Circular 09/2021/TT-BKHDT selection of investors for executing public private partnership projects

• Official number: 09/2021/TT-BKHDT
• Legislation Type: Circular
• Organization: The Ministry of Planning and Investment
• Signer: Nguyen Chi Dung
• Issued Date: 16/11/2021

MINISTRY OF PLANNING AND INVESTMENT -----------	SOCIALIST REPUBLIC OF VIETNAM Independence - Freedom – Happiness -----------
No.: 09/2021/TT-BKHDT	Hanoi, November 16, 2021

CIRCULAR

PROVIDING GUIDELINES FOR SELECTION OF INVESTORS FOR EXECUTING PUBLIC-PRIVATE PARTNERSHIP PROJECTS AND INVESTMENT PROJECTS INVOLVING LAND USE

Pursuant to the Law on Bidding dated November 26, 2013;

Pursuant to the Law on Investment dated June 17, 2020;

Pursuant to the Law on Public-Private Partnership Investment dated June 18, 2020;

Pursuant to the Government’s Decree No. 31/2021/ND-CP dated March 26, 2021 providing guidelines for implementation of the Law on investment;

Pursuant to the Government’s Decree No. 35/2021/ND-CP dated March 29, 2021 providing guidelines for implementation of the Law on public-private partnership investment;

Pursuant to the Government’s Decree No. 28/2021/ND-CP dated March 26, 2021 prescribing financial management mechanism of public-private partnership projects;

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Pursuant to the Government’s Decree No. 86/2017/ND-CP dated July 25, 2017 defining the functions, tasks, powers and organizational structure of the Ministry of Planning and Investment;

At the request of the Director General of the Public Procurement Agency;

The Minister of Planning and Investment promulgates a Circular providing guidelines for selection of investors executing public-private partnership (PPP) projects and investment projects involving land use.

Article 1. Scope

This Circular elaborates and provides guidelines for the Government’s Decree No. 35/2021/ND-CP dated March 29, 2021 providing guidelines for implementation of the Law on public-private partnership investment (hereinafter referred to as “Decree No. 35/2021/ND-CP”) and the Government’s Decree No. 25/2020/ND-CP dated February 28, 2020 elaborating on some Articles of the Law on Bidding regarding investor selection as amended in Article 89 of the Decree No. 35/2021/ND-CP and Article 108 of the Government’s Decree No. 31/2021/ND-CP dated March 26, 2021 providing guidelines for implementation of the Law on investment (hereinafter referred to as “Decree No. 25/2020/ND-CP”), including:

1. Regulations on preparation of prequalification documents, negotiation documents and bidding documents for PPP projects.

2. Regulations on formulation of preliminary capacity and experience requirements, bidding documents, and request for proposals for investment projects involving land use.

3. Other contents concerning the execution of investment projects involving land use.

Article 2. Regulated entities

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Article 3. Preparation of prequalification documents, negotiation documents and bidding documents for PPP projects

1. Prequalification documents shall be made using the form in Appendix I enclosed herewith.

2. Negotiation documents shall be made using the form in Appendix II enclosed herewith.

3. Bidding documents for projects employing prequalification procedures shall be made using the form in Appendix III enclosed herewith.

4. Bidding documents for projects executed without employing prequalification procedures and those employing competitive negotiation as prescribed in Clause 1 Article 38 of the Law on Public-Private Partnership Investment (hereinafter referred to as “PPP Law”) shall be made using the form in Appendix IV enclosed herewith.

5. Bidding documents for projects executed employing competitive negotiation as prescribed in Clauses 2 and 3 Article 38 of the PPP Law shall be made using the form in Appendix V enclosed herewith.

6. With regard to projects executed employing direct contracting approach as prescribed in Point a Clause 1 Article 39 of the PPP Law, bidding documents shall be made using the form in Appendix IV enclosed herewith which shall be modified but must have contents conformable with regulations of the PPP Law, the Decree No. 35/2021/ND-CP and relevant law provisions. Bidding documents shall not include contents concerning comparison and ranking of investors.

Article 4. Formulation of preliminary capacity and experience requirements, bidding documents, and request for proposals for investment projects involving land use

1. Invitation for Expression of Interest (EOI) and preliminary capacity and experience requirements shall be made using the form in Appendix VI enclosed herewith. Preliminary capacity and experience requirements shall only include the contents serving the purpose of selecting prequalified investors; do not include any conditions that limit the participation of investors or give advantage for one or some investors resulting in unfair competition.

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3. With regard to projects executed employing direct contracting approach as prescribed in Clause 3 Article 10 of the Decree No. 25/2020/ND-CP, the request for proposals shall be made using the form in Appendix VII enclosed herewith which shall be modified but must have contents conformable with the Law on bidding, the Decree No. 25/2020/ND-CP, Article 108 of the Government’s Decree No. 31/2021/ND-CP dated March 26, 2021 providing guidelines for implementation of the Law on investment (hereinafter referred to as “Decree No. 31/2021/ND-CP”), Article 89 of the Decree No. 35/2021/ND-CP and relevant law provisions. The request for proposals shall not include contents concerning comparison and ranking of investors.

Article 5. Rules for use and modification of document forms

1. In the forms provided in Appendixes I, II, III, IV, V, VI and VII enclosed herewith, italicized text provides instructions and illustrative provisions and shall be specified in detail according to scale, nature, field and specific conditions (if any) of each project.

2. In addition to criteria for evaluation of capacity and experience of investors laid down in Appendixes I, II, IV and VII enclosed herewith, other criteria may be adopted but must:

a) be conformable with the scale, nature, field and specific conditions (if any) of each project;

b) not be contrary to law provisions; not limit the participation of investors or give advantage for one or some investors resulting in unfair competition.

3. In case additional criteria for evaluation are adopted as prescribed in Clause 2 of this Article, the request for approval of prequalification documents, negotiation documents, bidding documents or request for proposals must provide detailed explanations and reasons for adopting such additional criteria for competent authorities for consideration.

Article 6. Execution of investment projects involving land use

1. Investment projects involving land use prescribed in Clause 1 Article 11 of the Decree No. 25/2020/ND-CP shall be determined according to the following provisions:

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b) Commercial housing shall be determined according to Clause 4 Article 3 of the Housing Law No. 65/2014/QH13 dated November 25, 2014;

c) Headquarters and office building projects include buildings providing working offices and accommodations as defined in Point h Clause 2 Section I of Appendix I enclosed with the Government’s Decree No. 06/2021/ND-CP dated January 26, 2021 prescribing quality management, execution and maintenance of construction works (hereinafter referred to as “Decree No. 06/2021/ND-CP”);

d) Commercial facilities include shopping malls, supermarkets, shops, restaurants, food and beverage stores as defined in Point e Clause 2 Section I of Appendix I enclosed with the Decree No. 06/2021/ND-CP;

dd) Service facilities include hotels, guest houses, motels, resorts, residential villas, apartments and other accommodation facilities as defined in Point g Clause 2 Section I of Appendix I enclosed with the Decree No. 06/2021/ND-CP.

2. Preliminary capacity and experience requirements and announcement of list of investment projects involving land use with regard to projects of which investment guidelines have to be approved as prescribed in Point a Clause 1 Article 12 of the Decree No. 25/2020/ND-CP shall be determined and performed as follows:

a) With regard to projects of which investment guidelines are subject to the Prime Minister’s approval:

Provincial People's Committees shall take charge of organizing bidding in accordance with Clause 8 Article 32 of the Decree No. 31/2021/ND-CP. Based on the decision to give approval for investment guidelines of the project, the Provincial People's Committee shall assign the Provincial Department of Planning and Investment to play the leading role and cooperate with relevant authorities to set out preliminary capacity and experience requirements, and submit them to the Provincial People's Committee for approval before the list of projects is announced. With regard to a project located in an economic zone, the Provincial People's Committee shall assign the management board of that economic zone to set out and approve preliminary capacity and experience requirements before the list of projects is announced.

b) With regard to projects of which investment guidelines are subject to approval of Provincial People's Committees:

Provincial Departments of Planning and Investment or economic zone management boards (for projects located in economic zones) shall take charge of organizing bidding in accordance with Clause 6 Article 33 of the Decree No. 31/2021/ND-CP. Based on the decision to give approval for investment guidelines of the project, the Provincial Department of Planning and Investment shall play the leading role and cooperate with relevant authorities to set out preliminary capacity and experience requirements, and submit them to the Provincial People's Committee for approval before the list of projects is announced. With regard to a project located in an economic zone, the management board of that economic zone shall set out and approve preliminary capacity and experience requirements before the list of projects is announced.

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In case there is one investor meeting preliminary capacity and experience requirements, that investor shall submit application for investor approval in accordance with Clause 3 Article 29 of the Law on investment and Point a Clause 2 Article 30 of the Decree No. 31/2021/ND-CP without determining the minimum payment to state budget as prescribed in Clause 2 Article 4 of this Circular.

4. The project enterprise established by the successful investor to execute the project as prescribed in Clause 5 Article 57 of the Decree No. 25/2020/ND-CP shall inherit rights and obligations to execute the investment project as committed by the successful investor in the bid, and be required to meet relevant requirements set out in laws on enterprise, investment, construction, land, residential housing and real estate business, and relevant laws (if any).

Article 7. Transition 

1. With regard to investment projects involving land use:

a) In case bidding documents and requests for proposals have been issued according to the Government’s Decree No. 30/2015/ND-CP dated March 17, 2015 on elaboration of the Law on bidding regarding investor selection (hereinafter referred to as “Decree No. 30/2015/ND-CP”) and the Circular No. 16/2016/TT-BKHDT dated December 16, 2016 of the Minister of Planning and Investment providing guidelines for prequalification documents and request for proposals for selection of investors executing investment projects involving land use (hereinafter referred to as “Circular No. 16/2016/TT-BKHDT”) but investor selection results have yet to be achieved by the effective date of this Circular, such issued bidding documents and requests for proposals shall continue being used as the basis for evaluation of received bids and proposals.

b) In case prequalification documents have been issued before the effective date of the Decree No. 25/2020/ND-CP, the investor selection shall be carried out in accordance with Clause 3 Article 90 of the Decree No. 25/2020/ND-CP. Bidding documents and requests for proposals shall be prepared in accordance with the Decree No. 30/2015/ND-CP, the Circular providing guidelines for implementation of the Decree No. 30/2015/ND-CP and laws on land, residential housing, real estate business, investment and construction in force at the time of approval of such bidding documents and requests for proposals.

c) In case the list of projects has been published on the national bidding system in accordance with the Decree No. 25/2020/ND-CP and the Circular No. 06/2020/TT-BKHDT and there are two or more investors meeting preliminary capacity and experience requirements but bidding documents have yet to be issued, they must be prepared in accordance with the Decree No. 25/2020/ND-CP dated February 28, 2020 (which comes into force from April 20, 2020 to March 26, 2021), the Circular No. 06/2020/TT-BKHDT and regulations of laws on land, residential housing, real estate business, investment and construction in force at the time of approval of such bidding documents.

d) In case bidding documents and requests for proposals have been issued in accordance with the Decree No. 25/2020/ND-CP and the Circular No. 06/2020/TT-BKHDT but investor selection results have yet to be achieved by the effective date of this Circular, such issued bidding documents and requests for proposals shall continue being used as the basis for evaluation of received bids and proposals.

dd) Project contracts which have been concluded in accordance with law provisions in force before the effective date of this Circular shall remain valid. In case the modification of a project has been approved, the project shall be modified in accordance with regulations of the Law on investment before the project contract is modified.

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Article 8. Implementation 

1. Form A.I.5a and Form A.II.5a enclosed with the Circular No. 03/2021/TT-BKHDT dated April 03, 2021 of the Minister of Planning and Investment prescribing templates of documents and reports related to investment activities in Vietnam, outward investment and investment promotion are provided for in Appendix IX of this Circular.

2. Before specific provisions on projects having to undergo bidding according to specialized laws and law on private sector involvement which are promulgated by Ministries, ministerial agencies or Governmental agencies within their jurisdiction or by the Prime Minister at the request of such agencies as prescribed in Clause 3 Article 16 of the Decree No. 25/2020/ND-CP come into force, bidding documents shall be prepared using the forms in Appendixes VI and VII enclosed herewith which shall be modified but must have contents conformable with the Law on bidding, specialized law and law on private sector involvement so as to ensure competitiveness, fairness, transparency and economic efficiency objectives.

3. List of investment projects involving land use and list of projects having to undergo bidding as prescribed by specialized laws and law on private sector involvement shall be published on the national bidding system within 07 working days from the day on which the list is approved (regarding projects of which approval for investment guidelines is not compulsory in accordance with the Law on investment) or from the day on which preliminary capacity and experience requirements are approved (regarding projects of which investment guidelines must be approved in accordance with the Law on investment).

4. Publishing of information on bidding and investor selection on the national bidding system shall comply with relevant provisions of Articles 7, 8, 9, 10 and 13 of the Circular No. 06/2020/TT-BKHDT until new guidelines are given by the Ministry of Planning and Investment.

5. This Circular comes into force from January 01, 2022 and supersedes the Circular No. 06/2020/TT-BKHDT dated September 18, 2020 of the Minister of Planning and Investment providing guidelines for implementation of the Decree No. 25/2020/ND-CP, except the provisions of Clause 4 of this Article.

6. Ministries, ministerial agencies, Governmental agencies, other central government agencies, Provincial People’s Committees, and relevant organizations and individuals are responsible for the implementation of this Circular. Difficulties that arise during the implementation of this Circular should be reported to the Ministry of Planning and Investment for consideration./.

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