2020/QH14; the Law on Investment
No. 61/2020/QH14; the Law on Housing No. 65/2014/QH13; the Law on Bidding No.
43/2013/QH13; the Law on Electricity No. 28/2004/QH11; the Law on Enterprises
No. 59/2020/QH14; the Law on Special Excise Duties No. 27/2008/QH12; the Law on
Civil Judgment Enforcement No. 26/2008/QH12 is promulgated pursuant to:
“The Constitution of the Socialist Republic of
Vietnam;”
The Law on Water Resources No. 28/2023/QH15 is
promulgated pursuant to:
“The Constitution of the Socialist Republic of
Vietnam;”
The Law on Roads No. 35/2024/QH15 is promulgated
pursuant to:
“The Constitution of the Socialist Republic of
Vietnam;”
[2] This Point is amended according to
Clause 4 Article 84 of the Law on Water Resources No. 28/2023/QH15, coming into
force from July 01, 2024.
[3] This point is amended by Article 2 of
the Law No. 03/2022/QH15 on amendments to certain articles of the Law on Public
Investment, the Law on Public-Private Partnership Investment, the Law on
Investment, the Law on Housing, the Law on Bidding, the Law on Electricity, the
Law on Enterprises, the Law on Special Excise Duties, and the Law on Civil
Judgment Enforcement, coming into forces from March 01, 2022.
...
...
...
Hãy đăng nhập hoặc đăng ký Thành viên
Pro tại đây để xem toàn bộ văn bản tiếng Anh.
[5] This Point is amended according to
Point b Clause 3 Article 84 of the Law on Roads No. 35/2024/QH15, coming into
force from January 01, 2025.
[6] This Point is amended according to
Point c Clause 3 Article 84 of the Law on Roads No. 35/2024/QH15, coming into
force from January 01, 2025.
[7] Articles 10 and
11 of the Law providing amendments to the Law on Public Investment, the Law on
Public-Private Partnership Investment, the Investment Law, the Housing Law, the
Law on Electricity, the Law on Enterprises, the Law on Excise Duties, and the
Law on Civil Judgment Enforcement, which comes into force from March 01, 2022,
stipulate that:
“Article 10. Effect
This Law comes into force from
March 01, 2022.
Article 11. Transition
1. Regarding group-B or group-C public
investment projects that use ODA funds or concessional loans granted by foreign
sponsors and of which investment policies have been approved by the Prime
Minister before the effective date of this Law, and the cases specified in
Clause 2 of this Article, authorities or persons vested with authority to issue
decisions on investment policies prescribed in Article 1 of this Law shall be
competent to adjust their investment policies.
2. Regarding group-B or group-C public
investment projects using ODA funds or concessional loans from foreign sponsors
of which procedures for formulating and appraising investment policies or
appraisal reports which are used as the basis for deciding or modifying
investment policies as prescribed in Article 25 and Article 34 of the Law on Public
Investment No. 39/2019/QH14, as amended in the Law No. 64/2020/QH14 and the Law
No. 72/2020/QH14, have been completed or made before the effective date of this
law, procedures for obtaining the Prime Minister’s decision on such investment
policies shall be continued in accordance with the provisions of the Law on
Public Investment No. 39/2019/QH14, as amended in the Law No. 64/2020/QH14 and
the Law No. 72/2020/QH14.
3. From the effective date of this Law, if
applications for approval or modification of investment policies of projects on
construction of housing (for sale, lease or lease purchase) or urban areas
which are under the approving authority of the Prime Minister as prescribed in
Article 31 of the Investment Law No. 61/2020/QH14, as amended in the Law No.
72/2020/QH14, but currently under the approving authority of the Provincial
People's Committees as prescribed in Article 3 of this Law have been submitted
and considered valid but not yet processed although the processing time limit
prescribed in the Investment Law No. 61/2020/QH14, as amended in the Law No.
72/2020/QH14, has expired, they shall continue to be processed in accordance
with the provisions of the Investment Law No. 61/2020/QH14, as amended in the
Law No. 72/2020/QH14.
...
...
...
Hãy đăng nhập hoặc đăng ký Thành viên
Pro tại đây để xem toàn bộ văn bản tiếng Anh.
5. From the effective date of
this Law, the provisions of this Law shall apply to the civil judgments which
have not yet been unenforced or have been incompletely enforced; decisions and
actions made or taken by civil judgment enforcement agencies or enforcement
officers according to the Law on civil judgment enforcement No. 26/2008/QH12,
as amended in the Law No. 64/2014/QH13, Law No. 23/2018/QH14 and Law No.
67/2020/QH14, remain valid and may proceed further.”.
Article 85 and Article 86 of the
Law on Water Resources No. 28/2023/QH15, coming into force from July 01, 2024
stipulate as follows:
“Article 85. Effect
1. This Law comes into force from July 01, 2024,
unless otherwise prescribed in Clauses 3 and 4 of this Article.
2. The Law on Natural Resources No. 17/2012/QH13
amended by the Law No. 08/2017/QH14, Law No. 35/2018/QH14 and Law No.
72/2020/QH14 (hereinafter referred to as “the Law No. 17/2012/QH13”) shall
cease to have effect from the effective date of this Law, except for the case
specified in clauses 1, 3 and 5 Article 86 of this Law.
3. The fee for right to exploit water resources
to be supplied for domestic activities as prescribed in point b clause 1
Article 69 of this Law shall be charged from July 01, 2025.
4. The exploitation of groundwater by households
as prescribed in clause 4 Article 52 of this Law shall be registered from July
01, 2026.
Article 86. Transition
1. The license to practice groundwater drilling
or a water resource license which has been issued as per the Law No.
17/2012/QH13 shall still remain valid and may be extended, otherwise modified
or re-issued as prescribed by this Law.
...
...
...
Hãy đăng nhập hoặc đăng ký Thành viên
Pro tại đây để xem toàn bộ văn bản tiếng Anh.
3. Any organization or individual in the case
mentioned in point b clause 1 Article 69 of this Law that is granted a water
resource license for supply to agriculture prior to the effective date of this
Law but is not required to pay the fee for water resource exploitation right as
per the Law No. 17/2012/QH13 is not required to pay the fee for water resource
exploitation right for the amount of water supplied to agriculture until the
expiry date written on the water resource license.
4. Any organization or individual in the case
mentioned in point b clause 1 Article 69 of this Law that has their permit for
exploiting surface water for supply to agriculture issued or extended as
prescribed by this Law shall pay the fee for water resource exploitation right
as per this Law at the same time the fee for using irrigation products or
services is collected if the State does not provide financial support for use
of public irrigation products or utilities under regulations of law on
irrigation and law on prices.
5. Any application for issuance, extension,
adjustment or re-issuance of the license to practice groundwater drilling or
the water resource license that is submitted before the effective date of this
Law but has yet to be processed may be processed as per the Law No.
17/2012/QH13, except for the case of applying for issuance of the license as
per this Law.
6. For any hydraulic structure which was built
and operated before January 01, 2013 but has yet to have its exploitation and
use of water resources registered and licensed before the effective date of
this Law, it is required to complete the procedures for registering and
licensing exploitation of water resources as prescribed by this Law by June 30,
2027 at the latest.
7. For the provincial planning approved before
the effective date of this Law, the plan to exploit, use, protect water
resources and recover damage caused by water under the provincial planning may
be implemented until the expiry of the provincial planning period or until the
plan under the provincial planning is modified.
8. Any organization or
individual in the cases specified in points e and g clause 5 Article 52 of this
Law that possesses a lake, pond, canal or ditch to create space for collection,
storage or conveyance of water or create landscapes and uses river, stream,
canal, ditch or reservoir water surface for aquaculture, business and service
provision before the effective date of this Law shall complete procedures for
registering their use of water as per this Law by June 30, 2026 at the latest.”
Articles 85 and 86 of the Law on Roads No.
35/2024/QH15, coming in force from January 01, 2025, stipulate as follows:
“Article 85. Effect
1. This Law comes into force from January 01,
2025, except the cases prescribed in Clause 2 of this Article.
...
...
...
Hãy đăng nhập hoặc đăng ký Thành viên
Pro tại đây để xem toàn bộ văn bản tiếng Anh.
3. The Law on Roads No. 23/2008/QH12, as amended
by the Law No. 35/2018/QH14 and the Law No. 44/2019/QH14, shall cease to have
effect from the effective date of this Law, except the cases prescribed in
Article 86 of this Law.
Article 86. Transition
1. Investment in expressway projects that have
been granted investment policy decisions before the effective date of this Law
but have not yet satisfied all of the requirements laid down in this Law shall
continue to be made according to such investment policy decisions granted by
competent authorities.
2. Regarding expressways which have been put
into operation before the effective date of this Law but have not yet satisfied
the requirements laid down in clause 1 Article 45, clause 2 Article 47 of this
Law, and expressways defined in clause 1 of this Article, the roadmaps for
investment in and construction of such expressways conformable with this Law
shall comply with the Government's regulations.".