Nghị định 69/2019/NĐ-CP sử dụng tài sản công thanh toán cho Nhà đầu tư khi thực hiện Dự án

• Số hiệu: 69/2019/ND-CP
• Loại văn bản: Nghị định
• Nơi ban hành: Chính phủ
• Người ký: Nguyễn Xuân Phúc
• Ngày ban hành: 15/08/2019

THE GOVERNMENT -------	THE SOCIALIST REPUBLIC OF VIET NAM Independence-Freedom-Happiness ---------------
No.: 69/2019/ND-CP	Hanoi, August 15, 2019

DECREE

PRESCRIBING USE OF PUBLIC PROPERTY FOR MAKING PAYMENT TO INVESTORS IMPLEMENTING CONSTRUCTION INVESTMENT PROJECTS IN THE FORM OF BUILD-TRANSFER CONTRACT

Pursuant to the Law on Organization of Government dated June 19, 2015;

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

Pursuant to the Law on land dated November 29, 2013;

Pursuant to the Law on construction dated June 18, 2014;

Pursuant to the Law on public investment dated June 18, 2014;

The Law on investment dated November 26, 2014;

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Pursuant to the Law on management and use of public assets dated June 21, 2017;

At the request of the Minister of Finance;

The Government promulgates a Decree prescribing use of public property for making payment to investors implementing construction investment projects in the form of Build-Transfer Contract.

Chapter I

GENERAL PROVISIONS

Article 1. Scope

1. This Decree deals with the use of public property for making payment to investors implementing construction investment projects in the form of Build-Transfer Contract (hereinafter referred to as “BT projects”) in accordance with law regulations.

2. Public property used for making payment to investors implementing BT projects includes:

a) Land areas.

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c) Infrastructure assets serving national and public interests (hereinafter referred to as “infrastructure assets”).

d) Other public property as defined in the Law on Management and Use of Public Property.

3. If the auction of public property is conducted to raise funding for making payment for BT contracts, the proceeds from such auction shall be used for making payment to investors implementing BT projects in accordance with regulations of the Law on Public Investment, the Law on State Budget and relevant guiding documents.

Article 2. Regulated entities

1. Authorities competent to sign Build – Transfer contracts (hereinafter referred to as “BT contracts”).

2. Agencies, organizations and units authorized by competent authorities to sign BT contracts or assigned to take charge of investment preparation, negotiation, conclusion and execution of BT contracts (hereinafter referred to as “authorized agencies”).

3. Investors executing BT contracts (hereinafter referred to as “investors”).

4. Other agencies, organizations and individuals involved in the implementation of BT projects.

Article 3. Principles for making payment for BT projects with public property

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a) Regulations of the Laws on management and use of public property, land, state budget, investment and construction must be strictly complied.

b) Investors must be selected in the form of competitive bidding as prescribed in the Law on bidding. 

c) Approval from competent authorities is required when using public property for making payment to investors.

2. The use of public property for making payment to investors shall adhere to the principle of parity, i.e. the value of BT project is equivalent to the value of public property used for making payment; such values are determined as follows:

a) The value of public property shall be determined by adopting the mark-to-market method in accordance with regulations in force at the time of payment prescribed in Clause 4 of this Article.

b) The value of BT project shall be determined according to bidding results.

3. The use of public property for making payment to investors must be aggregated and recorded as state budget expenditures in accordance with regulations of the Law on State Budget. To be specific:

a) Payments by public property managed by central agencies shall be aggregated and recorded as central-government budget expenditures.

b) Payments by public property managed by local agencies shall be aggregated and recorded as local-government budget expenditures. 

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5. The loan interest amount included in a BT project’s financial plan for the value of the completed BT project under the progress shall no longer exist after the competent authority issues a decision to allocate or lease land to the investor.

6. The public property shall be allocated or transferred for making payment to investors after completion of the BT project or according to the value of the completed construction volume of the BT project under the progress determined by the competent authority in accordance with the laws on investment and construction.

Article 4. Determination of value of BT projects

1. The value of a BT project specified in the BT contract as the basis for making payment shall be determined according to bidding results and kept unchanged from the date of signing of the BT contract, except the case prescribed in Clause 2 of this Article.

2. In case where a competent authority gives permission for adjustment of the BT project’s scale, technical design, compensation and ground clearance costs or loan interest amount included in the BT project’s financial plan, resulting in a change in the BT project’s value:

a) The adjusted value of the BT project shall be determined in accordance with regulations of the law on construction, the law on investment and relevant laws in force at the time the competent authority gives permission for such adjustment.

b) The adjusted value of the BT project specified in the Appendix to the BT contract shall be aggregated in the BT project’s value which is used as the basis for making payment and finalization of the BT contract in accordance with regulations of law.

3. The value of the BT project used as the basis for making payment is the one to be settled in accordance with regulations of law (hereinafter referred to as the “final value of BT contract”).

Chapter II

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Section 1. USE OF LAND FOR MAKING PAYMENT TO INVESTORS

Article 5. Land areas used for making payment to investors

1. Investors may be allocated land with collection of land use levy or leased land with one-off rental payment for the entire lease period in accordance with regulations of the law on land.

2. Land areas used for making payment to investors are either uncleared or cleared but must meet the following requirements:

a) Land areas are determined in land use master plans or plans approved by competent authorities.

b) The appropriation of land areas to be used for making payment to investors must comply with regulations of the Law on land.

c) If cleared land areas are used for making payment to investors, provincial People’s Committees must obtain decisions thereon issued by the Prime Minister before deciding the project’s investment guidelines.

3. Competent authorities shall select land areas used to make payment to investors as prescribed in Clause 2 of this Article, provided the value of a land area used to make payment is equivalent to the approved value of the BT project. To be specific:

a) If the actual value of the land area is not yet determined when concluding a BT contract, the value of the land area to be used for making payment determined at the time of signing of the BT contract shall equal (=) the land area to be allocated multiplied (x) by the land price apposite to the converted use in the Land price list promulgated by the relevant provincial People’s Committee and multiplied (x) by the land pricing coefficient for calculating land levy and land rent promulgated by the relevant provincial People’s Committee.

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Article 6. Valuation of land areas used for making payment

1. The value of the land area is the land use levy or the land rental fully paid for the entire lease period.  Valuation of land areas shall be made in accordance with regulations on collection of land use levy, land rental and water surface rental. The land use levy or land rental shall not be exempted or reduced when determining the value of land areas used for making payment.

2. Valuation of land areas must follow procedures for determining land prices laid down in the Law on land, in which:

a) The value of the land area is determined at the time of obtaining the decision on land allocation or land lease from a competent authority according to regulations of the Law on land.

b) The relevant provincial Department of Natural Resources and Environment shall organize the valuation of the land area and report results thereof to the land price appraisal council.

c) Based on appraisal results given by the land price appraisal council, the relevant provincial People's Committee shall approve the value of the land area.

3. The value of a land area is equivalent to the value of the BT project and shall not be changed after it has been determined by a competent authority, except the case prescribed in Clause 4 of this Article.

4. In cases where a competent authority permits the adjustment of the land use planning or construction planning in accordance with regulations of law, resulting in a change in the value of the land area:

a) The adjusted value of the land area shall be determined at the time of obtaining permission for adjustment of the land use planning or construction planning from the competent authority.  The adjusted value shall be recorded in the Appendix of the BT contract signed between the competent authority and the investor, and aggregated in the value of the land area used for making payment to the investor.

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5. The actual value of a land area is the value of the land area after it has been adjusted according to Appendixes of the BT contract as prescribed in Clause 4 of this Article (if any) and which must ensure the principles in Clause 2 Article 3 hereof.

Article 7. Use of cleared land areas for making payment for BT projects

1. Valuation of land areas shall be made according to the provisions in Article 6 hereof. To be specific:

a) In case of allocation of land with land use levy, the value of the land area is the land use levy determined according to regulations on collection of land use levy.

b) In case of lease of land, the value of the land area is the land rental fully paid for the entire lease period determined according to regulations on collection of land rental and water surface rental.

2. The payment for BT projects by land areas shall be made according to the principle of parity; the value of the land area shall be equivalent to the value of completed construction volume of the BT project under the progress determined by the competent authority in accordance with regulations of law. To be specific:

a) Based on completed construction volume of the BT project under the progress, the competent authority shall determine the equivalent value of the land area for making payment. State budget revenues and expenditures shall be recorded according to the provisions in Article 16 hereof.

b) In case the value of a land area used for payment is higher than the value of a BT project, the investor shall remit the difference in cash into the state budget. In case the value of a land area used for payment is lower than the value of a BT project, the State shall pay the difference to the investor in cash or with another land area at the time of finalization of the BT project.

3. The competent authority shall grant a certificate of land use rights, ownership of house and other property on land (hereinafter referred to as “Certificate”) to the investor in accordance with the Law on land for the land area used to make payment equivalent to the value of the completed BT project under the progress determined by the competent authority in accordance with the laws on investment and construction.

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5. Upon completion of the BT project and approval for finalization of the BT project as prescribed, based on the value of the BT construction volume under the BT contract and its appendixes (if any), the Parties of the BT contract shall determine the value of land areas used for payment as follows:

a) In case total value of land areas used for payment is higher than total value of the BT project, the investor shall remit the difference in cash into the state budget or have the equivalent land area reduced. The relevant provincial People's Committee shall consider making decision on this case in accordance with regulations of law and assume responsibility for its decision.

b) In case total value of land areas used for payment is lower than total value of the BT project, the State shall pay the difference to the investor in cash or with another land area; payment of the difference to the investor with a land area must be made on the principle of parity whereby the value of the land area additionally allocated must be equivalent to the difference between total adjusted value of the land area used for payment and total adjusted value of the BT project.

c) Upon completion of the payment as prescribed in Point a or Point b of this Clause, the Parties of the BT contract shall enter into a record certifying such payment to serve the liquidation of the BT contract as regulated in law.

Article 8. Use of uncleared land areas for making payment for BT projects

1. Based on the approved plan of 1:500 or 1:2000 scale and at the request of regulatory authorities competent to conclude BT contracts and of investors, provincial People's Committees shall make written commitments with investors on use of land to make payment for BT projects; and concurrently request local functional agencies and investors to:

a) Formulate compensation and ground clearance plans and submit them to competent authorities for approval.

b) Investors shall pay in advance funds for compensation and ground clearance according to compensation and ground clearance plans approved by competent authorities; the advanced funds shall be included in the value of the BT contract; loan interest amounts for the advanced funds shall not be included in the value of the BT project.

c) Carry out the compensation and ground clearance according to approved plans.

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3. Valuation of land areas used for payment and payment for BT projects shall be made according to the provisions in Article 6 and Article 7 hereof.  

Section 2. USE OF WORKING OFFICES FOR MAKING PAYMENT TO INVESTORS

Article 9. Valuation of working offices used for payment for BT projects

1. Value of the working office used for making payment for a BT project is the sum of the value of the land use rights and the value of the property on land determined at the time the relevant provincial People's Committee issues a decision on land allocation or land lease in accordance with regulations of the Law on land; the land use levy or land rental shall not be exempted or reduced when determining the value of the working office used for payment.   Where:

a) For the value of land use rights: In case of allocation of land with collection of land use levy, the value of the land area used for payment is the land use levy determined according to regulations on collection of land use levy. In case of lease of land, the value of the land area used for payment is the land rental fully paid for the entire lease period determined according to regulations on collection of land rental and water surface rental.

b) The value of property on land is determined by adopting the mark-to-market method.

2. The value of the working office used for making payment for a BT project shall be determined at the time of obtaining the decision on land allocation or land lease from the relevant provincial People's Committee in accordance with regulations of the Law on land and shall not be changed after it has been determined by a competent authority at the time of signing of the BT contract, except the cases prescribed in Clause 3 of this Article.

3. In cases where a competent authority permits the adjustment of the land use planning or construction planning in accordance with regulations of law, resulting in a change in the value of the working office used for payment:

a) The adjusted value of the working office shall be determined at the time of obtaining permission for adjustment of the land use planning or construction planning from the competent authority.  The adjusted value shall be recorded in an Appendix of the BT contract signed between the Parties of the BT contract.

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4. The actual value of a working office used for payment is the value of the working office after it has been adjusted according to Appendixes of the BT contract as prescribed in Clause 3 of this Article (if any).

Article 10. Procedures for making payment for BT projects with working offices

1. The use of working offices for making payment for BT projects shall be made according to regulations of the Law on management and use of Public Property and after obtaining a written approval from the Prime Minister.

The written approval given by the Prime Minister must indicate the following information: The working office used for payment; the agency, organization or unit assigned to conclude and execute the BT contract; the agency, organization or unit assigned to complete investment procedures and conclude contract for implementing the project in accordance with regulations of law.

2. Procedures:

a) For working offices managed by central agencies:

- Agencies in charge of managing public property of Ministries or central-government authorities shall prepare applications for use of working offices for making payment for BT projects according to Point c of this Clause, submit them to the relevant Ministries or central-government authorities for considering and getting opinions thereof from the Ministry of Finance, and also send them to the People’s Committee of province (where the working office is located) for its opinions about the land use planning or construction planning.

- Based on opinions given by the Ministry of Finance and the relevant provincial People's Committees, Ministries or central government authorities shall consolidate and submit reports thereof to the Prime Minister for giving approval for use of working offices for making payment for BT projects.

b) For working offices managed by local agencies:

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c) An application for use of working office for making payment for a BT project (for a working office managed by either central or local agency) includes:

- A report on the need and necessity to implement a BT project and use of working office for payment; temporarily calculated value of the BT project and value of the working office, including the values of land use rights and property on land. The value of land use rights shall be calculated according to the provisions in Point a Clause 3 Article 5 hereof and the value of property on land shall be temporarily calculated according to its residual value specified in accounting records.

- Opinions given by the agency, organization or unit managing and using the working office, and by its supervisory authority (if any).

- Other relevant documents.

d) Based on the approval given by the Prime Minister, relevant agencies shall select qualified investors by adopting the competitive bidding method in accordance with regulations of the Law on bidding, sign BT contracts and perform other tasks in accordance with the laws on investment and construction, and relevant laws. Based on these grounds, Ministries or central government authorities (for working offices managed by central agencies) or provincial Departments of Finance (for working offices managed by local agencies) shall request the relevant provincial People's Committees to issue decisions on land allocation or land lease according to the provisions in Clause 6 Article 3 hereof.

dd) Agencies in charge of managing public property prescribed in Point a and Point b of this Clause shall organize the valuation of property on land and land use rights and submit valuation reports to provincial Departments of Finance for reporting to the land price appraisal council and requesting provincial People’s Committees to approve values of working offices used for making payment to investors.

3. Payment for BT projects, issuance of Certificates and payment upon adjustment shall comply with the provisions in Article 7 hereof.

Section 3. USE OF INFRASTRUCTURE ASSETS FOR MAKING PAYMENT TO INVESTORS

Article 11. Valuation of infrastructure assets used for making payment for BT projects

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2. The value of the infrastructure asset shall be determined at the time when a competent authority issues a decision to transfer the infrastructure asset to the investor and shall not be changed after it is determined by the competent authority, unless it is adjusted with permission from a competent authority in accordance with regulations of law.

Article 12. Procedures for using infrastructure assets for making payment for BT projects

1. The use of infrastructure assets for making payment for BT projects shall be made according to regulations of the Law on management and use of public property, the law on management and use of infrastructure assets and relevant laws, and after obtaining a written approval from the Prime Minister.

The written approval given by the Prime Minister must indicate the following information: The infrastructure asset used for payment; the agency, organization or unit assigned to conclude and execute the BT contract; the agency, organization or unit assigned to complete investment procedures and conclude contract for implementing the project in accordance with regulations of law.

2. Procedures:

a) For infrastructure assets managed by central agencies:

- The agency, organization, unit or enterprise assigned to manage the infrastructure asset shall prepare an application for use of infrastructure asset for making payment for a BT project according to Point c of this Clause, and submit it to the relevant Ministry or central agency for considering and obtaining opinions thereof from the Ministry of Finance and the People's Committee of province (where the infrastructure asset is located) for its opinions about the land use planning and construction planning.

- Based on opinions given by the Ministry of Finance and the provincial People's Committee, the relevant Ministry or central government authority shall consolidate and submit a report thereof to the Prime Minister for consider giving approval for use of the infrastructure asset for making payment for a BT project.

b) For infrastructure assets managed by local agencies:

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- Based on opinions given by the provincial Department of Finance, the supervisory authority of the agency, organization, unit or enterprise assigned to manage the infrastructure asset shall consolidate and submit a report thereof to the provincial People's Committee that shall request the Prime Minister for giving approval for use of infrastructure asset for making payment for the BT project.

c) An application for use of infrastructure asset for making payment for a BT project (for an infrastructure asset managed by either central or local agency) includes:

- A report on the need and necessity to implement a BT project to build facilities at a new location and use of the infrastructure asset for payment; the temporarily calculated value of the BT project and the value of the infrastructure asset used for payment determined according to Clause 1 Article 12 hereof.

- Other documents relating to the BT project and the infrastructure asset used for payment.

d) Based on the approval given by the Prime Minister, relevant agencies shall select qualified investors by adopting the competitive bidding method in accordance with regulations of the Law on bidding, sign BT contracts and perform other tasks in accordance with the laws on investment and construction, and relevant laws. Based on these grounds, the relevant Ministry or central government authority (if the infrastructure asset is managed by a central agency) or the provincial People's Committee (if the infrastructure asset is managed by a local agency) shall issue a decision to transfer the infrastructure asset at the time prescribed in Clause 6 Article 3 hereof.

dd) The agency, organization, unit or enterprise assigned to manage the infrastructure asset shall organize the valuation of the infrastructure asset and send the valuation report to:

- The Ministry of central government authority for approval (if the infrastructure asset is managed by a central agency);

- The provincial Department of Finance that shall play the leading role and cooperate with the supervisory authority of the agency, organization, unit or enterprise assigned to manage the infrastructure asset and relevant agencies in appraising the value of the infrastructure asset and requesting the provincial People's Committee to give approval (if the infrastructure asset is managed by a local agency).

3. The payment shall be made in accordance with Article 7 hereof.

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Article 13. Valuation of other public property used for making payment for BT projects

The valuation of other public property used for making payment for a BT project shall be made in accordance with regulations of the Law on management and use of public property, specialized law and relevant laws, and must comply with the principles in Article 3 hereof.

Article 14. Use of other public property for making payment for BT projects

1. The use of other pubic property for making payment for BT projects shall be made according to regulations of the Law on management and use of public property, specialized law and relevant laws, and after obtaining a written approval from the Prime Minister at the request of the Ministry or local agency in charge of managing such pubic property.

2. Required documents and procedures for using other pubic property making payment for investors shall comply with Article 12 hereof.

Section 5. ESTIMATION, ACCOUNTING AND TERMINAL STATEMENT OF STATE BUDGET REGARDING PUBLIC PROPERTY USED FOR MAKING PAYMENT FOR BT PROJECTS

Article 15. State budget estimates

1. The value of public property used for making payment to investors shall be included in the annual state budget estimate which shall be submitted to the competent authority for deciding and allocating state budget estimates in accordance with regulations of the Law on state budget.

2. The value of public property used for making payment to investors shall be included in the estimate of state budget revenues regarding public property.  The values of BT projects shall be included in the state budget estimate of investment and development expenditures according to the list of state budget entries.

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Article 16. Accounting for state budget revenues and expenditures regarding values of public property used for payment

1. Values of public property used for making payment to investors shall be recorded as state budget revenues and expenditures.

2. In case of an approved terminal statement of a BT project:

a) If the actual value of the public property used for payment is higher than the final value of the BT contract, state budget revenues and expenditures shall be recorded according to the final value of the BT contract. When the investor pays the difference between the value of the public property and the final value of the BT contract to the state budget, the payment shall be recorded as state budget revenue regarding public property in accordance with regulations of the Law on state budget.

b) If the actual value of the public property used for payment is smaller than the final value of the BT contract, the value of the public property used for payment shall be recorded as a state budget revenue regarding public property and the final value of the BT contract shall be recorded as a state budget expenditure in accordance with regulations of the Law on state budget.

3. In case the terminal statement of a BT project is not yet approved:

The value of the public property used for payment shall be recorded as state budget revenue regarding public property, and the value of the public property which has been used for making payment for a BT project shall be recorded as a state budget advances. When the terminal statement of a BT project is approved by a competent authority, the value of the BT project shall be recorded as state budget expenditure according to the final value and any differences shall be recorded as state budget revenues and expenditures as prescribed in Clause 2 of this Article.

Chapter III

IMPLEMENTATION

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1. Payment to investors by land areas or working offices under BT contracts duly signed before January 01, 2018 shall be continued according to terms and conditions of the signed BT contracts.

If a BT contract does not provide specific provisions on payment, the payment shall be made according to the 2013 Law on land, 2014 Law on investment, 2014 Law on construction, 2015 Law on state budget, 2017 Law on management and use of public property and relevant laws in force at the time of payment.  Where:

a) The value of a BT project must be determined in accordance with laws on investment and construction, and relevant laws.

b) The use of land areas and working offices for making payment to investors shall be made according to regulations of the Law on land. To be specific:

- Land areas and working offices must adhere to the land use master plans or plans approved by competent authorities.

- Payment by cleared land areas and working offices shall be subject to the Prime Minister’s decision.

c) Values of land areas and working offices used for payment must adhere to the principle of parity, i.e. the value of the land area or working office must be equivalent to the value of the BT project.

d) Values of land areas and working offices used for payment shall be recorded as state budget revenues and expenditures in accordance with regulations of the Law on state budget.

2. With regard to BT contracts which have been signed within the period from January 01, 2018 to the effective date of this Decree and include provisions on use of public property for payment, such payment shall be made according to the 2013 Law on land, 2014 Law on investment, 2014 Law on construction, 2015 Law on state budget, 2017 Law on management and use of public property and relevant laws.

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1. This Decree comes into force from October 01, 2019.

2. The Prime Minister’s Decision No. 23/2015/QD-TTg dated June 26, 2015 providing the mechanism whereby the State uses land to make payment to investors implementing construction investment projects in the form of Build – Transfer shall be abrogated.

Article 19. Responsibility for implementation

1. The Ministry of Finance shall provide guidance on use of public property for making payment for investors.

2. The Ministry of Planning and Investment shall provide guidance on Clause 3 Article 1 hereof.

3. Ministries, central government authorities and provincial People’s Committees shall organize the use of public property for making payment for investors in accordance with regulations of law./.

ON BEHALF OF THE GOVERNMENT
THE PRIME MINISTER




Nguyen Xuan Phuc

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