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MINISTRY OF
PLANNING AND INVESTMENT
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SOCIALIST
REPUBLIC OF VIETNAM
Independence - Freedom - Happiness
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No. 09/2018/TT-BKHDT
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Hanoi, December
28, 2018
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CIRCULAR
PROVIDING
GUIDANCE ON THE IMPLEMENTATION OF A NUMBER OF ARTICLES OF GOVERNMENT’S DECREE
NO. 63/2018/ND-CP DATED MAY 4, 2018 ON INVESTMENT IN A PUBLIC-PRIVATE
PARTNERSHIP FORM
Pursuant to the Law on Public Investment
No. 49/2014/QH13 dated June 18, 2014;
Pursuant to the Law on Investment No.
67/2014/QH13 dated November 26, 2014;
Pursuant to the Law on Bidding No.
43/2013/QH13 dated November 26, 2013;
Pursuant to the Law on Construction No.
50/2014/QH13 dated June 18, 2014;
Pursuant to the Government's Decree No.
63/2018/ND-CP dated May 4, 2018 on investment made in a Public-Private
Partnership form;
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;
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Chapter I
GENERAL
PROVISIONS
Article 1. Scope
and subjects of application
1. This Circular provides instructions
about information to be provided upon preparation and assessment of
pre-feasibility study reports and feasibility study reports of PPP projects,
contents of PPP project contracts and other information prescribed in clause 2
of Article 68 in the Decree No. 63/2018/ND-CP.
2. This Circular shall apply to Ministries,
Ministry-level and Governmental bodies (hereinafter referred to as ministry and
sectoral administrations), People’s Committees of centrally-affiliated cities
and provinces (hereinafter referred to as provincial People’s Committee);
entities, organizations or units entrusted with tasks or authorized under the
provisions of clause 3 and clause 4 of Article 8 in the Decree No. 63/2018/ND-CP;
investors and project management enterprises; lenders and organizations,
entities or individuals related to the implementation of PPP projects.
Article 2. Information
to be included upon preparation and assessment of pre-feasibility study
reports, feasibility study reports and contents of project contracts
1. Pre-feasibility study reports and
feasibility study reports shall be prepared under the provisions of Article 18
and Article 29 in the Decree No. 63/2018/ND-CP and instructions given in
Appendix I and III hereto. As for group-C projects proposed by investors,
proposal documentation shall be prepared in accordance with Article 23 of the
Decree No. 63/2018/ND-CP, including information contained in feasibility study
reports which are prepared based on instructions given in the Appendix III
hereto.
2. Reports on assessment of pre-feasibility
study reports shall be prepared according to instructions given in the Appendix
II hereto.
3. Reports on assessment of feasibility
study reports shall be prepared under the provisions of clause 2 and clause 3
of Article 30 in the Decree No. 63/2018/ND-CP and instructions given in the Appendix
IV hereto.
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5. Based on the nature, scale and sector of
each project, organizations and individuals must used Appendix I, II, III, IV,
V.a and V.b hereto for preparing and assessing pre-feasibility study reports,
feasibility study reports and draft PPP contracts. In addition to provisions
laid down in these Appendices, pre-feasibility study reports, reports on
assessment of pre-feasibility study reports, feasibility study reports, reports
on assessment of feasibility study reports and project contracts may be
prepared and may contain other agreements on conditions that these agreements
are not in breach of provisions laid down in the Decree No. 63/2018/ND-CP, this
Circular and other relevant legislative documents.
Article 3. State
agencies having authority over signing and implementation of project contracts
delegated by the Prime Minister in accordance with clause 1 of Article 8 in the
Decree No. 63/2018/ND-CP
In case where projects are put under the
duties and powers of Ministries, Sectoral Administrations or provincial
People’s Committees, they shall seek an agreement and appeal to the Prime
Minister to assign one Ministry, sectoral administration of provincial People’s
Committee to serve as a state agency having competence in signing and
implementing project contracts.
Article 4.
Selection of project proposal documentation in case there is at least one
investor submitting proposal documentations for a project under clause 2 of
Article 24 in the Decree No. 63/2018/ND-CP
1. After receipt of proposal documentation
for a project submitted by an investor, the Ministry, sectoral administration
and provincial People's Committee may receive project proposal documentation
from another investor within the maximum duration of 10 working days of receipt
of proposal documentation from the first investor if that project has the same
objectives and locations, and conforms to the planning scheme.
2. Criteria for selection of project proposal
documentation which is judged the most feasible and efficient shall be composed
of the followings:
a) Requirements set out in clause 1 of
Article 20 in the Decree No. 63/2018/ND-CP;
b) Necessity for investment to be made;
c) Technical feasibility, including land
use plans;
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dd) Financial feasibility of a project;
e) Investor’s capabilities of and
experience in undertaking preparation of the pre-feasibility study report and
the feasibility study report for the project that such investor proposes.
3. Based on specific conditions and
requirements for implementation of projects, ministries, sectoral
administrations and provincial People’s Committee shall decide on the
evaluation method for comparison and selection of project proposal
documentation which is the most feasible and efficient, including the
determination of ratio between elements prescribed in point c, d, dd and e of
clause 2 in this Article.
Article 5. Approval
of transformation policies and feasibility study reports of transformation
projects under clause 1 of Article 27 in the Decree No. 63/2018/ND-CP.
Competent authorities shall grant the
approval of transformation policies and feasibility study reports of
transformation projects under clause 1 of Article 27 in the Decree No.
63/2018/ND-CP. In case preexisting projects are subject to investment decisions
issued by district- or commune-level People’s Committees, these Committees
shall report to provincial People’s Committees to request their review and
approval of transformation policies and feasibility study reports of
transformation projects.
Article 6. Implementation
of projects implemented under BT contracts in accordance with Article 33 in the
Decree No. 63/2018/ND-CP
1. As for group-C projects implemented
under BT contracts, procedures for implementation of these projects shall be
subject to clause 2 of Article 9 in the Decree No. 63/2018/ND-CP; concurrently,
projects need to be prepared and assessed for approval of their designs or cost
estimates before selection of contractors as prescribed in points c, d and dd
of clause 1 of Article 33 in the Decree No. 63/2018/ND-CP.
2. In case of transformation of projects
from the public investment form into PPP investment form by applying BT
contracts, after competent authorities approve the policies on transformation
and feasibility study reports of transformation projects, procedures for
implementation of these transformation projects shall be subject to provisions
laid down in point c, d and dd of clause 1 of Article 33 in the Decree No.
63/2018/ND-CP.
Article 7. Mixed
contracts subject to provisions laid down in clause 3 of Article 40 in the
Decree No. 63/2018/ND-CP
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a) Necessity of and advantages in applying
mixed contracts in comparison to other contracts prescribed in clause 3, 4, 5,
6, 7, 8 and 9 of Article 3 in the Decree No. 63/2018/ND-CP;
b) Main objectives and purposes of a
projects; sequences for implementation of a projects and authority to grant the
decision on corresponding contents;
c) Feasibility of the method for
construction, ownership, management, business, operation, use and transfer of
project works; financial plans;
d) Recommended principles of consideration
of grant of a decision on award of contracts to investors upon selection of
contractors in conformity with proposed contracts.
2. In case a project applies a mixed
contract constituted by a BT contract, the detailed interpretation of
preparation, assessment, approval and supervision of the quality of project
works, and transfer of project items applying BT contracts to a competent
regulatory authority, must be given.
Article 8. Public
disclosure of project information and project contract
1. Within duration of 07 working days of
receipt of a competent authority’s decision on investment policy or approval of
feasibility study reports of group-C projects, project information and list of
projects may be disclosed under Article 21 in the Decree No. 63/2018/ND-CP.
2. Within duration of 07 working days of
signing of a project contract, the procuring party shall be responsible for
making information about the project contract known to the public under Article
41 in the Decree No. 63/2018/ND-CP, except contents of project contracts that
need to be kept confidential according to agreements or laws on information
security.
Article 9.
Implementation
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2. This Circular shall replace the Circular
No. 02/2016/TT-BKHDT dated March 1, 2016 of the Minister of Planning and
Investment providing guidance on the initial selection of projects,
preparation, assessment and approval of proposals for projects and feasibility
study reports of projects implemented in a PPP investment form and the Circular
No. 06/2016/TT-BKHDT dated June 28, 2016 of the Minister of Planning and
Investment providing guidance on implementation of certain articles of the
Government’s Decree No. 15/2015/ND-CP dated February 14, 2015 on investment in
a PPP form.
3. Ministries, Ministry-level agencies,
Governmental bodies, other central agencies, People’s Committees at all levels,
and other entities, organizations or individuals concerned, shall be
responsible for implementing this Circular.
4. In the course of implementation of this
Circular, if there is any difficulty likely to arise, Ministries,
Ministry-level agencies, Governmental bodies, other central bodies, People's
Committees at all levels, and other entities or individuals concerned, should
send their feedbacks to the Ministry of Planning and Investment for its timely
consideration and decision of proper actions to be taken. In case other issues
which are not specifically regulated arise, it shall be obligatory to report to
the Prime Minister to seek his consideration and decision under the provisions
of Article 77 in the Decree No. 63/2018/ND-CP./.
MINISTER
Nguyen Chi Dung
APPENDIX
I
INSTRUCTIONS ON PREPARATION OF PRE-FEASIBILITY STUDY REPORTS
FOR PPP PROJECTS
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Depending on the nature, size of a project
and the industry in which a project involves, the entity preparing that project
or the investor can complete a pre-feasibility study report (PSR) containing
the following information:
A. GENERAL INFORMATION ABOUT THE PROJECT
Summarizing and interpreting basic
information about a project, including:
- Project name;
- Name of the competent regulatory
authority signing a contract with the investor;
- Name of the entity preparing the project
or the investor proposing the project;
- Location, scale and capacity of the
project and area of land available for use as the project site;
- Engineering requirements;
- Total estimated investment;
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- Project contract type;
- Main indices in a preliminary financial
plan;
- Project contract period;
- Investment incentives and guarantee;
- Other related information.
B. BASES FOR PREPARATION OF PRE-FEASIBILITY
STUDY REPORT
Listing out legislative documents used as
bases for preparing PSR, including:
- Laws, Decrees and Circulars giving
instructions concerning implementation of a PPP project;
- Laws, Decrees and Circulars providing
instructions concerning investment industries and sectors in which a project is
involved;
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- Other relevant legislative documents.
C. DOCUMENTATION INCLUDED IN THE
APPLICATION PACKAGE FOR EVALUATION OF PSR
Documentation included in the application
package for evaluation of PSR comprise:
- Application form for approval of the
decision on an investment policy;
- Full texts of the pre-feasibility study
report;
- Decision to use public property for
participation in a PPP project under laws on management and use of public
property;
- Full texts of the environmental impact
assessment report prepared in accordance with law on environmental protection;
- Other relevant legislative materials and
documents.
If a project is proposed by an investor,
documentation included in the proposal for that project shall be subject to
Article 23 of the Decree No. 63/2018/ND-CP.
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I. Necessity of an investment project
1. General context
- Making the preliminary interpretation of
general socio-economic contexts of the entire country and/or locality in the
stage of implementation of the project.
- Giving the general overview on sectors or
industries proposed by the project, direct and indirect effects of specialized
laws on the project.
- Making the analysis of relevance of the
project to planning schemes according to laws on national planning schemes and
plans for socio-economic development, sectoral, industrial, regional and local
development plans.
- Making the evaluation of effects of a PPP
project on the community and population living within the vicinity of the
project site.
2. Current conditions of the project site
In case of initiation of a new project,
explanatory notes on the reality and current status of the region or location where
that project will be implemented must be given. With respect to a renovation,
repair or improvement project, the supplementary assessment of the existing
project that needs to be renovated, repaired or improved must be made.
3. Other related projects
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4. Objectives of a project
Giving the preliminary interpretation of
general and specific objectives that the project must achieve in the contexts
and current conditions that have been analyzed above.
5. Advantages of making investment in a PPP
form
Giving the analysis of advantages of the
PPP investment form compared with other investment form based on the following
data about: Capability of calling for funding sources, technologies and
experience in management of the private sector; competence in dividing risks
between involved parties and other matters.
II. Technical Interpretation1
1. Project scale and capacity
Giving the preliminary analysis of total
demand for works to be developed by the project, products or services provided
on the basis of planning, actual survey data or forecast data; making the interpretation
of the project scale and capacity.
2. Project location
Describing the location and land plot used
for implementation of the project, other projects or works currently developed
or to be developed in the adjacent regions with planning schemes or those
related to the project (if any).
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In case the land plot intended for a
project has not been cleared for use as a project site, the preliminary
interpretation of the compensation, support and resettlement method to be used
for the proposed project or other project (if the BT contract is made) must be
made in accordance with applicable regulations.
4. Engineering and technological
requirements and requirements concerning the quality of project works, products
or services
Based on the project scale, capacity,
standards and norms of each industry, availability and practicality of the
technology created by the project, PSR may analyze certain likely methods and
suggest the method relevant to technical requirements and requirements
concerning the quality of works, products or services as a basis for
calculation of total investment. PSR needs to clearly state that the investor
is entitled to propose other technical and technological methods that are
conformable to technical requirements and requirements concerning the quality
of works, products or services, and improve the effectiveness of the project.
5. Preliminary design plans
Contents of each preliminary design plan in
the PSR must be subject to laws on construction (with respect to a project with
construction packages) or other specialized regulations (with respect to a
project without construction packages).
6. Total investment
Based on interpretations of selected
engineering solutions, PSR must make an estimate of total investment,
including: Total investment outlay and initial working capital.
Both are defined as follows:
- Total investment outlay is defined
according to laws on construction with respect to projects with construction
packages or specialized laws with respect to projects without construction
packages.
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7. Other projects (only applicable to BT
projects)
PSR needs to provide initial information
about other projects, specifically including:
- As for BT projects using unoccupied land,
working offices and real property for making payments to investors, giving
initial information about the proposed location, estimated size and value
thereof and other necessary information (if any).
- As for BT projects that make payments to
investors in a form of assignment of the rights of business and operation of works
and services, giving initial information about the proposed scope and duration
of assignment of such rights to investors, value of assigned rights and other
information (if any).
III. Impacts on environment, society,
national defence and security
Making the preliminary assessment of
environmental impacts under laws on environmental protection; impacts of the
project on society, national defence and security and others (if any).
IV. Demand forecasting
Analyzing the number of users and demands for
works, products or services; making a forecast about the speed of growth in
demands in the future, using this forecast as a basis for evaluation of
socio-economic efficiency and preliminary analysis of the financial plan.
V. Preliminary analysis of socio-economic
effectiveness of the project
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Making the preliminary estimate of socio-economic
costs and benefits classified by the following groups of elements:
- Group of elements that are quantifiable
and convertible into monetary value (may be used for calculation of the
benefit-cost ratio in economic aspects according to the instructions given in
Section V.2 in this Part).
- Group of elements that may be quantified
but cannot be valued (ex: Benefits obtained owing to environmental improvements
and those obtained due to enhancement of the economic growth and creation of
more jobs, etc.).
- Group of qualitative elements (ex:
Benefits gained due to the increased connectivity between manufacturing areas
and hubs that consume and improve the living standards of people residing
within the project site, etc.).
2. Making the preliminary analysis of
socio-economic efficiency of a project by calculating the benefit-cost ratio
(BCR)
The benefit-cost ratio (BCR) refers to the
ratio of the benefits generated from the project compared to the costs incurred
from investment in and operation of the project, which is converted into the
present value. The project will be deemed to achieve the socio-economic
efficiency if BCR is greater than 1 (>1). BCR is preliminarily calculated at
the step of preparation of PSR according to the following formula:
Where:
Bt = Initial value of the
benefits generated in the tth year;
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t = Year in the life cycle of the project
(0, 1, 2,..., n);
n = Number of years during which the
project is operated (project contract duration);
re = Economic discount rate of
the project2.
3. Drawing the preliminary conclusion of
socio-economic efficiency of the project
Based on the analysis made according to
instructions given in Section V.1 and Section V.2 in this Part, PSR gives the
preliminary conclusion of socio-economic efficiency of the project.
In case of lack of prerequisites for
determination of elements, such as costs and benefits, which may be quantified
and converted into monetary values as a basis for calculation of the BCR, PSR
should give the preliminary conclusion on the socio-economic efficiency of the
project based on other remaining groups of elements.
VI. Financial analysis
1. Input parameters used in financial
models
- Costs incurred during the entire life
cycle of a project: Costs incurred during the entire life cycle of a project are
constituted by total investment outlay and costs incurred from exploiting and
operating the project during its entire life cycle. Total investment outlay is
defined according to laws on construction with respect to projects with construction
packages or specialized laws with respect to projects without construction
packages. Costs incurred from exploiting and operating a project during its
life cycle are equal to those related to operation and maintenance of works
belonging to the project; costs incurred from remunerations paid to employees
operating and servicing works belonging to the project; project management
costs; supervision consultancy costs and provisional costs, etc.
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- Other input parameters: Loan interest and
maturity; inflation rate; exchange rate; depreciation rate and other
parameters.
2. Preliminary analysis of financial plans
Representing the preliminary financial plan
under the instructions of the Ministry of Finance, including:
- Total investment;
- Structure of funding sources and
presumptive capital mobilization plan;
- Recommended preferential treatment for
assurance of the financial plan of a project (if any);
- The investor’s return on equity ratio;
- Estimated costs incurred during the
entire period of operation of the project;
- Plan for recovery of investments and
profits of the investor;
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- Other financial indices referred to in
Section VI.3 in this Part.
3. Financial indices for assessment of the
feasibility of a project
3.1. Except projects implemented under BT
contracts, based on initial data of financial plans and input data of financial
models, the financial feasibility of a project may be assessed on the basis of
the index measuring the net present value (NPV).
NPV of a project is the present value of
the net cash flow during the entire life cycle of a project. The project will
be deemed to achieve the financial efficiency if NPV is positive (>0). NPV
is calculated according to the following formula:
Where:
CFt = Value of net cash flow
denoting the difference between the amount of cash received (cash inflow) and
the amount of cash spent (cash outflow) of a project in the tth
year;
t = Year in the life cycle of the project
(0, 1, 2,..., n);
n = Number of years during which the
project is operated (project contract duration);
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Based on particular conditions of each
project, PSR can include indices measuring the feasibility of a financial plan
under the instructions of the Ministry of Finance.
3.2. Projects implemented under BT
contracts
- As for BT projects using unoccupied land,
office buildings and other infrastructure facilities as payments to investors
under laws on management and utilization of public property, taking the
preliminary inventory of unoccupied land plots, office buildings and other
infrastructure facilities (including information about location, size, value
and others) intended as payments to investors. A project will be proved
financially feasible only if unoccupied land, office buildings and other infrastructure
facilities are defined clearly and compliant with laws, and adhere to payment
principles prescribed by laws on management and usage of public property.
- As for BT projects that make payments to
investors in a form of assignment of the rights of business and operation of
works and services created by a project, giving preliminary information about
the scope, duration and value of such rights assigned to investors as a basis
for analysis of a financial plan.
4. Preliminary conclusion on the financial
feasibility of a project
Based on analyses referred to in the
aforesaid Sections, and the nature of each project contract, PSR must give the
preliminary conclusion on the financial feasibility of the project.
VII. Project contract type
Based on interpretations of technical
plans, demand projections and financial plans, specifying the contract type
most suitable to the project.
The selected type of contract must describe
roles, responsibilities, distribution and management of risks related to implementation
of the project of and between competent regulatory authorities and investors
during the life cycle of a project, including: Responsibilities of competent
regulatory authorities and project management units; responsibilities of
investors, project management enterprises and responsibilities of other bodies
involved (such as lenders, input product or service providers, product
underwriters and contractors, etc.).
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PSR needs to give the preliminary
interpretation of certain major risks likely to arise during the life cycle of
a project, including legal risks, risks in land tenure, environmental risks,
risks in selected techniques or technologies, design and construction-related risks,
financial risks and risks related to market demands and operational risks, etc.
Analyzing the mechanism for distribution
and management of risks and responsibilities that involved parties may assume
with respect to management of risks and determination of certain risk
minimization measures.
IX. State support measures
1. Portion of State participation in a
project (if any)
Based on results of the preliminary
analysis of the socio-economic efficiency, the financial analysis of a project
and the selected type of project contract, making the interpretation of
information related to the portion of State participation in the project,
including:
- As for projects that need the State
capital contribution to ensure their financial feasibility, giving initial
information about value of the portion of state-owned investment or value of
the public property; mid-term and annual public investment plans with respect
to funding sources used for public investment purposes; proposed methods, plans
and schedules of disbursement of funds to investors.
- As for projects using public property
that the state contributes as capital participation in these projects, the
entity preparing each project must specify value of public property stated in
the decision on use of public property as capital participation in a PPP
project under laws on management and usage of public property; methods, plans
and schedules of transfer or assignment of public property to the project
investor.
- As for projects that need funds for
payments to investors, giving initial information about the values of capital
contribution portions, estimates of funds and balancing capabilities (proposed
mid-term and annual plans for use of state budget revenues as public
investments or funding plans or estimates of regular state budget expenditures
used for maintaining provision of public utilities, estimates of state budget
revenues generated from provision of public utilities); approaches, plans and
schedules of disbursement of funds to investors.
- As for projects applying BT contracts,
giving initial information about unoccupied land, office buildings and
infrastructure facilities (including their location, measurement, value and
other related information); scope and duration of assignment of the rights of business
and operation of project-related works and services to investors.
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2. Investment incentives and guarantee
Making recommendations about investment
incentives (including those tailor-made to industries, fields or localities),
types of guarantee or assurance of the Government and associated conditions as
well as other required obligations assumed during the project contract
implementation period.
X. Project implementation plan
Making recommendations about the timelength
of preparation of a project (including the duration of preparation and
assessment of PSR and the decision on investment policy; preparation,
assessment and approval of feasibility study report; selection of investors and
signing of project contracts); implementation duration; point of time of
completion of the project under discussion and other projects (in case of use
of BT contracts).
XI. Management of project implementation
1. Form and organization structure of
management of implementation of PPP projects
PSR must make the interpretation of form
and organization structure of management of implementation of projects by
competent regulatory authorities, investors and project management enterprises
over specific periods of time; the method of cooperation among competent
regulatory authorities, investors and project management enterprises during the
project implementation period.
As for projects with construction packages,
investors and project management enterprises may choose the form of management
of project under laws on construction. As for projects without construction
packages, the form of management of project must be subject to relevant
legislative regulations.
2. Tasks of management of implementation of
projects
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3. Management of implementation of BT
projects
PSR should define competent regulatory
authorities charged with directly managing or authorizing other entities to
manage a project and the project management board which has been established,
have appropriate competence and professional qualifications to cooperate with
investors in supervision of quality of the project. Tasks, scope of and
responsibilities for management of compliance with laws on construction must be
specified.
E. CONCLUSIONS AND RECOMMENDATIONS
This section presents conclusions on
whether PSR meets requirements stated in the decision on investment policy
prescribed in clause 1 of Article 20 in the Decree No. 63/2018/ND-CP and is
suitable for use as a basis for investments made in a PPP form.
It must give recommendations to competent
regulatory authorities for implementation of procedures for carrying out
assessments and making decisions on investment policies and must identify
matters that need to be mentioned in detail in the feasibility study report.
APPENDIX
II
INSTRUCTIONS ON ASSESSMENT OF PRE-FEASIBILITY STUDY REPORTS
FOR PPP PROJECTS
Based on the nature, scale, field and
contents of the PSR, the report on assessment of PSR shall contain the
followings. As for PSR prepared by an investor, it shall be necessary to
consider elements in the investor’s interpretation. The assessment body needs
to give their comments in detail on each information field and suggest
recommended actions to be taken in case there are contrary opinions or it is
necessary to work with the entity preparing the project or the investor
proposing the project in making any necessary amendment or correction.
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This section must give general information
about a project, including: Project name; name of the regulatory authority
having competence in signing the project contract with the investor; the entity
preparing the project or the investor proposing the project; location, scale
and capacity of the project, area of land to be used; technical requirements;
total investment; state participation in the project (if any); project contract
type; major indices presented in a financial plan; project contract period;
investment incentives and guarantee; other relevant information.
B. SYNTHESIS OF OPINIONS FROM RELATED
ENTITIES AND BODIES
The assessment body shall consolidate
opinions from related entities on PSR documentation of a project.
C. CONSOLIDATION OF ASSESSMENT RESULTS
I. Preliminary checking of documentation
The assessment body shall give its
assessment of:
- Adequacy of required documents and data
or information.
- Relevance of legal bases for preparation
of PSR.
- Compliance with laws during the period of
preparation of PSR.
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1. Necessity of an investment project
The assessment body shall assess the
relevance of a PSR in terms of the following contents:
- Relevance of the project to the planning
scheme and plan for economic and social development of an industry, region and
the local socio-economic development plan.
- Urgency and necessity of an investment
project.
- Effects of a project on a community and
population living within the project site.
- Relevance of general and specific
objectives to the current status of an industry, sector or locality, and
capability of solving issues to meet the demands of a community or population.
- Advantages in implementing a project in a
PPP form compared with other investment form.
2. Feasibility of a project
a) Technical feasibility
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- Engineering and technological plans:
Assessing the relevance of an engineering or technological plan to the project
scale or capacity, standards, norms and technical requirements concerning
inputs; the availability and practicality of the chosen technology; the clarity
and adequacy in the determination of main technical risks and the rationality
of the risk minimization plan.
- The suitability of the location where a
project is implemented based on geographical, administrative, social, economic,
technical conditions, infrastructure and survey results (if such survey has
already been conducted).
- Preliminary design plans: Collecting
assessment opinions from specialized construction bodies according to laws on
construction with respect to projects with construction packages or specialized
laws with respect to projects without construction packages.
- Compensation, support and resettlement
plans: Assessing the relevance and feasibility of a plan in accordance with
legislation on land.
b) Socio-economic efficiency of a project
- Contributions of a project to
accomplishment of socio-economic tasks: The analysis of the socio-economic
efficiency of a project serves the purpose of comparing benefits that may be
obtained by implementation of the plan for investment in the project and those
that may be obtained by implementation of the plan for maintenance of the
current status and making none of investments. Additionally, in case where
there are a lot of projects that need investments, the project proving the
higher socio-economic efficiency than others will be preferred and will be selected
depending on the capability of balancing state budget allocations for
investment in the project. Therefore, the assessment body needs to assess
the relevance and accuracy of socio-economic costs and benefits, and the BCR. The
project will be deemed to achieve the socio-economic efficiency if BCR of that
project is greater than 1 (>1). In case where BCR is not determined in the
PSR, the assessment body may assess the rationality of other elements.
- Impacts of a project on environment,
society, national defence and security (if any): Assessing the relevance of the
interpretation of impacts of a project on environment, society, national
defence and security as well as other issues.
c) Financial feasibility
- Except BT projects, the assessment body
may assess the relevance and accuracy of financial input elements, financial
indices and may preliminarily assess the financial plan of a project. A project
will be deemed to achieve the financial efficiency if NPV is positive (>0).
In addition, if a PSR inserts other indices in order to assess the feasibility
of a financial plan under the instructions of the Ministry of Finance, the
assessment body may carry out the supplementary assessment of these indices in
order to assess the feasibility of that project.
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- As for projects using public property as
state capital participation, making a general report on values of public
property determined in the decision on use of public property as capital
participation in a PPP project.
- As for BT projects that uses unoccupied
land, office buildings, other infrastructure facilities or rights of commercial
use and operation of project works and services as payments to investors, a
project will be deemed financially feasible if unoccupied land plots, office
buildings or infrastructure facilities are specified, meet regulations of laws
and adhere to payment principles prescribed in laws on management and use of
public property and specialized laws.
- Making the assessment of the relevance of
investment incentives and guarantee policies.
3. Relevance of the project contract type
The assessment body shall assess the
relevance of a PSR in terms of the following contents:
- Relevance of the project contract type
and contract term.
- Rationality of the division of
responsibilities between parties involved in implementation of the project,
risk prevention and minimization measures.
4. Relevance of the plan for implementation
of a project, mechanism for supervision and management of a project
The assessment body needs to carry out the
assessment and give specific opinions on the relevance of the plan for
implementation of the project and the mechanism for supervision and management
of the project which are represented in the PSR.
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APPENDIX
III
INSTRUCTIONS ON PREPARATION OF FEASIBILITY STUDY REPORTS FOR
PPP PROJECTS
Feasibility study report refers to a
document describing subject matters of the study relating to the necessity,
feasibility and efficiency of a PPP project. This Appendix provides instructions
about inclusions in a feasibility study report in order for a competent
regulatory authority to consider granting its approval which is a basis for
arranging bids to select contractors.
Depending on the nature and size of a
project and the industry in which a project involves, the entity preparing that
project or an investor can prepare the feasibility study report (FSR) according
to the following information fields:
A. BASIC INFORMATION ABOUT A PROJECT
Summarizing and interpreting basic
information about a project, including:
- Project name;
- Name of the competent regulatory
authority signing a contract with the investor;
- Name of the entity preparing the project
or the investor proposing the project;
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- Engineering requirements;
- Total estimated investment;
- Portion of State participation in a PPP
project (if any);
- Project contract type;
- Main indices presented in the financial
plan;
- Project contract period;
- Investment incentives and guarantee;
- Other related information.
B. BASES FOR PREPARATION OF FEASIBILITY
STUDY REPORT
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- Laws, Decrees and Circulars giving
instructions concerning implementation of a PPP project;
- Laws, Decrees and Circulars providing
instructions concerning investment industries and sectors in which a project is
involved;
- Resolutions and Decisions on approval of
relevant planning schemes according to legislative regulations on national
planning schemes and plans for socio-economic development, sectoral,
industrial, regional and local development plans related to a project;
- Decisions and documents of competent
regulatory authorities used as referents in steps of preparation, assessment of
and decision on investment policies (except group-C PPP projects);
- Other relevant legislative documents.
C. DOCUMENTATION INCLUDED IN THE
APPLICATION PACKAGE FOR EVALUATION OF FSR
Documentation included in the application
package for evaluation of FSR shall comprise:
- Application document for approval of the
feasibility study report;
- Full texts of the feasibility study
report;
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- Decision on approval of the policy on
investment in a project (except group-C projects);
- Other relevant legislative materials and
documents.
D. INCLUSIONS IN A FEASIBILITY STUDY REPORT
I. Necessity of an investment project
1. General context
- Making the thorough interpretation of
general socio-economic contexts of the entire country and/or locality in the
stage of implementation of the project; natural and environmental conditions
likely to affect the project;
- Giving the general overview on sectors or
industries proposed by the project, direct and indirect effects of specialized
laws on the project;
- Making the analysis of relevance of the
project to relevant planning schemes according to laws on national planning
schemes and plans for socio-economic development, sectoral, industrial,
regional and local development plans;
- Making judgements about benefits that a
project is expected to bring to the entire country and/or a locality.
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In case of initiation of a new project,
explanatory notes on the reality and current status or conditions of the region
or location where that project will be implemented must be given. With respect
to a renovation, repair or improvement project, FSR should give the
supplementary interpretation of the current status of works that need to be
renovated, repaired or improved.
3. Other related projects
Giving basic information about related
projects (including ancillary projects and competing projects) likely to affect
revenues, profits or costs, etc., of the proposed project; making the
interpretation of both positive and negative impacts of these projects on the
proposed project.
4. Objectives of a project
Determining general and particular
objectives of a project, including:
- General objectives: Determining
contributions to accomplishing the national general objectives; socio-economic
benefits that the project brings to the entire country, locality, sector or
industry.
- Specific objectives: Determining issues
and current situations that may be solved; the number of beneficiaries of the
project; the objectives regarding the scale and capacity that the project is
expected to reach in order to meet the demands of users.
5. Advantages of making investment in a PPP
form
Giving the thorough analysis of advantages
of the PPP investment form compared with others based on the following
indicators: Capability of calling for funding sources, technologies and
experience in management of the private sector; results of the practical survey
on the private sector’s capability of implementation of the project; plans to divide
risks between involved parties and other related matters.
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Synthesizing consulting opinions on
investment in completion of the project made by one or more entities such as
People’s Councils, People’s Committees and National Assembly Deputy Delegations
of cities and provinces where projects are implemented; trade and professional
associations related to investment sectors of the project.
II. Technical Interpretation of a project
1. Project scale and capacity
Making the analysis of the demands for
infrastructure facilities and public services based on planning schemes,
practical survey data or other forecast data; making the interpretation of the
project scale and capacity; in case the investment phasing is needed,
specifying the scale and capacity of the project in each phase according to the
forecast of increase in demands.
2. Project location
Describing information about project location
and land plot used as the project site, including the scope, measurement of
land used for the project, current status of the land plot which is used,
safety corridor (if any), construction area of land and advantages in terms of
project location3. In case other projects or works that
are being developed or are going to be developed are located within the
vicinity or boundary of the project, making the analysis of the extent of
impacts of these projects or works on the proposed project.
3. Compensation, support and resettlement
plans
- In case the land plot intended for the
project has not been cleared for use as the project site, the interpretation of
the compensation, support and resettlement plan to be used for the proposed
project must be made in accordance with applicable regulations.
- If the project is implemented under a BT
contract, making the interpretation of the compensation, support and
resettlement plan intended for other projects based on the 1/2,000 or 1/500-scale
construction planning map in accordance with applicable regulations.
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- Determining engineering and technological
plans based on the scale and capacity of a project; standards and norms of an
industry that the project involves; the availability and practicability of the
technology used in the project; engineering and technological risks (if any);
input and output requirements of the project.
- Giving details about technical
requirements and requirements concerning the quality of project works, products
or services based on the index measuring the technical quality of the project.
- Describing the engineering and
technological plan selected in the FSR. This is the basis for calculation of
total investment in the project. FSR needs to clearly state that the investor
is entitled to propose other engineering and technological plans that are
conformable to technical requirements and requirements concerning the technical
quality of works, products or services, and improve the effectiveness of the project.
5. Basic design
Each basic design plan in the FSR must
contain data and information subject to laws on construction (with respect to a
project with construction packages) or other specialized legislative
regulations (with respect to a project without construction packages).
6. Total investment in a project
Based on interpretations of the selected
technical solution, FSR must make an estimate of total investment in the
project, including: Total investment and initial working capital that fund the
exploitation and operation of the project. Where:
- Total investment outlay is defined
according to laws on construction with respect to projects with construction
items or specialized laws with respect to projects without construction
packages.
- Initial working capital needed for
exploitation and operation of projects is defined as the amount of capital
necessary to make payments in the initial stage of operation, business and
management of infrastructure facilities, provision of public services and assurance
of continuity and stability of the project. The initial working capital
must be relevant to the investment sector, specific conditions and progress of
each project.
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a) BT projects using unoccupied land for
payments to investors
Based on the 1/2,000 or 1/500-scale
construction planning map (if any) of the unoccupied land plot intended for
payments to investors, FSR should give certain information about other projects
implemented at available land plots intended for use as such payments,
specifically including:
- Project location;
- Current status of the site or unoccupied
land lot; planning indices; purposes for which the land is used; land use
structure;
- Initial information about usefulness and
size of the project;
- Initial information about total cost of
implementation of the project (exclusive of costs of compensation, support and
resettlement incurred by unoccupied land intended for use as payments to
investors but not cleared yet);
- Preliminary plans for compensation,
support and resettlement (with respect to unoccupied land intended for use as
payments to investors but not cleared yet);
- Proposed deadline for allocation or
lending of land;
- Other information (if any).
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Based on the decision on use of office
buildings or infrastructure facilities as payments to investors in a BT project
by a competent authority under laws on management and usage of public property,
FSR should provide certain information about other projects as follows:
- Project location;
- Indices linked to the land use planning
and the construction planning;
- Initial information about usefulness and
size of the project;
- Initial information about project costs;
- Proposed deadline of transfer or lending
of land associated with office buildings or infrastructure facilities;
- Other information (if any).
c) BT projects implemented according to the
method of assignment of rights of business and operation of project works or
services to investors
FSR needs to provide basic information
about other projects, specifically including:
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- Scope, duration or value of assignment of
rights of business and operation of project works or services to investors;
- Initial information about usefulness and
size of the project;
- Initial information about project costs;
- Other information (if any).
III. Impacts on environment, society,
national defence and security
1. Environmental impacts
Preparing documentation on environmental
impact assessment in accordance with law on environmental protection. In case
where a project uses natural resources as main inputs (for example, energy,
electricity, water, etc.), giving the thorough analysis of impacts of the
project on natural resources and actions to be taken to minimize negative
impacts.
2. Social impacts
Making the interpretation of elements affecting
society during the project implementation period, such as resettlement support,
gender equality, labor or job creation, etc., and measures to minimize negative
impacts.
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In case where a project causes impacts on
national defence and security, making the full analysis of these impacts and
recommending measures to mitigate negative impacts.
IV. Demand forecasting
As a basis for assessment of the
socio-economic efficiency and analysis of the financial plan of a project, FSR
should analyze the number of users and demands for project works, products or
services; make a forecast about the speed of growth in demands in the future, specifically
including:
- Analyzing current demands: Based on the
current state, scale and capacity of the project, determining the number of
beneficiaries of the project.
- Forecasting future demands: Constructing
(maximum, average or minimum) demand scenarios during the entire life cycle of
the project.
V. Analysis of socio-economic effectiveness
1. Determining socio-economic costs and
benefits
Making the detailed calculation of
socio-economic costs and benefits of the project classified by the following
groups of elements:
- Group of elements that are quantifiable
and convertible into monetary value (may be used for calculation of
socio-economic efficiency indices of the project according to the instructions
given in Section V.2 in this Part).
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- Group of qualitative elements (e.g.
Benefits gained due to the increased connectivity between manufacturing areas
and hubs that consume and improve the living standards of people residing
within the project site, etc.).
2. Indices measuring the socio-economic
efficiency of a project
a) Economic Net Present Value (ENPV)
ENPV is defined as the difference between
benefits and costs arising in a computation period, which is converted into the
present value. The project will be deemed to achieve the socio-economic
efficiency if ENPV is positive (>0). NPV is calculated according to the
following formula:
Where:
Bt = Benefit of the tth
year;
Ct = Cost of the tth
year;
t = Year in the life cycle of the project
(0, 1, 2,..., n);
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re = Economic discount rate of
the project4.
b) Benefit-cost ratio (BCR)
BCR refers to the ratio of total benefit
generated from investments to total cost incurred from investment in and
operation of the project, which is converted into the present value. The
project will be deemed to achieve the socio-economic efficiency if BCR is
greater than 1 (>1). BCR is calculated according to the following formula:
Where: Bt, Ct, t, n
and re are the same as the above-stated ENPV calculation formula.
c) Economic Internal Rate of Return (EIRR)
EIRR refers to the maximum economic
discount rate at which a project recovers its investment and operational costs,
and breaks even. EIRR will equal the discount rate (re) if ENPV = 0
and will be calculated by solving the following equation:
Where: Bt, Ct, t and n are the same as the
above-stated ENPV calculation formula.
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3. Conclusions on the socio-economic
efficiency of a project
Based on the analysis made according to
instructions given in Section V.1 and Section V.2 in this Part, FSR should give
conclusions on the socio-economic efficiency of the project.
In case of lack of prerequisites for
determination of cost and benefit elements which may be quantified and
converted into monetary values as a basis for calculation of indices measuring
the socio-economic efficiency of the project, FSR should give conclusions on
the socio-economic efficiency of the project based on other remaining elements.
VI. Financial analysis
1. Input parameters used in financial
models
- Costs incurred during the life cycle of a
project:
Costs incurred during the entire life cycle of a project are constituted by
total investment outlay and costs incurred from exploiting and operating the
project during its entire life cycle. Total investment outlay is defined
according to laws on construction with respect to projects with construction
packages or specialized laws with respect to projects without construction
packages. Costs incurred from exploiting and operating a project during its entire
life cycle are equal to those related to operation and maintenance of works
belonging to the project; costs incurred from remunerations paid to employees
operating and servicing works belonging to the project; project management
costs; supervision consultancy costs and provisional costs, etc.
- Revenues: Determining
revenues generated from the project in each year (basic-, maximum- and
minimum-level revenues) based on demand forecasting data (which are analyzed in
detail in Section IV); prices and charges of commodities, services and other
revenues of the project (taking into consideration legal bases for
determination of prices and charges; the proposed schedule of increase in
prices and charges).
- Other input parameters: Loan interest and
maturity; inflation rate; exchange rate; depreciation rate and other
parameters.
2. Analysis of financial plans:
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- Total investment;
- Structure of funding sources and
presumptive capital mobilization plan;
- Recommended preferential treatment for
assurance of the financial plan of a project (if any);
- The investor’s return on equity ratio;
- Estimated costs incurred during the
entire period of operation of the project;
- Plan for recovery of investments and
profits of the investor;
- Portion of State participation in the
project (if any);
- Other financial indices referred to in
Section VI.3 in this Part.
3. Financial indices used for assessment of
the feasibility of a project
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- Net Present Value (NPV)
NPV of a project is the present value of
the net cash flow during the entire life cycle of a project. The project will
be deemed to achieve the financial efficiency if NPV is positive (>0). NPV
is calculated according to the following formula:
Where:
CFt = Value of net cash flow
refers to the difference between the amount of cash received (cash inflow) and
the amount of cash spent (cash outflow) of a project in the tth
year;
t = Year in the life cycle of the project
(0, 1, 2,..., n);
n = Number of years during which the
project is operated (project contract duration);
r = Discount rate (determined under the
instructions of the Ministry of Finance).
- Internal Rate of Return (IRR)
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Where: CFt, t and n are the same
as the above-stated NPV calculation formula.
For the purpose of assessment of the
financial feasibility of a project, after being calculated, IRR needs to be
compared with the following values: (i) Weighted Average Cost of Capital
(WACC); (ii) IRR of other similar projects or those in the same sectors; (iii)
Minimum expected IRR of potential investors in projects – through conducting
market tests during the project research and preparation period. A project
will be deemed financially feasible if IRR is greater than the (i) value and matches
(ii) and (iii) values.
Based on particular conditions of each
project, FSR can add indices measuring the feasibility of a financial plan
under the instructions of the Ministry of Finance.
b) Projects implemented under BT contracts
- As for BT projects using unoccupied land,
office buildings and other infrastructure facilities as payments to investors
under laws on management and utilization of public property, taking the
detailed inventory of unoccupied land plots, office buildings and other
infrastructure facilities (including information about location, size, value
and others) intended as payments to investors. A project will be proved
financially feasible only if unoccupied land, office buildings and other
infrastructure facilities are defined clearly and compliant with laws, conform
to 1/2,000 or 1/500-scale planning map (if any) with respect to projects using
unoccupied land as payments to investors, and adheres to payment principles
prescribed by laws on management and usage of public property.
- As for BT projects that make payments to
investors in a form of assignment of the rights of business and operation of
works and services created by the project, determining the scope, duration and
value of such rights assigned to investors.
4. Conclusions on the financial feasibility
of a project
Based on analyses referred to in the
aforesaid Sections, and the nature of each project contract, FSR must give
conclusions on the financial feasibility of the project.
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1. Bases for selection of project contract
type
Based on interpretations of engineering
proposals, demand forecasts and financial plans of the project, FSR shall
determine whether the project is implemented in the model of investment made
for business purposes or payments to investors are based on the quality of
services, and concurrently, analyse the relevance of the project contract type
to project conditions.
2. Responsibilities of parties involved in
implementation of the project contract
Making the detailed interpretation of roles
and responsibilities of involved parties during the entire life cycle of the
project, including such parties as competent regulatory authorities, investors,
project management enterprises and other related entities (e.g. lenders, input
product or service suppliers, product underwriters and contractors, etc.).
In case of application of a BT contract, providing
supplementary information about certain obligations to investors, possibly
including: advance payments, compensation, support or resettlement with respect
to unoccupied land used for implementation of other projects, and commitments
to implementing other projects, etc.
VIII. Analysis of risks arising during the
project implementation period
1. Analysis of major risks
Describing and assessing major risks likely
to incur during the entire life cycle of a project, such as legal risks, risk
in macroeconomic situations, social risks, risks in land tenure, environmental
risks, market demand risks, design and construction risks, financial risks,
operational risks and contract termination risks. Making the analysis of
probability and level of impacts caused by these risks on the project.
2. Mechanism for distribution and
management of risks
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IX. State support measures
1. Portion of State participation in a
project (if any)
Based on the financial analysis results and
the selected type of contract on the approved project, FSR should give the
detailed interpretation of the following information:
- As for projects that need the State
capital contribution to ensure their financial feasibility, giving information
about the funding source and the value of the portion of the state investment
according to the mid-term and annual public investment plan; the proposed
method, plan and schedule of disbursement of funds to investorst5.
- As for projects using public property
that the state contributes as capital participation in these projects, the
entity preparing the project must specify value of public property stated in
the decision on use of public property as capital participation in a PPP
project under laws on management and usage of public property; methods, plans
and schedules of transfer or assignment of public property to the investor.
- As for projects that need funds for payments
to investors, giving information about the funding source and the value of the
capital contribution portion according to the mid-term and annual public
investment plan with respect to the source of funding for public investment,
and the funding plan or the estimate with respect to recurrent state budget
expenditures used for maintaining provision of public utilities, and state
budget revenues generated from provision of public utilities; the method, plan
and schedule of disbursement of funds to investors.
- As for projects applying BT contracts,
giving information about unoccupied land, office buildings and infrastructure
facilities (including information about their location, measurement, value and
other related information); scope and duration of assignment of the rights of
business and operation of project-related works and services to investors.
- As for projects that need funds for
support for construction of auxiliary works, compensation, support and
resettlement, based on the plan for compensation, support or resettlement which
are analyzed at II.3 in this Part, specifying the funding source and the value
of funds according to the mid-term and annual public investment plan; plan and
schedule of disbursement of funds.
2. Investment incentives and guarantee
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X. Project implementation plan
1. Project preparation
Identifying the aggregate time of
preparation of a project, including:
- Phase of preparation and assessment of
FSR and investment policy decision (already completed).
- Phase of preparation, assessment and
approval of FSR.
- Phase of selection of contractors
(prequalification, bidding, negotiation and signing of the project contract;
finalization of finances for the project and commencement of the project
contract).
2. Project execution
Determining the duration of implementation
of the project contract (including the date of termination of the project contract).
With respect to projects with construction packages, specifying the duration of
construction of works, the time of commencement of operation and transfer of
project works.
In case where it is necessary to divide
stages of implementation of the project for the purpose of decreasing the
complexity of investment or increasing the feasibility of finances and the
attractiveness of the project, FSR should analyse staging causes, give
information about the project staging proposal and describe staging methods.
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1. Form and organization structure of
management of implementation of PPP projects
FSR must make the interpretation of form
and organization structure of management of implementation of projects by
competent regulatory authorities, investors and project management enterprises
over specific periods of time; the method of cooperation among competent
regulatory authorities, investors and project management enterprises during the
project implementation period.
As for projects with construction packages,
investors and project management enterprises may choose the form of management
of project under laws on construction. As for projects without construction
packages, the form of management of project must be subject to relevant
legislative regulations.
2. Tasks of management of implementation of
projects
FSR may give the interpretation of tasks to
be performed in the process of management of implementation of a project,
including tasks and methods of supervision of the quality of project works;
supervision of implementation of the project contract, assurance of the stable
and continuing provision of products and services; the method of business and
operation of project works and provision of services by the investor.
FSR should provide indices measuring the
quality of a project in terms of engineering, operational, environmental,
social, financial and implementation progress issues, etc., as a basis for
preparing the invitation for bid documentation, request documentation, project
contract, supervising the quality of the project work, product or service
provided by an investor or the project management enterprise.
3. Management of implementation of BT
projects
FSR should define competent regulatory
authorities charged with directly managing or authorizing other entities to
manage a project and the project management board which has been established,
have appropriate competence and professional qualifications to cooperate with
investors in supervision of quality of the project. Tasks, scope of and
responsibilities for management of compliance with laws on construction must be
specified.
E. CONCLUSIONS AND RECOMMENDATIONS
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APPENDIX
IV
INSTRUCTIONS ON ASSESSMENT OF FEASIBILITY STUDY REPORTS FOR
PPP PROJECTS
Based on the nature, scale, sector and
contents of the FSR, the report on assessment of FSR shall be prepared by
completing the information stated hereunder. As for FSR prepared by an
investor, it shall be necessary to take into consideration other elements
interpreted by the investor. The assessment body needs to give their comments
in detail on each matter and suggest recommended actions to be taken in case
there are contrary opinions or it is necessary to work with the entity
preparing the project or the investor preparing FSR in making any necessary
amendment or correction.
A. PROJECT OVERVIEW
This section must give general information
about a project, including: Project name; name of the competent regulatory
authority; name of the entity preparing the project or the investor authorized
to prepare FSR; location, scale and capacity of the project, measurement of
land to be used; technical requirements; total investment; state participation
in the project (if any); project contract type; financial plan; project
contract period; investment incentives and guarantee; other relevant
information.
B. SYNTHESIS OF OPINIONS FROM RELATED
ENTITIES AND BODIES
1. Synthesizing opinions from related
entities and bodies.
2. Synthesizing judgements on impacts of
the project according to information items given in Section I.6 of Part D in
the Appendix III herein.
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I. Documentation checking
The assessment body shall give its
assessment of:
- Adequacy of required documents and data
or information.
- Relevance of legal bases for preparation
of FSR.
- Compliance with laws during the period of
preparation of FSR.
II. Assessment of contents of documentation
1. Necessity of an investment project
The assessment body shall assess the
relevance of a FSR in terms of the following contents:
- Relevance of the project to the planning
scheme and plan for economic and social development of an industry, region and
the local socio-economic development plan.
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- Effects of a project on a community and
population living within the project site.
- Relevance of general and specific
objectives to the current status of an industry, sector or locality, and
capability of solving issues to meet the demands of a community or population.
- Advantages in implementing a project in a
PPP form compared with other investment form.
- Level of effects of related projects.
2. Feasibility of a project
a) Assessment of technical feasibility
- Engineering and technological requirements:
Assessing the relevance of an engineering or technological plan to the project
scale or capacity, standards, norms and technical requirements concerning
inputs; the availability and practicality of the chosen technology; the clarity
and adequacy in the determination of main technical risks and the rationality
of risk minimization plans; the applicability of indices measuring the
technical quality of the project.
- Basic design: Collecting assessment
opinions from specialized construction bodies according to laws on construction
with respect to projects with construction packages or specialized laws with
respect to projects without construction packages.
- Input elements: Assessing the relevance
of capability of providing inputs to the scale and capacity of the project in
each stage in order to ensure that inputs are aligned with the forecast about
increase in demands.
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b) Socio-economic efficiency of a project
- Contributions of a project to
accomplishment of socio-economic tasks: The analysis of the socio-economic
efficiency of a project serves the purpose of comparing benefits that may be
obtained by implementation of the plan for investment in the project and those
that may be obtained by implementation of the plan for maintenance of the
current status and making none of investments. Additionally, in case where
there are a lot of projects that need investments, the project proving the
higher socio-economic efficiency than others will be preferred and will be
selected depending on the capability of balancing state budget allocations for
investment in the project. Therefore, the assessment body needs to assess
the relevance and accuracy of socio-economic costs and benefits, and economic
indices (e.g. ENPV, BCR and EIRR). A project will be deemed to achieve the
socio-economic efficiency if the above-mentioned indices meet the following
requirements:
ENPV is positive (>0); BCR is greater
than 1 (>1); EIRR is greater than the Social Discount Rate (SDR).
- Impacts of the project on environment:
Documentation on assessment of environmental impacts of the project must be
prepared and approved in conformity with applicable legislative regulations on
environmental protection. The assessment body must synthesize assessment
opinions on the aforesaid documentation from specialized entities under laws on
environment.
- Impacts of the project on society:
Assessing the relevance of impacts in the FSR interpretation on different
persons in the society, local community, disadvantaged persons incapable of
paying fees or charges for project products or services, such as women, poor or
disabled persons, etc.
- Impacts of the project on national defence
and security (if any): With respect to projects in which national defence and
security issues are addressed, assessing the appropriacy of impacts and
minimization measures specified in FSR.
c) Financial feasibility
- Except BT projects, the assessment body
may assess the relevance and accuracy of financial input elements, financial
indices (e.g. NPV, IRR) and the preliminary financial plan of the project. A
project will be deemed to achieve the financial efficiency if:
+ NPV is positive (>0).
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+ In addition, with respect to FSR adding
other indices measuring the feasibility of a financial plan of a project
according to the instructions of the Ministry of Finance, the assessment body
may carry out the supplementary assessment of these indices in order to assess
the feasibility of that project.
- As for BT projects that uses unoccupied
land, office buildings, other infrastructure facilities or rights of commercial
use and operation of project works and services as payments to investors, a
project will be deemed financially feasible if unoccupied land plots, office
buildings or infrastructure facilities or rights of business and operation of
project works and services are clearly specified, meet regulations of laws and
adhere to payment principles prescribed in laws on management and use of public
property and specialized laws.
- With respect to projects using state
capital participation, assessing the relevance of the value of the portion of
such participation and the amount of fund allocations specified in mid-term
public investment plans; the relevance of value and purposes of use of public
property specified in the decision on use of public property as capital
participation in PPP projects under laws on management and use of public
property or funds derived from retained revenues generated from provision of
public services for payment to investors, or according to funding plans and
estimate of regular expenditures, methods, plans and schedules of disbursement
of funds to investors.
- As for group-C projects using public
investments, delegation of authority to carry out the assessment of funding
sources and capital balancing capabilities with respect to public investments
shall be subject to law on public investment. This assessment shall be used as
a basis for approval of FSR;
- Making the assessment of the relevance of
investment incentives and guarantee policies.
3. Relevance of the project contract type
The assessment body shall assess the
following contents of FSR:
- Relevance of the project contract type
and contract term which are selected.
- Rationality of the division of
responsibilities between parties involved in implementation of the project.
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- Likelihood of incurring risks and level
of impacts of these risks on the project which must be identified in a full and
duly manner;
- Risk minimization measures which must be
determined in a duly manner.
4. Relevance of the plan for implementation
of a project, mechanism for supervision and management of a project
The assessment body needs to carry out the
assessment and give specific opinions on the relevance of the plan for
implementation of the project and the mechanism for supervision and management
of the project which are represented in the FSR.
D. REMARKS AND RECOMMENDATIONS
I. Remarks
Based on the aforesaid analyses, the
assessment body shall consolidate remarks on FSR.
II. Recommendations
- If a FSR conforms to laws and is judged
feasible to receive investments in a PPP form, the assessment body may
recommend a competent authority to grant approval of this FSR. As for group-C projects,
if there are at least two investors submitting project proposal documentation
as prescribed in clause 2 of Article 24 in the Decree No. 63/2018/ND-CP and
Article 4 herein, the assessment body may submit the selected project proposal
documentation to the competent authority to seek its approval of the FSR.
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+ Plan 1: Requesting the entity preparing
the project and the investor to adjust the FSR.
+ Plan 2: Refuse to approve the FSR.
APPENDIX V.A
BASICS OF PPP
PROJECT AGREEMENT (NOT APPLICABLE TO PROJECTS USING BT CONTRACTS)
Based on business sectors, scales and
properties of PPP projects (except projects using BT contracts), competent
regulatory bodies can arrange, revise and supplement terms and conditions in
accordance with agreements of specific kinds, including:
I. LEGAL BASES FOR CONCLUSION OF PROJECT
AGREEMENTS
Listing out legal documents used as bases
for conclusion of a project agreement, including:
- Laws, Decrees and Circulars giving
instructions concerning implementation of PPP projects;
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- Resolutions and Decisions on approval of
relevant planning schemes according to legislative regulations on national and
local planning schemes and plans related to projects;
- Decisions and written documents issued by
competent authorities during the pre-investment stage;
- Other relevant legislative documents.
II. CONTRACTING PARTIES
Giving information about parties entering
into a project agreement, including:
a) Particulars of the competent regulatory
body (e.g. Ministry, sectoral administration, provincial People’s Committee or
any authority authorized to enter into the agreement and execute group-B
project agreements as provided in clause 4 of Article 8 in the Decree No.
63/2018/ND-CP).
- Competent regulatory body’s name;
- Address;
- Telephone and facsimile number;
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- Authorization letter (if any).
b) Particulars of the investor:
- Company's name (Vietnamese, English and
abbreviated name (if any));
- Address;
- Telephone and facsimile number;
- Information about Enterprise Registration
Certificate or Investment Registration Certificate (including number, date and
place of issuance, issuer) (applicable to the investor that is a Vietnamese
company or a foreign-invested company established within the territory of
Vietnam);
- Legal representative’s name and title.
(If the Contracting Party is a foreign
investor, specifying the investor’s name, nationality and credentials of the
investor, numbers of business establishment license and business registration
certificate or other equivalents (if any); address, telephone, facsimile, full
name and title of the authorized representative).
c) Project company (applicable to the case
in which the investor and the project company form a Contracting Party to sign
the project agreement with the competent regulatory authority)
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- Address;
- Telephone and facsimile number;
- Information about Enterprise Registration
Certificate (e.g. number, date and place of issuance, issuing authority);
- Legal representative’s name and title.
III. AGREEMENT CONTENTS
1. Statement of purposes
This section describes an arrangement
between the competent regulatory body and the investor or project company on
rights and obligations of each Contracting Party to implementation of
regulations set forth in the project agreement, regulations of the Decree No.
63/2018/ND-CP and other relevant laws.
2. Definition
This section contains definition and
abbreviation (if any) of terminologies used in the project agreement in
compliance with existing laws and within the specific context of this
agreement.
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This section is to make an index of
documents and materials belonging to a set of required documents related to
the agreement and order of priority of them, including the followings:
1. Body text;
2. Appendices (if any);
3. Contract negotiation minutes;
4. Decision on approval of investor
selection results;
5. Written statement of agreement between
parties on contractual terms and conditions that is made according to
instructions given in this Appendix, maybe including general and specific
conditions in the agreement;
6. Bid envelope, bid proposal and other
documents providing explanatory notes on bid envelope, bid proposal of the
bid-winning contractor;
7. Invitation for bid, request documentation
and other documents stating amendments and supplements to the invitation for
bid and request documentation;
8. Other related documents.
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The language of agreement is Vietnamese.
If there is a foreign party to the agreement, the language of agreement must
be Vietnamese and the other language may be negotiated by Contracting
Parties. If an agreement is signed using two languages, Contracting Parties
will need to negotiate about the language used during contractual
transactions and order of priority of languages used in case of contractual
disputes.
5. Project objectives and size
This section aims to describe objectives
and size of a project, including designed capacity, constituents,
construction package, equipment and activities of the project.
6. Project site and used land area
This section aims to inform the project
site, estimated area of land used for project and other facility development
(if any).
7. Engineering, technological and quality
requirements and standards of a project, product or service
This section contains the followings:
1. Engineering and technological
solutions; standards and indicators used for assessing whether the project
technically meets quality requirements of the project and its products or
services meet expected quality standards (Further details may be given in
an Annex to the project agreement);
2. Procedures, documentation
requirements, rights and obligations of each Contracting Party in relation to
this matter.
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This section aims to summarize the
project financing plan (further details about this may be given in Annexes
to the project agreement where necessary), including:
1. Total investment;
2. Financing sources:
a) Owner's equity;
b) Invested capital;
c) State-contributed capital (if any) and
financial aid for auxiliary construction works, compensation, support and
resettlement activities (if any).
3. Capital mobilization methods:
a) State contributed capital (if any) and
financial aid for auxiliary construction works, compensation, support and
resettlement activities (if any), stipulated in clause 1 of Article 11 in the
Decree No. 63/2018/ND-CP:
- Total fund;
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- Payment details.
b) Owner's equity:
- Total equity;
- Disbursement schedule.
c) Loan capital (e.g. commercial loans,
soft loans, foreign loans and others):
- Total capital (indexed by loan types);
- Loan term, maturity and grace period
(indexed by loan types);
- Loan costs, including: Interest rates
specific to loans, lending interest average and other necessary costs
associated with capital mobilization under laws (e.g. guarantee, commitment,
insurance and brokerage costs);
- Borrowed currency and exchange rates
for payments;
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- Disbursement schedule (indexed by loan
types);
- Plans for repayment of loans (indexed
by loan types).
4. Financial incentive for implementation
of the project financing plan (if any).
5. Investor’s return on equity.
6. Investor’s plans to recover
investments and gain profits:
a) Legitimate revenues;
b) Service prices and charges (to be
clarified more at Section 15 of this Appendix);
c) As for a PPP project developed and
implemented under a BTL agreement, the BTL agreement must specify financing
sources and state capital used for paying the investor:
- Public investment capital;
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- Revenues earned from provision of
public services.
9. Project company
1. With respect to group-C projects,
investors may issue decisions on establishment of their project companies or
directly carry out their projects, but must manage and keep separate account
of investment capital and project-related activities.
2. If the chartered capital of a project
company is lower than capital invested in the owner’s equity by an investor,
Contracting Parties shall agree on the time frame of increase in the
chartered capital to ensure such time frame is conformable to the schedule of
implementation of the project, the Decree No. 63/2018/ND-CP and laws on
enterprises.
10. Compensation, support and
resettlement; requirements for use of land and land-attached facilities
This section aims to provide the
following information:
1. Timeline, deadline or duration of land
handover agreed upon in detail between Contracting Parties provided that
these requirements are conforming to the schedule of implementation of the
project;
2. Obligations of competent regulatory
bodies to cooperate with provincial-level People’s Committees in funding and
carrying out site clearance activities, and completing land handover
procedures for implementation of the project;
3. Obligations of the investor and
project company to ensure provision of adequate funds for payment of costs of
compensation, support and resettlement activities (applicable to the case in
which the investor and project company make voluntary advance payments);
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5. Requirements for access to
infrastructure and auxiliary facilities necessary for construction, operation
and management of the project (if any);
6. Regulations on excavation and disposal
of fossilized objects, antiques, architectural structures or other items
found in the project site, rights and obligations of the investor/project
company to these items;
7. Other rights and obligations of the
competent regulatory body and the investor/project company agreed upon in
detail between Contracting Parties in conformance to laws on land,
construction, the Decree No. 63/2018/ND-CP, this Circular and other related
legislative documents;
8. Responsibilities of each Contracting
Party in case of any breach of committed obligations specified in this
section.
11. Duration and deadline for completion
of the project
1. This section aims to specify duration
and deadline for completion of the project, including:
- Deadline and duration for preparations
made before construction, compensation, support and resettlement activities
(if any);
- Ground-breaking time and duration of
implementation of specific works;
- Time of completion of project
(enclosing appendices elaborating on time, duration and deadline for
completion of each work and sample reports of the investor/project company on
construction progress for the purposes of ensuring that the competent
regulatory authority can supervise and inspect the construction progress from
the project commencement to operation phase). (Contracting Parties may
negotiate about the time, duration or deadline for implementation of specific
works, and then adding any agreement on these matters to the agreement to
make them binding upon Contracting Parties.
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3. This section is meant to describe
rights and obligations of each Contracting Party and actions to be taken in
case of each Contracting Party’s breach of any contractual obligations
specified in this section, including intentional addition or suspension of
works to be completely done and compensation responsibilities of the
Contracting Party at fault.
12. Design, construction, inspection,
supervision, management of quality, commissioning, acceptance testing and
settlement of financial obligations
1. This section aims to describe rights
and obligations of the Contracting Parties for design and construction in
accordance with provisions laid down in the Decree No. 63/2018/ND-CP, laws on
construction, specialized laws and specific arrangements between Contracting
Parties, including:
a) Selecting contractors involved in
design and construction in accordance with the Decree No. 63/2018/ND-CP and
bidding laws;
b) Formulating, evaluating and approving
design schemes according to regulations laid down in the Decree No.
63/2018/ND-CP and related laws;
c) Doing construction work in conformance
to engineering and technological requirements prescribed in Section 7;
d) Carrying out construction quality
supervision, control and management as well as project commissioning.
2. This section also aims to clarify
procedures for audit and final settlement of investment capital before
project completion and operation in accordance with regulations laid down in
the Decree No. 63/2018/ND-CP and other related laws.
13. Inspection, testing, maintenance,
operation, commercial use, operation, exploitation of the contractual project
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1. Requirements, standards and indicators
for assessment of quality of the project in terms of operation, commercial
use, operation and exploitation of the project which are used for assessing
whether the project meets quality requirements of the project, and its
products or services meet expected quality standards (Further details may
be given in an Annex to the project agreement where necessary);
2. Rights and obligations of each
Contracting Party for satisfaction of requirements set out in clause 1 of
this Section, including:
a) Rights and obligations of Contracting
Parties for implementation of regulations on project inspection and testing
(i.e. project design, testing, construction quality inspection and equipment
inspection) which conforms to regulations of laws and specific agreements
between the Contracting Parties;
b) Obligations of the project company to
purchase insurance and warranty for the project in accordance with
regulations of relevant laws and specific agreements between the Contracting
Parties;
c) Rights and obligations of the project
company to operate and take care of the project during the period of its
operation, commercial use, exploitation and ongoing normal operation, and to
ensure continuous supply of goods and services. Conditions and solutions
recommended in case of temporary suspension of supply of goods or services
due to technical emergencies, force majeure events and other unexpected events
in accordance with regulations set forth in the Decree No. 63/2018/ND-CP,
this Circular and specific commitments between the Contracting Parties;
d) Rights and obligations of the
competent regulatory authority to inspection, supervision and cooperation with
the project company in implementation of obligations specified in this
Section.
14. Safety and environmental protection
clause
This section contains the followings:
1. Safety measures to be applied during
the project implementation period; safety and environmental protection
requirements and standards clarified in the approved environmental impact
evaluation report of the project and conforming to regulations of relevant
laws (Further details about this may be provided in the Appendix to the
project agreement where necessary);
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15. Demand forecast, prices and costs of
goods and services
This section contains the followings:
1. Forecasting project and service
demands during the useful life of the project, regulating resolution
principles and responsibilities of Contracting Parties in case of the real
flow of users of the project that fails to meet the anticipating number of
users.
2. Prices and costs of goods, services,
schedule of increase in prices or costs of goods, services, receipts,
requirements and procedures for adjustment in prices, costs, notification of
adjustment in prices and costs in accordance with regulations of the Decree
No. 63/2018/ND-CP, laws on prices, costs and other relevant laws.
16. State contributed capital
This section aims to delineate amount,
ratio, source of funding, schedule, principles, conditions and documentation
of payment of state capital contributed to the project in compliance with
regulations of the Decree No. 63/2018/ND-CP and the Ministry of Finance’s
Circular providing instructions.
17. Funding for payments to the investor
(applicable to BTL and BLT agreement)
This section aims to delineate amount,
ratio, source of funding, schedule, principles, conditions and documentation
of payment to the investor or the project company providing services in
compliance with regulations of the Decree No. 63/2018/ND-CP and the Ministry
of Finance’s Circular providing instructions.
18. Management of implementation of the
project agreement
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1. Form and organizational structure of
management of implementation of the project by the competent regulatory
authority, the investor and the project company over specific stages;
approaches to cooperation among the competent regulatory authority, the
investor and the project company during the project implementation period in
accordance with regulations of the Decree No. 63/2018/ND-CP and relevant
laws.
2. Method of supervision of
implementation of the project agreement by the investor or the project
company based on demands related to project quality and services provided by
the project (including method of supervision of revenues of the investor and
the project company).
19. Project transfer
This section sets out regulations on
transfer of the project, specifically including:
1. Engineering condition, operational
state and quality of the project by the transfer date (the competent regulatory
authority can, of their own accord, or hire an independent consulting body
to, evaluate the quality of the project before transfer);
2. List of work items, machines,
equipment, property and all of documents and records related to surveying,
design, construction, operation and commercial use of the project;
3. Obligations of each Contracting Party
to maintenance and repair of defects (if any) for ongoing normal operation of
the project after transfer;
4. Obligations of the investor/the
project company to technology transfer, managerial skill and engineering
training for operation of the project after transfer;
5. Project transfer procedures and
processes;
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20. Contract performance guarantee
This section aims to provide information
about amount, form, duration or deadline for submission of the performance
bond, and cases in which the investor shall not be entitled to refund of that
performance bond in accordance with the Decree No. 63/2018/ND-CP and bidding
laws.
21. Agreement amendment, supplementation
and modification clause
This section aims to provide the
following information:
1. Cases and requirements for
modification of terms and conditions of the project agreement in accordance
with regulations laid down in the Decree No. 63/2018/ND-CP and other relevant
laws (example: Changes in the scale, engineering standards, total
investment; changes in sources of revenue, prices, costs, goods and services;
uptime; changes in force majeure events and others agreed upon between
Contracting Parties).
2. Procedures and processes for modifying
and supplementing the project agreement to ensure accordance with the Decree
No. 63/2018/ND-CP.
22. The lessor’s right of receipt of the
project
This section aims to describe
requirements and procedures for receipt of the project by the lessor that are
negotiated in accordance with terms and conditions of the lease and
regulations of the Decree No. 63/2018/ND-CP.
23. Disposition of contractual rights and
obligations
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2. This section also elaborates on
requirements, procedures and processes for establishing, effecting and
guaranteeing implementation of the lease, the guarantee agreement and other
rights of receipt of the project under the Decree No. 63/2018/ND-CP.
24. Breach of, default on contractual
obligations and disciplinary actions
This section aims to include the
followings:
1. Breach of or default on contractual
obligations of each Contracting Party under the project agreement.
2. Disciplinary actions against specific
violations or default on contractual obligations (e.g. remedial measures,
suspension of implementation of the project, compensation and early
termination of the project agreement, etc.).
3. Rights and obligations of Contracting
Parties to dealing with any violation of or default on contractual
obligations.
25. Duration of implementation and
termination of the project agreement
This section aims to include the
followings:
1. Duration of implementation of the
project agreement and requirements for extension or shortening of the
duration of the project or the project agreement in accordance with the
Decree No. 63/2018/ND-CP and specific agreements between Contracting Parties;
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3. Rights and obligations of each
Contracting Parties upon termination of the project agreement on the
agreed-upon deadline or period;
4. Rights and obligations of each
Contracting Party in case of early termination of the agreement; method and
duration of payment, amount and method for computation of compensation amount
paid in case of early termination by each Party;
5. Procedures and processes for
finalization of the project agreement in case of termination taking place as
prescribed in this Section.
26. Legislation governing relationship
between the project agreement and other related contracts
This section aims to describe Laws
covering connection between the project agreement and other contracts in
relation to implementation of the project in compliance with regulations of
the Decree No. 63/2018/ND-CP and other related laws.
27. Resolution of disputes
This section aims to describe the
mechanism for settlement of disputes between Contracting Parties and disputes
between the investor or the project company and involved parties under the
Law on Investment, the Decree No. 63/2018/ND-CP and other related legislative
documents.
28. Force majeure events and resolution
principles
1. This section aims to list out force
majeure events and principles of determination of force majeure situations in
accordance with the Civil Code and agreements between Contracting Parties.
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29. Investment incentive and guarantee
(if any)
This section aims to describe investment
incentive and guarantee as follows:
1. Guarantee for investment in accordance
with the Law on Investment and the Decree No. 63/2018/ND-CP;
2. Commitment to provide Government’s
guarantee (if any) in accordance with regulations laid down in Article 61 of
the Decree No. 63/2018/ND-CP;
3. Support or other commitment of
competent regulatory authority for the investor or the project company under
specific agreements between Contracting Parties (if any).
30. Entry into force
This section aims to describe information
related to effect of the project agreement, specifically including:
1. Time of start and end of effect of the
project agreement;
2. Signing time and location, number of
copies and legal value of copies of the project agreement.
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This section aims to provide other
contents that Contracting Parties agree to include in the project agreement
in terms of scope, scale, characteristics and requirements of implementation
of the project in accordance with legislative regulations.
(E.g. regulations about the reporting
regime, information confidentiality and other matters).
IV. Appendices and attached documents
Appendices and enclosed documents shall be
negotiated by Contracting Parties in accordance with types of agreement, scope,
scale, characteristics and requirements of the project, specifically including:
- Details about standards and requirements
concerning implementation of the project (including engineering and
technological standards and requirements; requirements concerning operation,
commercial use and exploitation of the project; safety and environmental
protection requirements, etc.);
- Details about the project financing plan;
- Details about the project implementation
schedule.