|
THE MINISTRY
OF INDUSTRY AND TRADE
-------
|
SOCIALIST
REPUBLIC OF VIETNAM
Independence – Freedom - Happiness
---------------
|
|
No.
23/2015/TT-BCT
|
Hanoi, July
13, 2015
|
CIRCULAR
SEQUENCE AND PROCEDURES FOR FINANCING THERMO-POWER PLANT
PROJECT IN THE FORM OF BOT CONTRACT
Pursuant to the Government’s Decree No.
95/2012/NĐ-CP dated November 12, 2012 defining the functions, tasks, entitlements
and organizational structure of the Ministry of Industry and Trade;
Pursuant to the Government’s Decree No.
15/2015/NĐ-CP dated February 14, 2015 on public investment;
At the request of Director General of General
Department of Energy,
The Ministry of Industry and Trade
promulgates the Circular regulating sequence, procedures for financing
thermo-power plant project in the form of BOT contract.
Chapter I
GENERAL PROVISIONS
...
...
...
Bạn phải
đăng nhập hoặc
đăng ký Thành Viên
TVPL Pro để sử dụng được đầy đủ các tiện ích gia tăng liên quan đến nội dung TCVN.
Mọi chi tiết xin liên hệ:
ĐT: (028) 3930 3279 DĐ: 0906 22 99 66
1. This Circular regulates sequence and
procedures for financing thermo-power plant project in the form of BOT contract
(hereinafter referred to as the BOT project) within the territory of Vietnam.
2. This Circular applies to organizations and
individuals involved in activities in connection with the BOT project.
Article 2. Interpretation of
terms
1. BOT contract means the contract signed
between the Ministry of Industry and Trade and the permitted BOT investor for
the construction of a thermo-power plant within the territory of Vietnam; after
the construction of the plant is completed, the investor shall be entitled to
operate the plant for a certain period of time; when the period expires, the
investor shall transfer the plant to the Ministry of Industry and Trade.
2. The BOT project means the thermo-power
plant project financed in the form of BOT contract.
3. BOT investor means organizations,
individuals that express their interest in the contribution of capital for
development of thermo-power plant project in the form of BOT.
4. Permitted BOT investor means BOT
investor assigned to develop the BOT project by competent state agencies.
5. BOT enterprise means the enterprise
established by the permitted BOT investor for the implementation of the BOT
project.
6. The EPC contractor means the
contractor who performs the bid package for engineering, procurement of
equipment and materials and installation of the BOT project.
...
...
...
Bạn phải
đăng nhập hoặc
đăng ký Thành Viên
TVPL Pro để sử dụng được đầy đủ các tiện ích gia tăng liên quan đến nội dung TCVN.
Mọi chi tiết xin liên hệ:
ĐT: (028) 3930 3279 DĐ: 0906 22 99 66
8. Memorandum of Understanding for the BOT
project (hereinafter referred to as MOU) means the written agreement signed
between permitted BOT investor and the Ministry of Industry and Trade.
9. Feasibility study report (hereinafter
referred to as FS) means documents that describe information of research on
necessities, feasibility and efficiency of the BOT project.
10. Principal Agreement (hereinafter
referred to as PA) means the written agreement signed between General
Department of Energy and permitted BOT investor.
11. Power Purchase Agreement (PPA) means
the contract signed between the BOT enterprise and Vietnam Electricity.
12. Land Lease Agreement (LLA) means the
contract signed between the BOT enterprise and competent agencies in the
locality where the BOT project is situated.
13. Coal Supply Agreement (CSA) means the
contract signed between the BOT enterprise and coal supplier.
14. Coal Transport Agreement (CTA) means
the contract signed between the BOT enterprise and coal transporter.
15. Gas Supply Agreement (CSA) means the
contract signed between the BOT enterprise and gas supplier.
Chapter II
...
...
...
Bạn phải
đăng nhập hoặc
đăng ký Thành Viên
TVPL Pro để sử dụng được đầy đủ các tiện ích gia tăng liên quan đến nội dung TCVN.
Mọi chi tiết xin liên hệ:
ĐT: (028) 3930 3279 DĐ: 0906 22 99 66
Section 1: Selection of
permitted BOT investor
Article 3. Selection of permitted BOT investor is instructed in
accordance with the Law on Bidding
Article 4. International competitive bidding applies to:
1. Projects within the list of projects under
the national electricity planning and stipulated by the Prime Minister;
2. For projects within the list of projects
under the national electricity planning with no investor identified that
attract participation of from two BOT investor and over, the Prime Minister
shall decide manner of selection of permitted BOT investor.
Article 5. Appointment of permitted BOT investors
1. Projects within the list of projects under
the national electricity planning and the permitted BOT investor thereto appointed
by the Prime Minister;
2. Projects within the list of projects under
the national electricity planning with participation of only one BOT investor
and policies on selection of the permitted BOT investor thereto approved by the
Prime Minister;
3. Projects proposed by BOT investor outside the
list of projects under the national electricity planning and approved by the
Prime Minister;
...
...
...
Bạn phải
đăng nhập hoặc
đăng ký Thành Viên
TVPL Pro để sử dụng được đầy đủ các tiện ích gia tăng liên quan đến nội dung TCVN.
Mọi chi tiết xin liên hệ:
ĐT: (028) 3930 3279 DĐ: 0906 22 99 66
Article 6. MOU and project
development plan
1. Within 20 working days since the Prime
Minister issues a written approval to the permitted BOT investor for
development of the BOT project, General Department of Energy shall send a draft
MOU and instructions to the permitted BOT investor in preparation for
negotiation and execution of MOU. Content of MOU includes:
a) Legal foundations;
b) General description of the BOT project;
c) Roles and responsibilities of the permitted
BOT investor;
d) Roles and responsibilities of the Ministry of
Industry and Trade;
dd) General schedule for development of the BOT
project;
e) Validity period of MOU;
g) Responsibilities of the permitted BOT
investor for expenses for project development, making payment for the
formulation and assessment of FS, employment of legal advisor to support
Vietnamese party during the negotiation and development of the project;
...
...
...
Bạn phải
đăng nhập hoặc
đăng ký Thành Viên
TVPL Pro để sử dụng được đầy đủ các tiện ích gia tăng liên quan đến nội dung TCVN.
Mọi chi tiết xin liên hệ:
ĐT: (028) 3930 3279 DĐ: 0906 22 99 66
3. Within 15 working days since receipt of formal
comments from the permitted BOT investor, General Department of Energy shall
conduct negotiation on MOU. Process of negotiation on MOU shall not exceed 30
days.
After agreement on MOU is finalized, General
Department of Energy shall make the submission to the Minister of Industry and
Trade for endorsement to move forward to the MOU signing ceremony.
4. MOU signing is carried out between
representatives of the Ministry of Industry and Trade and the investor.
5. Within 30 days since MOU is signed, the permitted
BOT investor must prepare the detailed project development plan and submit it
to General Department of Energy for consideration and approval.
6. Within 15 working days since receipt of
detailed plan from the permitted BOT investor, General Department of Energy
shall issue its comments in writing.
7. Contents of the detailed project development
plan include:
a) Formulate and approve the planning for
construction of electricity center (if any): dates for submission and approval
for the planning;
b) Formulate and approve FS including date for
submission and approval for FS;
c) BOT contract negotiation plan and relevant
documents including date for PA negotiation; date for PA signing; expected date
for first-round negotiation; expected date for completion of first-round
negotiation; expected date for second-round negotiation; expected date for
completion of second-round negotiation; schedule for negotiation on relevant
documents: PPA, LLA, EPC contract, fuel supply contract; date for investment
agreement signing; date for submission of application for issuance of
Investment registration certificate; date for signing documents of BOT
contract;
...
...
...
Bạn phải
đăng nhập hoặc
đăng ký Thành Viên
TVPL Pro để sử dụng được đầy đủ các tiện ích gia tăng liên quan đến nội dung TCVN.
Mọi chi tiết xin liên hệ:
ĐT: (028) 3930 3279 DĐ: 0906 22 99 66
dd) Groundbreaking and construction: date for
official commencement; date for commercial operation of each assembly; date for
commercial operation of the entire plant.
Article 7. Formulate,
appraise and approve the planning for construction of electricity center
1. Formulation, appraisal and approval of the
planning for construction of electricity center (hereinafter referred to as the
electricity center planning) is prescribed in the Ministry of Industry and
Trade’s Circular No. 43/2014/TT-BCT dated November 19, 2014 regulating content,
sequence and procedures for formulation, appraisal and approval for the
electricity center planning.
2. Expenses for the formulation, appraisal of
the electricity center planning are allocated from supportive capital sources
in preparation for project investment.
Article 8. Formulation,
appraisal and approval for FS
1. Within 12 months since the signing of MOU,
the permitted BOT investor must submit FS documentation to General Department
of Energy accompanied by comments from relevant ministries, sectors and from
People’s committees of central-affiliated cities and provinces where the
project is situated.
FS documentation must be established by an
electricity consultant who was granted the permit for consultancy on
thermo-power plants, having experience in the formulation of FS for
thermo-power plants of the same scale and over.
2. Contents of FS documentation are prescribed
in Article 25 of the Government’s Decree No. 15/2015/NĐ-CP dated February 14, 2015
on investment in the form of public-private partnerships and relevant
legislative documents.
3. Sequence of appraisal of FS documentation is
prescribed in Article 26 of the Government’s Decree No. 15/2015/NĐ-CP dated
February 14, 2015 on investment in the form of public-private partnerships and
relevant legislative documents.
...
...
...
Bạn phải
đăng nhập hoặc
đăng ký Thành Viên
TVPL Pro để sử dụng được đầy đủ các tiện ích gia tăng liên quan đến nội dung TCVN.
Mọi chi tiết xin liên hệ:
ĐT: (028) 3930 3279 DĐ: 0906 22 99 66
5. Expenses for formulation, appraisal and
examination of FS documentation shall be paid by the permitted BOT investor.
Article 9. Legal advice to
the Ministry of Industry and Trade on negotiation on project documents
1. Within 30 days since the signing of MOU,
General Department of Energy shall propose method of selecting Legal advisor
for competent state agencies and make the submission to the Minister of
Industry and Trade for decision.
2. Responsibilities of Legal advisor:
a) Assist the Ministry of Industry and Trade in
drafting BOT contract and detailed negotiation, Government guarantees
(hereinafter referred to as GGU), Confirmations and Approval by the Ministry of
Industry and Trade (hereinafter referred to as MOIT’s A&C);
b) Complete a set of project contract (including
BOT contract, GGU, A&C, PPA, LLA, and CSA or GSA), ensuring legality,
accuracy and uniformity in information and wording ready for the signing;
c) Other tasks as prescribed in the consultancy
agreement;
3. General Department of Energy shall select
Legal advisor and make the submission to the Minister of Industry and Trade for
approval accompanied by cost estimates for the Legal advisor to assist the
process of negotiation.
4. Expenses for the hire of the Legal Advisor to
assist the Ministry of Industry and Trade in negotiation on project documents
are allocated from state budget. In case state budget sources are not ready,
the Ministry of Industry and Trade and the investor shall be responsible for
conducting negotiation on sources of expenses for the hire of the Legal advisor
to ensure project development progress.
...
...
...
Bạn phải
đăng nhập hoặc
đăng ký Thành Viên
TVPL Pro để sử dụng được đầy đủ các tiện ích gia tăng liên quan đến nội dung TCVN.
Mọi chi tiết xin liên hệ:
ĐT: (028) 3930 3279 DĐ: 0906 22 99 66
1. Within 15 working days since the signing of
MOU, General Department of Energy shall make submission to the Ministry of
Industry and Trade for the establishment of interdisciplinary working group.
2. Components of the interdisciplinary working
group include:
a) Leader and some members of the Ministry of
Industry and Trade;
b) Members of ministries and sectors: Planning
and Investment, Justice, Finance, the State Bank, People’s committees of
central-affiliated cities and provinces where the BOT project is situated,
Vietnam Electricity (EVN), Vietnam National Coal – Mineral Industries Holding
Corporation Limited (Vinacomin) (for projects using domestic coal),
PetroVietnam (PVN) (for project using domestic gas).
3. Main tasks of the interdisciplinary working
group:
a) Finalize plan for negotiation with the
permitted BOT investor;
b) Organize and take part in negotiation on BOT
contract, GGU and MOIT’s A&C;
c) Take part in handling issues arising during
the negotiation.
4. Assignments and working method of
interdisciplinary working group:
...
...
...
Bạn phải
đăng nhập hoặc
đăng ký Thành Viên
TVPL Pro để sử dụng được đầy đủ các tiện ích gia tăng liên quan đến nội dung TCVN.
Mọi chi tiết xin liên hệ:
ĐT: (028) 3930 3279 DĐ: 0906 22 99 66
b) Members as representatives of Ministries,
regulatory bodies and local governments shall be responsible for issues in
connection with the area under their own management and assisting the leader
within functions and duties assigned;
c) The interdisciplinary working group shall
work as holder of several official positions;
5. Expenses for operation:
Expenses for operation of the interdisciplinary
working group are allocated from state budget.
6. Operation time of the interdisciplinary
working group depends on requirements for the implementation of BOT project and
is decided by the Ministry of Industry and Trade.
Article 11. Conducting
negotiation
1. Negotiation on PA, BOT contract, GGU and
MOIT’s A&C shall be carried out when satisfying the following requirements:
a) FS documentation has been approved by the
Ministry of Industry and Trade;
b) The Legal advisor has been selected by the
Ministry of Industry and Trade;
...
...
...
Bạn phải
đăng nhập hoặc
đăng ký Thành Viên
TVPL Pro để sử dụng được đầy đủ các tiện ích gia tăng liên quan đến nội dung TCVN.
Mọi chi tiết xin liên hệ:
ĐT: (028) 3930 3279 DĐ: 0906 22 99 66
2. General Department of Energy shall regulate
negotiation on project documents with the permitted BOT investor as follows:
a) The interdisciplinary working group shall
conduct negotiation on BOT contract, GGU and MOlT’s A&C;
b) EVN shall conduct negotiation on PPA and
written Confirmations and Approval of EVN.
PPA shall be passed after General Department of
Energy has issued written comments on long-term agreement for supply of fuel to
the project and result of selection of EPC contractor.
c) Vinacomin shall conduct negotiation on CSA
and written Confirmations and Approval of Vinacomin (for projects using
domestic coal).
d) PVN shall conduct negotiation on GSA and
written Confirmations and Approval of PVN (for projects using domestic gas).
dd) Any locality where the project is situated
shall conduct negotiation on LLA and written Confirmations and Approval of
local authorities.
EVN, Vinacomin, PVN and localities must agree
about the plan for negotiation with the permitted BOT investor and make the
report to General Department of Energy.
3. The permitted BOT investor shall be
responsible for conducting parallel negotiation on project documents (including
BOT contract, GGT, MOIT’s A&C; PPA; CSA; CTA; GSA and LLA) with relevant
Vietnamese partners to ensure progress of the project.
...
...
...
Bạn phải
đăng nhập hoặc
đăng ký Thành Viên
TVPL Pro để sử dụng được đầy đủ các tiện ích gia tăng liên quan đến nội dung TCVN.
Mọi chi tiết xin liên hệ:
ĐT: (028) 3930 3279 DĐ: 0906 22 99 66
a) Negotiation on PA
When requirements set out in Clause 1 of this
Article are met, within 15 working days, General Department of Energy shall
send a draft PA to the permitted BOT investor.
The draft PA includes basic definitions,
validity period of the contract, general progress of the project, date of
operation as requested, applicable laws, settlement of disputes, risk-sharing
mechanism, tax regime, structure of electricity price, contract for land lease
and supply of fuel, fundamental principles of GGU.
Within 30 days since receipt of the draft PA,
the permitted BOT investor must submit comments on content of the draft to
General Department of Energy.
Negotiation on PA shall be conducted after 15
working days since receipt of comments from the permitted BOT investor.
General Department of Energy and the permitted
BOT investor shall organize the signing of PA after the two parties have
reached agreement on detailed information of PA.
b) Negotiation on BOT contract, GGU and MOIT’s
A&C
The process of negotiation is divided into two
rounds. Each round consists of three sessions and each session lasts for a
maximum of three days.
Each round of negotiation is considered as
completed when all the terms and conditions under the contract are passed
through. Any inconclusive matters shall be brought forward to the next round of
negotiation.
...
...
...
Bạn phải
đăng nhập hoặc
đăng ký Thành Viên
TVPL Pro để sử dụng được đầy đủ các tiện ích gia tăng liên quan đến nội dung TCVN.
Mọi chi tiết xin liên hệ:
ĐT: (028) 3930 3279 DĐ: 0906 22 99 66
Within 60 days since receipt of the draft, the
permitted BOT investor must submit comments on content of the draft BOT
contract, GGU and MOIT’s A&C to General Department of Energy. Negotiation
shall be conducted after 30 days since receipt of comments from the permitted
BOT investor.
At the end of each round of negotiation, the
Ministry of Industry and Trade shall carry out collection of suggestions from
relevant ministries and sectors as foundations for the next round of
negotiation.
The interdisciplinary working group shall
continue negotiation with the permitted BOT investor on suggestions from
ministries and sectors for the completion of the draft BOT contract, GGU and
MOIT’s A&C.
5. After two rounds of negotiation, the Ministry
of Industry and Trade shall make the report to the Prime Minister on
accomplished results and inconclusive matters.
The interdisciplinary working group shall
continue negotiation with the permitted BOT investor under the direction of the
Prime Minister. The negotiation is considered as completed when Vietnamese
partner and the permitted BOT investor have reached agreement on all matters of
project documents.
6. Within ten working days since the negotiation
is completed, the Ministry of Industry and Trade shall make the submission to
the Prime Minister for ratification before the signing of investment agreement
with the permitted BOT investor.
Article 12. Fulfillment of
project documents and signing of investment agreement
1. After BOT contract, GGU and MOIT’s A&C
are agreed by the two parties, the Legal advisor assisting the Ministry of
Industry and Trade shall issue a written confirmation over legality and
accuracy of information and wording made in project documents for the Ministry
of Industry and Trade to sign the investment agreement with the permitted BOT
investor.
2. The permitted BOT must cooperate with
relevant parties in completing the draft, initialing other project documents
such as PPA, CSA (or GSA), CTA, LLA and make the report to the Ministry of
Industry and Trade.
...
...
...
Bạn phải
đăng nhập hoặc
đăng ký Thành Viên
TVPL Pro để sử dụng được đầy đủ các tiện ích gia tăng liên quan đến nội dung TCVN.
Mọi chi tiết xin liên hệ:
ĐT: (028) 3930 3279 DĐ: 0906 22 99 66
Chapter III
ISSUANCE OF INVESTMENT
REGISTRATION CERTIFICATE AND SIGNING OF PROJECT DOCUMENTS
Article 13. Issuance of
investment registration certificate
1. Within 30 days since the signing of
investment agreement, the permitted BOT investor shall submit application to
the Ministry of Planning and Investment for issuance of investment registration
certificate.
2. Documentation, sequence and procedures for
issuance of investment registration certificate are prescribed in Article 40 of
the Government’s Decree No. 15/2015/NĐ-CP dated February 14, 2015 on investment
in the form of public-private partnerships.
3. The permitted BOT investor shall be
responsible for cooperating with relevant parties from Vietnam in giving
explanation of comments at the request of the Ministry of Planning and
Investment.
Article 14. Official
signing of BOT contract and project documents
1. Within 30 days since receipt of investment
registration certificate from the Ministry of Planning and Investment, the
permitted BOT investor must establish the BOT enterprise and fulfill
supplements as specified in the investment registration certificate for the
official signing of project documents.
2. General Department of Energy shall organize
signing ceremony for project documents between the permitted BOT investor, BOT
enterprise and relevant parties as follows:
...
...
...
Bạn phải
đăng nhập hoặc
đăng ký Thành Viên
TVPL Pro để sử dụng được đầy đủ các tiện ích gia tăng liên quan đến nội dung TCVN.
Mọi chi tiết xin liên hệ:
ĐT: (028) 3930 3279 DĐ: 0906 22 99 66
b) Signing PPA with EVN;
c) Signing CSA with Vinacomin (for project using
domestic coal);
d) Signing GSA with PVN (for project using domestic
gas);
dd) Signing LLA with localities where the
project is situated;
3. The BOT enterprise shall be responsible for
submitting requests for legal advice to the Ministry of Justice as prescribed
in the Government’s Decree No. 51/2015/NĐ-CP dated May 26, 2015 on provision of
legal advice.
Article 15. Handling of
issues arising during financial arrangement
General Department of Energy shall cooperate
with the permitted BOT investor in handling issues arising during financial
arrangement. For ultra vires cases, General Department of Energy should make
the report to the Minister of Industry and Trade for submission to the Prime
Minister for consideration and decision.
Article 16. Issuance of
A&C
The Ministry of Industry and Trade, People’s
committees of central-affiliated cities and provinces where the project is
situated EVN shall be responsible for issuing A&Cs to BOT enterprises as
prescribed in BOT contract, LLA and PPA.
...
...
...
Bạn phải
đăng nhập hoặc
đăng ký Thành Viên
TVPL Pro để sử dụng được đầy đủ các tiện ích gia tăng liên quan đến nội dung TCVN.
Mọi chi tiết xin liên hệ:
ĐT: (028) 3930 3279 DĐ: 0906 22 99 66
INSPECTION AND
MONITORING OF THE IMPLEMENTATION OF PROJECT
Article 17. Monitoring
implementation of project contracts and work quality
1. Monitoring the implementation of project
contracts is prescribed in Article 47 of the Decree No. 15/2015/NĐ-CP and
relevant legislative documents.
2. Monitoring of work quality is prescribed in
Article 48 of the Decree No. 15/2015/NĐ-CP and relevant legislative documents.
3. General Department of Energy shall preside
over and cooperate with relevant ministries and sectors in conducting
inspection of the task of examination and acceptance to put Works into
operation as prescribed in the Government’s Decree No. 15/2013/NĐ-CP dated
February 06, 2013 on management of construction quality and relevant
legislative documents.
4. General Department of Energy shall monitor
compliance with obligations by the Investor, BOT enterprises according to
project development progress and provisions as set out in the set of BOT
contract.
Article 18. Reporting mode
1. Monthly reporting
During the construction of the plant, BOT
enterprises shall be responsible for making monthly reports to General
Department of Energy and relevant competent state management agencies on the
fifth of months. Information to be reported includes:
...
...
...
Bạn phải
đăng nhập hoặc
đăng ký Thành Viên
TVPL Pro để sử dụng được đầy đủ các tiện ích gia tăng liên quan đến nội dung TCVN.
Mọi chi tiết xin liên hệ:
ĐT: (028) 3930 3279 DĐ: 0906 22 99 66
b) Difficulties and proposals (if any);
c) Next month’s plans
2. Quarterly, annual reporting
BOT enterprises shall be responsible for
completing quarterly reports (on the fifth of April, July and September), and
annual reports (on the fifth of January) to General Department of Energy and
relevant competent state management agencies.
3. Irregular reporting
In the event of natural disasters, conflagration
or at the request of competent state agencies, BOT enterprises shall be
responsible for making immediate reports to General Department of Energy and
relevant competent state management agencies.
Chapter V
IMPLEMENTARY PROVISIONS
Article 19. Effect
...
...
...
Bạn phải
đăng nhập hoặc
đăng ký Thành Viên
TVPL Pro để sử dụng được đầy đủ các tiện ích gia tăng liên quan đến nội dung TCVN.
Mọi chi tiết xin liên hệ:
ĐT: (028) 3930 3279 DĐ: 0906 22 99 66
2. Organizations and individuals involved in
activities in connection with the BOT project within the territory of Vietnam
shall be responsible for executing this Circular.
Article 20. Transitional
provisions
1. Any project that has been developed before
the effective date of this Circular is instructed in accordance with Article 72
of the Decree No. 15/2015/NĐ-CP.
2. MOU that has been signed before the effective
date of this Circular shall not be re-signed as prescribed hereof.
3. PA of the project that has been signed before
the effective date of this Circular shall not be re-signed as prescribed
hereof.
Article 21. Implementation
1. General Department of Energy shall be
responsible for providing guidance on the execution of this Circular.
2. Difficulties that arise during the
implementation of this Circular should be reported (by Ministries, sectors and
localities, BOT investor, the permitted BOT investor and relevant enterprises)
to General Department of Energy, the Ministry of Industry and Trade for
instructions./.
...
...
...
Bạn phải
đăng nhập hoặc
đăng ký Thành Viên
TVPL Pro để sử dụng được đầy đủ các tiện ích gia tăng liên quan đến nội dung TCVN.
Mọi chi tiết xin liên hệ:
ĐT: (028) 3930 3279 DĐ: 0906 22 99 66
PP THE
MINISTER
DEPUTY MINISTER
Hoang Quoc Vuong