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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.:
09/2021/TT-BKHDT
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Hanoi, November
16, 2021
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CIRCULAR
PROVIDING
GUIDELINES FOR SELECTION OF INVESTORS FOR EXECUTING PUBLIC-PRIVATE PARTNERSHIP
PROJECTS AND INVESTMENT PROJECTS INVOLVING LAND USE
Pursuant to the Law on Bidding dated November
26, 2013;
Pursuant to the Law on Investment dated June 17,
2020;
Pursuant to the Law on Public-Private
Partnership Investment dated June 18, 2020;
Pursuant to the Government’s Decree No.
31/2021/ND-CP dated March 26, 2021 providing guidelines for implementation of
the Law on investment;
Pursuant to the Government’s Decree No. 35/2021/ND-CP
dated March 29, 2021 providing guidelines for implementation of the Law on
public-private partnership investment;
Pursuant to the Government’s Decree No.
28/2021/ND-CP dated March 26, 2021 prescribing financial management mechanism
of public-private partnership projects;
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Pursuant to the Government’s Decree No.
86/2017/ND-CP dated July 25, 2017 defining the functions, tasks, powers and
organizational structure of the Ministry of Planning and Investment;
At the request of the Director General of the
Public Procurement Agency;
The Minister of Planning and Investment
promulgates a Circular providing guidelines for selection of investors
executing public-private partnership (PPP) projects
and investment projects involving land use.
Article 1. Scope
This Circular elaborates and provides guidelines
for the Government’s Decree No. 35/2021/ND-CP dated March 29, 2021 providing
guidelines for implementation of the Law on public-private partnership
investment (hereinafter referred to as “Decree No. 35/2021/ND-CP”) and the Government’s
Decree No. 25/2020/ND-CP dated February 28, 2020 elaborating on some Articles
of the Law on Bidding regarding investor selection as amended in Article 89 of
the Decree No. 35/2021/ND-CP and Article 108 of the Government’s Decree No.
31/2021/ND-CP dated March 26, 2021 providing guidelines for implementation of the
Law on investment (hereinafter referred to as “Decree No. 25/2020/ND-CP”),
including:
1. Regulations on
preparation of prequalification documents, negotiation documents and bidding
documents for PPP projects.
2. Regulations on
formulation of preliminary capacity and experience
requirements, bidding documents, and request for proposals for investment
projects involving land use.
3. Other contents
concerning the execution of investment projects involving land use.
Article 2. Regulated entities
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Article 3. Preparation of
prequalification documents, negotiation documents and bidding documents for PPP
projects
1. Prequalification
documents shall be made using the form in Appendix I enclosed herewith.
2. Negotiation
documents shall be made using the form in Appendix II enclosed herewith.
3. Bidding
documents for projects employing prequalification procedures shall be made
using the form in Appendix III enclosed herewith.
4. Bidding
documents for projects executed without employing prequalification procedures
and those employing competitive negotiation as prescribed in Clause 1 Article
38 of the Law on Public-Private Partnership Investment (hereinafter referred to
as “PPP Law”) shall be made using the form in Appendix IV enclosed herewith.
5. Bidding
documents for projects executed employing competitive negotiation as prescribed
in Clauses 2 and 3 Article 38 of the PPP Law shall be made using the form in
Appendix V enclosed herewith.
6. With regard to
projects executed employing direct contracting approach as prescribed in Point
a Clause 1 Article 39 of the PPP Law, bidding documents shall be made using the
form in Appendix IV enclosed herewith which shall be
modified but must have contents conformable with regulations of the PPP Law,
the Decree No. 35/2021/ND-CP and relevant law provisions. Bidding documents shall not include contents
concerning comparison and ranking of investors.
Article 4. Formulation of
preliminary capacity and experience requirements, bidding documents, and
request for proposals for investment projects involving land use
1. Invitation for
Expression of Interest (EOI) and preliminary capacity and
experience requirements shall be made using the form in Appendix VI
enclosed herewith. Preliminary
capacity and experience requirements shall only include the
contents serving the purpose of selecting prequalified investors; do not
include any conditions that limit the participation of investors or give
advantage for one or some investors resulting in unfair competition.
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3. With regard to projects
executed employing direct contracting approach as prescribed in Clause 3
Article 10 of the Decree No. 25/2020/ND-CP, the request for proposals shall be
made using the form in Appendix VII enclosed herewith which shall be modified
but must have contents conformable with the Law on
bidding, the Decree No. 25/2020/ND-CP, Article 108 of the Government’s Decree
No. 31/2021/ND-CP dated March 26, 2021 providing guidelines for implementation
of the Law on investment (hereinafter referred to as “Decree No. 31/2021/ND-CP”),
Article 89 of the Decree No. 35/2021/ND-CP and relevant law provisions. The request for proposals shall not include
contents concerning comparison and ranking of investors.
Article 5. Rules for use and
modification of document forms
1. In the forms
provided in Appendixes I, II, III, IV, V, VI and VII enclosed herewith,
italicized text provides instructions and illustrative provisions and shall be
specified in detail according to scale, nature, field and specific conditions
(if any) of each project.
2. In addition to
criteria for evaluation of capacity and experience of investors laid down in
Appendixes I, II, IV and VII enclosed herewith, other criteria may be adopted
but must:
a) be conformable with the scale, nature, field and
specific conditions (if any) of each project;
b) not be contrary to law provisions; not limit the
participation of investors or give advantage for one or some investors
resulting in unfair competition.
3. In case
additional criteria for evaluation are adopted as prescribed in Clause 2 of
this Article, the request for approval of prequalification documents,
negotiation documents, bidding documents or request for proposals must provide
detailed explanations and reasons for adopting such additional criteria for
competent authorities for consideration.
Article 6. Execution of
investment projects involving land use
1. Investment
projects involving land use prescribed in Clause 1 Article 11 of the Decree No.
25/2020/ND-CP shall be determined according to the following provisions:
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b) Commercial housing shall be determined according
to Clause 4 Article 3 of the Housing Law No. 65/2014/QH13 dated November 25,
2014;
c) Headquarters and office building projects
include buildings providing working offices and accommodations as defined in
Point h Clause 2 Section I of Appendix I enclosed with the Government’s Decree
No. 06/2021/ND-CP dated January 26, 2021 prescribing quality management,
execution and maintenance of construction works (hereinafter referred to as
“Decree No. 06/2021/ND-CP”);
d) Commercial facilities include shopping malls,
supermarkets, shops, restaurants, food and beverage stores as defined in Point
e Clause 2 Section I of Appendix I enclosed with the Decree No. 06/2021/ND-CP;
dd) Service facilities include hotels, guest
houses, motels, resorts, residential villas, apartments and other accommodation
facilities as defined in Point g Clause 2 Section I of Appendix I enclosed with
the Decree No. 06/2021/ND-CP.
2. Preliminary
capacity and experience requirements and announcement of list of investment
projects involving land use with regard to projects of which investment
guidelines have to be approved as prescribed in Point a Clause 1 Article 12 of
the Decree No. 25/2020/ND-CP shall be determined and performed as follows:
a) With regard to projects of which investment
guidelines are subject to the Prime Minister’s approval:
Provincial People's Committees shall take charge of
organizing bidding in accordance with Clause 8 Article 32 of the Decree No.
31/2021/ND-CP. Based on the decision to give
approval for investment guidelines of the project, the Provincial People's
Committee shall assign the Provincial Department of Planning and Investment to
play the leading role and cooperate with relevant authorities to set out
preliminary capacity and experience requirements, and submit them to the
Provincial People's Committee for approval before the list of projects is
announced. With regard to a project located in
an economic zone, the Provincial People's Committee shall assign the management
board of that economic zone to set out and approve preliminary capacity and
experience requirements before the list of projects is announced.
b) With regard to projects of which investment
guidelines are subject to approval of Provincial People's Committees:
Provincial Departments of Planning and Investment
or economic zone management boards (for projects located in economic zones)
shall take charge of organizing bidding in accordance with Clause 6 Article 33
of the Decree No. 31/2021/ND-CP. Based on the
decision to give approval for investment guidelines of the project, the
Provincial Department of Planning and Investment shall play the leading role
and cooperate with relevant authorities to set out preliminary capacity and
experience requirements, and submit them to the Provincial People's Committee
for approval before the list of projects is announced.
With regard to a project located in an economic zone, the management
board of that economic zone shall set out and approve preliminary capacity and
experience requirements before the list of projects is announced.
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In case there is one investor meeting preliminary capacity
and experience requirements, that investor shall submit application for
investor approval in accordance with Clause 3 Article 29 of the Law on
investment and Point a Clause 2 Article 30 of the Decree No. 31/2021/ND-CP
without determining the minimum payment to state budget as prescribed in Clause
2 Article 4 of this Circular.
4. The project
enterprise established by the successful investor to execute the project as
prescribed in Clause 5 Article 57 of the Decree No. 25/2020/ND-CP shall inherit
rights and obligations to execute the investment project as committed by the
successful investor in the bid, and be required to meet relevant requirements
set out in laws on enterprise, investment, construction, land, residential
housing and real estate business, and relevant laws (if any).
Article 7. Transition
1. With regard to
investment projects involving land use:
a) In case bidding documents and requests for
proposals have been issued according to the Government’s Decree No.
30/2015/ND-CP dated March 17, 2015 on elaboration of the Law on bidding
regarding investor selection (hereinafter referred to as “Decree No.
30/2015/ND-CP”) and the Circular No. 16/2016/TT-BKHDT dated December 16, 2016
of the Minister of Planning and Investment providing guidelines for
prequalification documents and request for proposals for selection of investors
executing investment projects involving land use (hereinafter referred to as
“Circular No. 16/2016/TT-BKHDT”) but investor selection results have yet to be achieved by the effective date of this Circular, such
issued bidding documents and requests for proposals shall continue being used
as the basis for evaluation of received bids and proposals.
b) In case prequalification documents have been
issued before the effective date of the Decree No. 25/2020/ND-CP, the investor
selection shall be carried out in accordance with Clause 3 Article 90 of the
Decree No. 25/2020/ND-CP. Bidding documents
and requests for proposals shall be prepared in accordance with the Decree No.
30/2015/ND-CP, the Circular providing guidelines for implementation of the
Decree No. 30/2015/ND-CP and laws on land, residential housing, real estate
business, investment and construction in force at the time of approval of such
bidding documents and requests for proposals.
c) In case the list of projects has been published
on the national bidding system in accordance with the Decree No. 25/2020/ND-CP
and the Circular No. 06/2020/TT-BKHDT and there are two or more investors
meeting preliminary capacity and experience requirements but bidding documents
have yet to be issued, they must be prepared in accordance with the Decree No.
25/2020/ND-CP dated February 28, 2020 (which comes into force from April 20,
2020 to March 26, 2021), the Circular No. 06/2020/TT-BKHDT and regulations of
laws on land, residential housing, real estate business, investment and
construction in force at the time of approval of such bidding documents.
d) In case bidding documents and requests for
proposals have been issued in accordance with the Decree No. 25/2020/ND-CP and
the Circular No. 06/2020/TT-BKHDT but investor selection results have yet to be
achieved by the effective date of this Circular, such issued bidding documents
and requests for proposals shall continue being used as the basis for
evaluation of received bids and proposals.
dd) Project contracts which have been concluded in
accordance with law provisions in force before the effective date of this
Circular shall remain valid. In case the modification of a project has been
approved, the project shall be modified in accordance with regulations of the
Law on investment before the project contract is modified.
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Article 8. Implementation
1. Form A.I.5a and
Form A.II.5a enclosed with the Circular No. 03/2021/TT-BKHDT dated April 03,
2021 of the Minister of Planning and Investment prescribing templates of
documents and reports related to investment activities in Vietnam, outward
investment and investment promotion are provided for in Appendix IX of this
Circular.
2. Before specific
provisions on projects having to undergo bidding according to specialized laws
and law on private sector involvement which are promulgated by Ministries,
ministerial agencies or Governmental agencies within their jurisdiction or by
the Prime Minister at the request of such agencies as prescribed in Clause 3
Article 16 of the Decree No. 25/2020/ND-CP come into force, bidding documents
shall be prepared using the forms in Appendixes VI and VII enclosed herewith
which shall be modified but must have contents conformable with the Law on
bidding, specialized law and law on private sector involvement so as to ensure
competitiveness, fairness, transparency and economic efficiency objectives.
3. List of
investment projects involving land use and list of projects having to undergo
bidding as prescribed by specialized laws and law on private sector involvement
shall be published on the national bidding system within 07 working days from
the day on which the list is approved (regarding projects of which approval for
investment guidelines is not compulsory in accordance with the Law on
investment) or from the day on which preliminary capacity and experience
requirements are approved (regarding projects of which investment guidelines
must be approved in accordance with the Law on investment).
4. Publishing of
information on bidding and investor selection on the national bidding system
shall comply with relevant provisions of Articles 7, 8, 9, 10 and 13 of the
Circular No. 06/2020/TT-BKHDT until new guidelines are given by the Ministry of
Planning and Investment.
5. This Circular
comes into force from January 01, 2022 and supersedes the Circular No.
06/2020/TT-BKHDT dated September 18, 2020 of the Minister of Planning and
Investment providing guidelines for implementation of the Decree No. 25/2020/ND-CP,
except the provisions of Clause 4 of this Article.
6. Ministries,
ministerial agencies, Governmental agencies, other central government agencies,
Provincial People’s Committees, and relevant organizations and individuals are
responsible for the implementation of this Circular. Difficulties
that arise during the implementation of this Circular should be reported to the
Ministry of Planning and Investment for consideration./.
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