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NATIONAL
ASSEMBLY
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SOCIALIST REPUBLIC OF VIETNAM
Independence - Freedom - Happiness
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Law
No. 64/2020/QH14
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Hanoi, June 18, 2020
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LAW
ON PUBLIC – PRIVATE PARTNERSHIP INVESTMENT
Pursuant to the Constitution of
the Socialist Republic of Vietnam;
The National Assembly hereby
promulgates the Law on Public – Private Partnership Investment.
Chapter I
GENERAL PROVISIONS
Article 1.
Scope
This Law provides for public -
private partnership investments; state management, rights, obligations and
responsibilities of entities, organizations and individuals involved in public
- private partnership investments.
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This Law applies to parties to PPP
investment contracts, regulatory authorities in charge of managing PPP
investments, and other authorities, organizations and individuals involved in
PPP investments.
Article 3. Definitions
For the purposes of this Law, terms
used herein shall be construed as follows:
1. Pre-feasibility study report refers
to a written document describing the subject matters of a preliminary study,
including necessity, feasibility and effectiveness of a PPP investment project
(hereinafter referred to as PPP project), as a basis for competent authorities’
grant of investment policy decisions.
2. Feasibility study report refers
to a written document describing subject matters of the study relating to the
necessity, feasibility and efficiency of a PPP project as a basis for competent
authorities’ approval of that project.
3. Bid guarantee refers to
an investor's implementation of one of security forms, such as leaving a
deposit, depositing funds into escrow accounts or standing surety by a credit
institution, foreign bank branch or insurance enterprise lawfully operating in
Vietnam prior to the tender closing time or date in order to ensure the
bidder’s participation in a bid.
4. Performance guarantee refers
to a PPP project enterprise's implementation of one of the security forms, such
as leaving a deposit, depositing funds into escrow accounts or standing surety
by a credit institution, foreign bank branch or insurance enterprise lawfully
operating in Vietnam in order to ensure execution of contracts by a PPP project
investor or enterprise.
5. Lender means an
organization or individual that lends funds to a PPP project investor or
enterprise to execute a PPP project contract.
6. Bid solicitor refers to a
unit with expertise and competence assigned by a competent agency to organize
the selection of investors.
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8. PPP project enterprise refers
to an enterprise established by an investor to serve the sole purpose of
concluding and executing PPP project contracts.
9. PPP project is a set of
proposals related to the investment to provide public products and services
through the implementation of one or the following activities:
a) Construction, operation and
business of infrastructure works and systems;
b) Renovation, upgradation,
expansion, modernization, operation and business of available works and
systems;
c) Operation and business of
available infrastructure works and systems.
10. Public - private partnership
investment refers to a form of investment carried out by the fixed-term
cooperation between the state and a private-sector investor through conclusion
and execution of a PPP project agreement in order to call for private sector
involvement in a PPP project.
11. PPP project preparation unit
is the unit assigned by the competent agency to prepare pre-feasibility
study reports, feasibility study reports, and perform other related tasks.
12. Prequalification application
means all documents prepared by a bidder and submitted to a bid solicitor
according to requirements of an invitation for prequalification.
13. Bidding documentation means
all documents prepared by a bidder and submitted to a bid solicitor according
to requirements of an invitation to bid.
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15. Bidding invitation means
all documents used for selecting investors, including requirements for project
implementation set forth as a basis for an investor’s preparation of bidding
documentation, and a bid solicitor’s evaluation of bidding documents and
contract negotiation in order to select investors who meet project execution
requirements.
16. PPP project contract means
a written agreement between a contracting authority and a PPP project investor
or enterprise on the State's concession to that investor or PPP project
enterprise to execute a PPP project according to provisions of this Law,
including the following types of contracts:
a) Build – Operate – Transfer
contract (hereinafter referred to as BOT contract);
b) Build - Transfer - Operate
contract (hereinafter referred to as BTO contract);
c) Build - Own - Operate contract
(hereinafter referred to as BOO contract);
d) Operate - Manage contract
(hereinafter referred to as O&M contract);
dd) Build - Transfer - Lease contract
(hereinafter referred to as BTL contract);
e) Build - Lease - Transfer
contract (hereinafter referred to as BLT contract);
g) Mixed contract prescribed in
Clause 3 of Article 45 of this Law.
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18. PPP investor (hereinafter
referred to as investor) is an independent legal entity established under the
provisions of law, or established by entering into partnership amongst multiple
legal entities involved in PPP investments.
19. State capital comprises
state budget capital or capital from lawful revenues retained as investment or
regular expenditures belonging to the state budget’s spending tasks.
Article 4.
Investment sector, size and classification of PPP projects
1. PPP investment sectors,
including:
a) Transportation;
b) Power grids, power plants,
except hydropower plants and those subject to the state monopoly requirement as
provided in the Law on Electricity;
c) Water resources and irrigation;
clean water supply; water drainage and wastewater treatment; waste management
and disposal;
d) Healthcare; education – training;
dd) Information technology
infrastructure.
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a) The minimum capital requirement
of not less than VND 200 billion shall be imposed on projects in the sectors
specified in points a, b, c and dd of clause 1 of this Article. In case where
projects are executed in areas facing socio-economic difficulties or extreme
socio-economic difficulties under the provisions of laws on investment, they
must meet the minimum capital requirement of not less than VND 100 billion;
b) The minimum capital requirement
of not less than VND 100 billion shall be imposed on the projects in the
sectors specified in point d of clause 1 of this Article;
c) Regulations on the minimum
capital requirement laid down in point a and b of this clause shall not apply
to O&M projects.
3. PPP projects shall be classified
by the jurisdiction to issue investment policy decisions, including:
a) PPP projects falling under the
National Assembly’s delegated authority to grant investment policy decisions;
b) PPP projects falling under the
Prime Minister's delegated authority to issue investment policy decisions;
c) PPP projects falling under the
authority to grant investment policy decisions delegated to Ministers, heads of
central authorities and other entities specified in clause 1 of Article 5 in
this Law;
d) PPP projects falling under the
authority to grant investment policy decisions delegated to provincial People’s
Councils.
4. The Government shall elaborate
on investment sectors prescribed in clause 1 and minimum capital requirements
imposed on specific investment sectors as provided in clause 2 of this Article.
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1. Competent authorities,
including:
a) Ministries, Ministry-level
agencies, governmental agencies, central bodies affiliated to political
organizations, Supreme People’s Procuracy, Supreme People’s Court, State Audit,
Office of the President, Office of the National Assembly, and central bodies of
Vietnam Fatherland Front and socio-political organizations (hereinafter
referred to as Ministries and/or central authorities);
b) Provincial People’s Committees;
c) Agencies and organizations set
up by the Government and the Prime Minister, and assigned make state budget
estimates according to the provisions of law on state budget (hereinafter
referred to as other authorities).
2. Authorities signing PPP
contracts, including:
a) Competent authorities prescribed
in clause 1 of this Article;
b) Entities and units authorized by
competent authorities to sign contracts as provided in clause 4 of this
Article.
3. In cases where projects fall
under the management of multiple competent authorities prescribed in Clause 1
of this Article, or in case of change of competent authorities, these
authorities shall report to the Prime Minister to seek his decision to
designate an authority as the competent authority.
4. Competent agencies may authorize
their directly controlled agencies or units to act as authorities signing
contracts to execute PPP projects within their competence.
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1. PPP Project Assessment Boards,
including:
a) State Assessment Board tasked
with carrying out an assessment of pre-feasibility study reports and
feasibility study reports for PPP projects falling under the National
Assembly’s delegated authority to grant investment policy decisions;
b) Interdisciplinary Assessment
Board specialized in carrying out an assessment of pre-feasibility study
reports and feasibility study reports for PPP projects falling under the Prime
Minister’s delegated authority to grant investment policy decisions;
c) Grassroots-level Assessment
Board tasked with carrying out an assessment of pre-feasibility study reports
and feasibility study reports for PPP projects falling under the authority to
grant investment policy decisions delegated to Ministers, Heads of central or
other bodies or provincial People’s Councils, except assessment tasks assigned
to units directly controlled by competent authorities referred to clause 3 of
this Article.
2. The Prime Minister shall decide
to set up PPP Project Assessment Boards prescribed at Points a and b of Clause
1 of this Article upon the request of the Minister of Planning and Investment.
3. Based on the size, scale and
significance of each project, the Minister, Head of central or other body,
President of a provincial People's Committee shall establish grassroots-level Assessment
Boards or assign their directly-controlled unit to conduct an assessment of
pre-feasibility study reports and feasibility study reports for PPP projects.
4. The PPP Project Assessment Board
and its subordinate unit performing the assessment tasks may hire an
independent consultant to work for them.
5. The Government shall elaborate
on this Article.
Article 7. PPP
investment management principles
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2. Ensuring the effective
management and use of State resources invested in PPP projects.
3. Carrying out the inspection,
review, state audit and supervision of PPP projects must ensure that these
activities do not obstruct normal investment and business activities of PPP
investors and/or enterprises.
4. Ensuring open, transparent,
fair, sustainable and efficient investments.
5. Ensuring the balancing between
interests of the State, investors, users and the community.
Article 8.
State management of PPP investments
1. Promulgate, propagate,
disseminate and direct the implementation of legislative documents on PPP
investments.
2. Review, evaluate and report on
the implementation of PPP investments.
3. Examine, inspect and supervise
the implementation of legal provisions on PPP investments.
4. Settle complaints, denunciations
and sanction violations related to PPP investments; address any petitions or
recommendations related to the investor selection process.
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6. Provide instruction or support
related to, and address any issue arising from, administrative procedures for
carrying out PPP investment activities at the request of PPP project investors
and enterprises.
Article 9.
Transparency and disclosure of information about PPP investments
1. Information that must be made
available on the Vietnam National E-Procurement System includes:
a) Information about investment
policy decisions or decisions on approval of PPP projects;
b) Information about selection of
investors, including invitation for prequalification, invitation to bid,
shortlist, bidder selection results;
c) Information about selected
investors in PPP projects and PPP project enterprises;
d) The main contents of a PPP
project contract, including total investment; proportion of funds invested in a
project; type of contract; duration of project implementation; prices and costs
of each public product and service; fee or cost collection forms and locations
(if any) and other necessary information;
dd) The settled amount of public
investment capital invested in PPP projects in the case of using public
investment capital;
e) Legislative documents regarding
PPP investment;
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h) Information on settlement of
complaints, denunciations, petitions and sanctioning of violations of PPP
investment law.
2. In addition to being posted on
the National E-Procurement System, the information specified in Points a, b, c
and d of Clause 1 of this Article must be made publicly available on websites
(if any) of competent authorities.
3. All the information specified in
Clause 1 of this Article should be published on other mass media.
Article 10.
Prohibited acts related to PPP investment
1. Issuing investment policy
decisions that are not conformable to public investment strategies, plans and
programs; that fail to determine state-owned capital invested in those PPP projects
that are subject to the requirement concerning use of state capital; that are
made ultra vires or in breach of legally required processes and procedures
prescribed in this Law.
2. Approving PPP projects in the
absence of investment policies; not conforming to investment policies; ultra
vires or in breach of legally required processes and procedures prescribed in
this Law.
3. Competent authorities and
contracting entities in collusion with consulting organizations and investors
issue decisions on PPP investment policies and approval of PPP projects that
result in any loss or waste of state capital, assets and national resources,
and any harm or infringement on legitimate interests of citizens and the
public.
4. Failing to ensure fairness and
transparency during the process of investor selection, including the following
acts:
a) Tender as an investor for
projects in which the investor is the bid solicitor, the competent authority,
the contracting authority or the entity functioning as the bid solicitor, the
competent authority or the contracting authority;
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c) A person put under the control
of a bid solicitor, a competent authority or a contracting authority directly
participates in the investor selection process, or joins a team of experts or a
team of verification of investor selection results; or is the head of a
competent authority, a contracting authority or a bid solicitor, with respect
to a project for which his/her natural father, mother, father-in-law,
mother-in-law, mother-in-law, spouse, blood or adopted child, daughter-in-law,
son-in-law, younger or elder sibling signs the name of the bidder or acts as
the legal representative for an investor to bid.
d) Bear the name of the bidder for
a project for which a competent authority, a contracting authority or a bid
solicitor is the entity or organization where he/she has worked for 12 months
before leaving.
5. Disclosing and receiving the
following documents and information about the investor selection process:
a) Documents and information
related to documentation for invitation for prequalification or invitation to
bid before the time of issuance thereof as prescribed, except for cases where
projects are subject to the requirement concerning market surveys and prior
consultation with investors for preparation of such documentation;
b) Documents and information
related to pre-qualification applications, bidding documents, reports of bid
solicitors, reports of expert teams, assessment reports, reports of consulting
contractors or reports of relevant professional bodies made in the investor
selection process, prequalification results or investor selection results
before they are disclosed according to regulations;
c) Other documents coming into
existence during the investor selection process, if it is established that they
contain state secrets prescribed by law.
6. Performing bid rigging acts as
follows:
a) Entering into an agreement on
bid withdrawal or withdrawal of the bid application already submitted in order
for one or more parties to such agreement to win the bid;
b) Make an agreement to one or more
parties to prepare bid applications for the bidders so that one or some parties
to such agreement win the bid.
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8. Ceasing the supply of public
products and services other than those falling in the cases specified in PPP
contracts.
9. Offering, taking and brokering
bribes to gain advantage in performing PPP investment activities.
10. Abusing assigned titles and
powers to appropriate, make personal gain from and commit acts of corruption
while managing and using public investment capital invested in PPP projects;
illegally interfering with the PPP project process.
11. Performing PPP investment acts
by fraud, including:
a) Counterfeiting and falsifying
information, records and documents related to decisions on investment policies
and decisions on approval of PPP investment projects, selecting investors and
implementing PPP investment projects in order to obtain illegal gain or evade
any obligation;
b) Deliberately providing
untruthful or biased information that falsifies approved investment policies,
PPP projects, investor selection results, review, inspection, supervision or
audit results, results of settlement of public investment capital, discharge
and termination of PPP contracts;
c) Deliberately providing
untruthful and biased information that falsifies data and figures regarding PPP
project’s revenues in order to gain illicit profits.
12. Hindering detection and
sanctioning of any violation against law on PPP investments.
Article 11.
PPP project process
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a) Making and assessing
pre-feasibility study reports, decisions on investment policies and project
announcement;
b) Making, evaluating feasibility
study reports, and approving projects;
c) Selecting investors;
d) Establishing PPP project enterprises
and concluding PPP contracts;
e) Implementing PPP contracts.
2. For PPP projects using high
technologies on the list of high technologies prioritized for investment in
development thereof under the provisions of the law regarding high technologies
and using new technologies according to the provisions of technology transfer
law, PPP project process shall be subject to the following regulations:
a) Making and assessing
pre-feasibility study reports, decisions on investment policies and project announcement;
b) Selecting investors;
c) Selected investors prepare
feasibility study reports;
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dd) Implementing steps prescribed
at point d and dd of Clause 1 of this Article.
3. In case where a PPP project has
a construction work requiring an architectural proposal test, the test may be
considered and approved under an investment policy decision prescribed in
Clause 1 or Clause 2 of this Article. The architectural proposal test must
comply with provisions of law on architecture.
4. Projects under public investment
plans which are considered to be converted into PPP projects shall comply with
the process specified in Clause 1 or Clause 2 of this Article.
5. The Government shall elaborate
on the PPP project process.
Chapter II
PPP PROJECT PREPARATION
Section 1. PPP
PROJECTS DEVELOPED BY COMPETENT AUTHORITIES
Article 12.
Authority to issue decisions on policies for investment in PPP projects
1. The National Assembly shall be
vested with authority to issue decisions on policies for investment in PPP
projects that meet one of the following criteria:
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b) Having substantial environmental
impacts or posing potential risks in making serious environmental impacts,
including nuclear power plants; using land subject to the requirement for
conversion of uses from land for cultivating specialized forests, upstream
protection forests or border protection forests which covers an area of 50 hectares
or more; from land for protective forests used as wind or sand screens, wave
breakers, or sea reclamation land, which covers at least 500 hectares; from
land for production forests which covers a minimum area of 1,000
hectares;
c) Using land subject to the
requirement for conversion of uses from arable land covering an area of 500
hectares or more for growing wet rice during at least two cropping seasons;
d) Resettling at least 20,000
inhabitants in mountainous areas or at least 50,000 inhabitants in other
regions;
dd) Requiring special legal
frameworks or policies subject to the National Assembly's decisions.
2. Except for the projects
specified in Clause 1 of this Article, the Prime Minister shall be accorded
authority to grant decisions on investment policies for PPP projects satisfying
one of the following criteria:
a) Resettling at least 10,000
inhabitants in mountainous areas or at least 20,000 inhabitants in other
regions;
b) Using central budget capital
managed by ministries or central agencies with total investment equivalent to
that in Group A projects in accordance with the law on public investment, or
using ODA loans and preferential loans from foreign sponsors;
c) Investment in new construction:
airports and airfields; runways of airports and airfields; passenger terminals
of international airports; cargo terminals of airports and airfields with an
annual cargo handling performance of 1 million tonnes or more;
d) Investment in new construction:
harbors or port areas inside special seaports; wharves and port areas inside
grade-I seaports with total investment equivalent to that in Group A projects
in accordance with the law on public investment.
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4. Provincial People’s Councils
shall be accorded authority to make decisions on policies for investment in PPP
projects under their jurisdiction, except for the projects specified in Clauses
1 and 2 of this Article.
5. In case of adjustment in
policies for investment in PPP projects, authority to make decisions on policies
for investment in PPP projects shall be subject to regulations laid down in
Clause 2 of Article 18 herein.
Article 13.
Procedures for making decisions on investment policies for PPP projects
1. Procedures for grant of
decisions on investment policies for PPP projects falling under the National
Assembly’s delegated authority shall be subject to the following regulations:
a) PPP project preparation unit
prepares a pre-feasibility study report as a basis for the relevant competent
authority to submit it to the Government, and concurrently send it to the
Ministry of Planning and Investment;
b) The Ministry of Planning and
Investment offers the Prime Minister a suggestion about setting up the State
Assessment Board;
c) The State Assessment Board
conducts an assessment of the submitted pre-feasibility study report. In case
any project uses public investment capital, the evaluation of funding sources
and the capability to balance investment capital shall be subject to law on
public investment;
dd) The Government prepares
complete documentation submitted to the National Assembly for its review and
decision;
dd) The National Assembly’s
affiliate verifies and reviews the Government’s submitted documentation;
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2. Procedures for grant of
decisions on investment policies for PPP projects falling under the Prime
Minister’s delegated authority shall be subject to the following regulations:
a) PPP project preparation unit
prepares a pre-feasibility study report as a basis for the competent authority
to send it to the Ministry of Planning and Investment;
b) The Minister of Planning and
Investment offers the Prime Minister a suggestion about setting up the
Interdisciplinary Assessment Board;
c) The Interdisciplinary Assessment
Board conducts an assessment of the submitted pre-feasibility study report;
d) Ministry of Planning and
Investment leads the evaluation of funding sources and capacity for balancing
central government’s budget capital under the provisions of law on public
investment in the case of PPP projects using central government’s budget
capital before sending them to the Interdisciplinary Assessment Board;
dd) Local public investment
authorities lead the evaluation of funding sources and capacity for balancing
local government’s budget capital under the provisions of law on public
investment in the case of PPP projects using local government’s budget capital
before sending them to the Interdisciplinary Assessment Board;
e) The Interdisciplinary Assessment
Board completes and sends an assessment report to the relevant competent
authority;
g) Competent authority prepares
complete documentation submitted to the Prime Minister for his review and
decision;
h) The Prime Minister issues
investment policy decisions.
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a) PPP project preparation units
prepare pre-feasibility study reports as a basis for Ministers and heads of
central authorities and other bodies to consider issuing decisions;
b) Grassroots-level Assessment
Boards or authorized units carry out the assessment of pre-feasibility study
reports;
c) Public investment authorities
under the control of Ministries, central authorities and other bodies lead the
evaluation of funding sources and capacity for balancing public investment
capital under the provisions of law on public investment in the case of PPP
projects using public investment capital before sending them to the
Grassroots-level Assessment Boards or authorized assessment units;
d) Grassroots-level Assessment
Boards or authorized assessment units complete and send assessment reports to
PPP project preparation units;
dd) PPP project preparation units
prepare complete documentation for submission to Ministers and heads of central
authorities and other bodies for their review and decision;
e) Ministers, heads of central
authorities and other bodies issue their investment policy decisions.
4. Procedures for grant of
decisions on investment policies for PPP projects falling under the delegated
authority of provincial People’s Councils shall be subject to the following
regulations:
a) PPP project preparation units
prepare pre-feasibility study reports for submission to provincial People’s
Committees;
b) Grassroots-level Assessment
Boards or authorized assessment units carry out the assessment of
pre-feasibility study reports;
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d) Grassroots-level Assessment
Boards or authorized assessment units complete and send assessment reports to PPP
project preparation units;
dd) PPP project preparation units
prepare complete documentation as a basis for provincial People's Committees to
submit them to provincial People's Councils for their review and decision;
e) Provincial People’s Councils issue
investment policy decisions.
5. As for PPP projects using
regular expenditures or lawful revenues reserved for regular spending purposes
by state authorities or public service units for making payments to PPP project
enterprises, or using state budget reserves for offsetting reduced revenues,
financial institutions at all levels evaluate the capability of balancing the
budget according to the provisions of law on state budget, and send them to PPP
Project Assessment Boards or assigned assessment units for a general
report submitted to competent authorities to seek their investment policy
decisions.
Article 14.
Selection of PPP projects and formulation of pre-feasibility study reports for
PPP projects
1. Requirements for a project’s
eligibility for PPP investment shall comprise:
b) Necessity of making investment;
b) The selected project falls
within the sectors prescribed in clause 1 of Article 4 in this Law and meets
the minimum total investment requirement prescribed in clause 2 of Article 4
herein;
c) The selected project is not the
duplicate of the PPP project obtaining an investment policy decision or a
project approval decision;
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dd) State capital may be available
on demand.
2. Bases for preparation of
pre-feasibility study reports shall include:
a) National socio-economic
development strategies, plans and other planning schemes in accordance with law
on planning;
b) Provisions of this Law and other
regulations of other laws related to the sectors where projects invest;
c) Other relevant legislative
documents.
3. Pre-feasibility study report
shall contain the following main subject matters:
a) Necessity of making investment;
more advantages provided by PPP investment than other investment form; effects
of PPP projects on the community and population living within these projects;
b) Objectives; proposed scale,
location and time of execution of projects, land and other natural resource
demands;
c) Preliminary design plans under
the construction law for projects with construction components, other relevant
laws for projects without construction components; preliminary explanatory
notes or interpretations on technical and technological plans; preliminary
division of component projects (if any);
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dd) Preliminary total investment
estimate; preliminary assessment of the project's financial plan; proposal for
use of state capital invested in the project (if any); proposal for application
of the method of payment to the investor with respect to BTL or BLT projects;
e) Proposed PPP contract type;
investment incentive and guarantee forms; mechanism for distribution of reduced
revenues.
Article 15.
Assessment of pre-feasibility study reports for PPP projects
1. Documentation on assessment of
PSR shall comprise:
a) Written request for assessment;
b) Draft application for decision
on investment policy;
c) Pre-feasibility study report;
d) Other legislative materials
related to the project.
2. Assessment of a pre-feasibility
study report shall mainly focus on the followings:
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b) Relevance to bases for
formulation of pre-feasibility study report prescribed in clause 2 of Article
14 herein;
c) Efficiency of investment;
capital recovery;
d) Relevance of the PPP contract
type;
dd) Mechanism for distribution of
revenue reductions;
e) Funding sources and capital
balancing capability of PPP projects using state capital.
Article 16.
Request documentation for investment policy decisions for PPP projects
1. Request form for investment
policy decision.
2. Draft decision on investment
policy.
3. Pre-feasibility study report.
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5. Other legislative materials
related to the project.
Article 17.
Information included in an investment policy decision for a PPP project
1. An investment policy decision
shall include the following main information:
a) Project name;
b) Competent authority’s name;
c) Objectives; proposed project
scale, site and time of execution of the project, land and other natural
resource demands;
d) Proposed PPP contract type;
dd) Preliminary total investment
estimate; preliminary financial plan: structure of funds invested in the
project, expected price bracket, and prices of public products and services
with respect to projects applying the mechanism for collecting fees directly
from users;
e) Mechanism for guarantee of
investment and distribution of revenue reductions.
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Article 18.
Modification of PPP investment policy
1. PPP investment policy shall be
adjusted if the PPP project's objectives, location, scale or type of contract
is changed, and the total investment is increased by 10% or more, or the value
of state capital invested in the PPP project is increased, due to the following
causes:
a) A project is affected by force
majeure events;
b) Relevant planning, policies and
laws change;
c) Pre-feasibility study report is
modified.
2. Competent authorities mandated
to make decisions on policies for investment in PPP projects shall be
authorized to issue decisions to modify policies for investment in those
projects and shall be responsible for such decisions.
3. Procedures for a competent
authority’s grant of a decision to modify an investment policy for a PPP
project shall be subject to regulations laid down in Article 13 applied to
adjustments or modifications.
4. Documentation on modification of
an investment policy, including:
a) Request form for adjustment or
modification of investment policy;
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c) Report on inspection and review
of modified or adjusted contents of a pre-feasibility study report;
d) Other legislative materials
related to the project.
Article 19.
Contents of a feasibility study report for a PPP project
1. The PPP project preparation unit
shall make a feasibility study report, based on investment policy decisions.
2. Main subject matters of a
feasibility study report, including:
a) Necessity of making investment;
more advantages provided by PPP investment than other investment form; results
of response to comments on the impacts of PPP projects upon receipt of opinions
from People's Councils, People's Committees, Vietnam Fatherland Front of the
provinces where the projects are located, or investment-related trade
associations;
b) Relevance to related national
socio-economic development strategies, plans and other related planning schemes
in accordance with law on planning;
c) Objectives; scale; location;
land and other natural resource demands;
d) Project execution time and
schedule, including contract term and construction time for projects with
construction components;
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e) PPP contract type;
project-related risk analysis and risk management measures;
g) Investment incentive or
guarantee form, mechanism for splitting of reduced revenues;
h) Total investment; financial
plan; estimated state capital and corresponding management and use method (if
any); results of survey of interest of investors and lenders (if any);
capability to raise capital for implementation of projects; plans for
organization of management, business or provision of public products and
services;
i) Socio-economic efficiency;
environmental impact assessment report prepared in accordance with law on
environmental protection.
Article 20.
Documentation requirements and contents of assessment of a feasibility study
report for a PPP project
1. Documentation requirements of
assessment of a feasibility study report shall comprise:
a) Written request for assessment;
b) Application form for approval of
the project;
c) Full texts of the feasibility
study report;
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dd) Other legislative instruments
related to the project.
2. Assessment of a feasibility
study report shall mainly focus on the followings:
a) Conformity with legal bases;
b) Necessity of making investment;
c) Relevance to requirements
concerning technical and technological plans, quality requirements and
standards of the project, infrastructure systems or public products or services.
The assessment of matters related to design, technical, technological documents
and quality standards shall comply with regulations of law on construction and
other relevant laws;
d) Relevance of the PPP contract
type;
dd) Financial feasibility; plans
for organization of management, business or provision of public products and
services;
dd) Socio-economic effectiveness.
Article 21.
Authority to approve PPP projects
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2. Ministers, Heads of central
authorities and other agencies shall be authorized to approve the projects
under their management as prescribed in Clause 2 and 3 of this Law.
3. Presidents of provincial
People’s Committees shall be mandated to approve the projects under their
management as prescribed in Clause 2 and 4 of Article 12 in this Law.
Article 22.
Documentation requirements for approval of PPP projects
1. Application form for approval of
the project.
2. Draft decision on approval of
the project.
3. Feasibility study report.
4. Report on assessment of
feasibility study report.
5. Full texts of the decision on
investment policy.
6. Other legislative materials related
to the project.
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An investment policy decision for a
PPP project shall include the following main information:
1. Project name;
2. Contract signatory’s name;
3. Objectives; scale; location;
time of project execution; land and other natural resource demands;
4. PPP contract type;
5. Total investment; structure of
capital invested in the project; prices and charges of public products and
services for projects applying the contract under which the mechanism for
direct fee collection from users is carried out;
6. Name of the bid solicitor, form
of investor selection, time of investor selection, except for the case
specified in Clause 2 of Article 17 in this Law.
Article 24.
Modification of PPP project
1. Feasibility study report may be
revised if:
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b) Elements bringing about higher
efficiency for the project appear;
c) There is any changes in the
planning, relevant policy or law directly affecting objectives, location and
scale of the project;
d) Selection of the investor in
implementation of the project fails.
2. If any change in a feasibility
study report results in any change in objectives, scale, location and type of
PPP contract, or an increase of at least 10% or appreciation in state capital
invested in a PPP project, processes and procedures for grant of decision on
adjustment of investment policy must be carried out before seeking the relevant
competent authority’s decision on approval of modification of the project.
3. Authority, processes and
procedures for assessment of and approval of modification of a PPP project
shall be subject to regulations laid down in Article 19, 20, 21, 22 and 23 of
this Law with respect to modifications or revisions.
4. Documentation requirements for
modification or revision of a PPP project shall include:
a) Application form for approval of
modification of the project;
b) Draft decision on approval of
modification of the project;
c) Report on inspection and review
of modified or adjusted contents of a feasibility study report;
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Article 25.
Public disclosure of PPP projects
1. Within 10 days from the date of
issuance of the decision on investment policy, the decision on adjustment in
the investment policy (if any), the decision on approval of the project, the
decision on approval of the adjustment (if any), the competent authority shall
make information about the project publicly available under the provisions of
Clause 2 of this Article.
2. Project details to be publicly
disclosed shall comprise:
a) Decision on investment policy,
decision on adjustment in investment policy (if any);
b) Decision on approval of the
project, decision on approval of adjustment in the project (if any);
c) Information about the contact
address of the relevant competent authority, contract signatory and bid
solicitor.
Section 2. PPP
PROJECTS PROPOSED BY INVESTORS
Article 26.
Requirements of an investor-proposed PPP project
1. An investor-proposed PPP project
must meet the following requirements:
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b) Ensuring that a PPP project is
not duplicated with other PPP projects for which competent authorities have
prepared pre-feasibility study reports or approved of other investors preparing
pre-feasibility study reports;
c) Conforming to the national
socio-economic development strategies, plans and other relevant planning
schemes in accordance with law on planning.
2. The open tendering and
competitive negotiation for projects proposed by investors must be conducted
according to the provisions of Article 37 or Article 38 of this Law.
Article 27.
Procedures for preparation of investor-proposed PPP projects
1. Procedures for preparation of
the proposal documentation shall be as follows:
a) The investor submits the written
proposal form for implementation of a PPP project to a relevant competent
authority. In case where a receiving competent authority cannot be identified,
it shall be sent to the state PPP investment authority;
b) The competent authority
considers responding in writing that the investor approves or refuses the
investor’s bid for preparation of the pre-feasibility study report. The written
approval may delineate the way to coordinate with a competent authority’s
affiliates, requirements concerning the deadline for submission of an
investor’s project proposal and other relevant matters; in case of disapproval,
clearly stating the reasons;
c) In case of being approved by a
competent authority, the investor prepares a project proposal, including:
pre-feasibility study report, documents and records on the investor’s legal
status, capacity and experience;
d) The investor sends the proposal
documentation to the competent authority;
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2. Projects proposed by investors shall
be subject to the assessment and investment policy decision according to the
provisions of Article 6, 12, 13, 14, 15, 16 and 17 of this Law.
3. Feasibility study report
formulation and assessment, and project approval procedures shall be carried
out as follows:
a) The investor takes charge of
preparing the feasibility study report under Article 19 herein;
b) The feasibility study report
prepared by the investor shall be subject to the assessment conducted under
Article 20 herein;
c) The project is approved under
the regulations laid down in Article 21, 22 and 23 herein;
d) If the project is not approved,
the investor shall bear all costs and risks.
4. Project announcement procedures
shall be subject to the following regulations:
a) After an investor-proposed
project obtains the investment policy decision or the project approval decision
from a relevant competent authority, the competent authority shall publish
project information in accordance with Article 25 of this Law and name of the
investor proposing the project;
b) For projects containing
information related to intellectual property rights, trade secrets,
technologies or capital raising agreements for project execution subject to the
confidentiality requirement, the investor agree with a relevant competent
authority about unpublished information.
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6. Costs of preparation of the
pre-feasibility study report or the feasibility study report shall be charged
into total investment in the project. In case where the investor
submitting the project proposal is not selected, the expenses incurred from
making the pre-feasibility study report or the feasibility study report shall
be reimbursed by the selected investor.
7. The Government shall elaborate
on this Article.
Chapter III
INVESTOR SELECTION
Section 1.
GENERAL PROVISIONS REGARDING INVESTOR SELECTION
Article 28.
Investor selection procedures
1. An investor shall be selected
according to the following procedures:
a) Drawing up the shortlist (where
applicable);
b) Making preparations for selection
of the investor;
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d) Evaluating bidding documents;
dd) Submitting, assessing,
approving and publishing investor selection results;
e) Negotiating, finalizing and
concluding a PPP contract, and publishing contract information.
2. Based on the specific conditions
of each project, the competent authority draws up a shortlist after issuing an
investment policy under Point a of Clause 1 of Article 11 in this Law, or after
approving the project under Point b of Clause 1 of Article 11 herein.
3. Selecting an investor according
to the procedures specified in Clause 1 of this Article on the Vietnam National
E-Procurement System shall conform to the schedule set by the Minister of
Planning and Investment.
4. The investor whose project
proposal has been accepted shall be entitled to the preferential treatment
during the bid evaluation process.
5. The selected investor committed
to hiring domestic contractors, and using domestic goods, supplies, materials
and equipment, shall be given preference during the bid evaluation process.
6. The Government shall elaborate
on this Article.
Article 29.
Investor’s lawful status
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1. Having an establishment and
operation registration certificate issued by a competent authority of the
country or territory in which that investor is operating;
2. Carrying out the independent
financial accounting regime; ensuring competitive investor selection;
3. Not in the dissolution process;
not falling into the case of insolvency in accordance with the law on
bankruptcy;
4. Not subject to any prohibition
against participation in PPP investment activities;
5. Enterprises with 100% state-owned
capital must enter into partnership with private sector investors to
participate in the bidding process;
6. Investors established under
foreign laws must meet market access conditions when participating in the
process of selection of investors in projects in the relevant conditional
sectors and trades, subject to the provisions of the law on investment.
Article 30.
Assurance of competitive investor selection
Bidding investors must display
legal and financial independence from the parties hereunder:
1. The party giving counsel on
preparation of the pre-feasibility study report or feasibility study report,
except for cases where the project is proposed by an investor;
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3. The party giving counsel on the
formulation and assessment of the invitation for prequalification and the
invitation for bid; the evaluation and inspection of prequalification or
investor selection results;
4. The competent authority, the
contract signatory and the bid solicitor.
Article 31.
Domestic or international investor selection
1. The selection of domestic
investors shall be made in the forms prescribed in Articles 37, 38, 39 and 40
of this Law. Only investors established under Vietnamese law may participate in
this selection process.
2. The selection of international
investors shall be made in the forms prescribed in Articles 37, 38, 39 and 40
of this Law. Both investors established as per foreign law and those
established as per Vietnamese law may participate in this selection process.
3. The process of selection of
international investors may be applied to all PPP projects, except:
a) Projects in the industries and
trades without the authorization for market access in which foreign investors
make their investment in accordance with the law on investment;
b) Projects subject to the
requirements concerning national defence, security and state secrets.
Article 32.
Language used in the investor selection process
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Article 33.
Bid guarantee
1. Based on the scale and nature of
each project, the value of a bid guarantee shall be specified in the invitation
for bid at a determined rate of between 0.5% and 1.5% of total investment of
the project.
2. The period of validity of the
bid guarantee specified in the invitation for bid shall be equal to the
validity period of the bid plus 30 days.
3. In case of extension of the
validity period of a bid, the bid solicitor must request the investor to give
an extension equivalent to the period of validity of the bid guarantee provided
that the contents of the submitted bid are not changed. In case the investor
refuses to give such extension, the bid will be no longer valid and eliminated.
4. In case a partnership
participates in a bid, each partner member can provide a separate bid guarantee
or can enter into an agreement under which a partner member is responsible for
providing the bid guarantee for both that partner member and others joining the
partnership. Total value of a bid guarantee shall not be less than the value requested
in the invitation for bid. In case where there is a member in the partnership
violating the provisions of Clause 6 of this Article, the bid guarantees
provided by all member partners shall not be refunded.
5. Bid solicitors must return or
release bid guarantees to unsuccessfully bidding investors within the time
limit specified in the invitation for bid, but not longer than 14 days from the
date on which the results of investor selection are approved. With regard to
the selected investor, their bid guarantee shall be returned or released after
the PPP project enterprise established by the investor has fulfilled their
obligations specified in the contract performance security (or performance
bond) as prescribed in Article 48 herein.
In case an investor refuses to give
an extension as prescribed in Clause 3 of this Article, the bid solicitor must
return or release the bid guarantee to the investor within 14 days from the
date on which the bid solicitor has received the written document on refusal of
extension.
6. Bid guarantees shall not be
returned in the following cases:
a) Investors withdraw their bids
during the validity of these bids;
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c) The investor has not conducted
or refused to negotiate or finalize the contract within 30 days of receipt of
the bid-winning notice from the bid solicitor, or has negotiated and finalized
the contract but refused to sign the contract, except in force majeure cases;
d) PPP project enterprises
established by investors has failed to fulfill their obligations specified in
the contract performance security (or performance bond) as prescribed in
Article 48 herein.
Article 34.
Bid cancellation
1. Bid cancellation shall occur in
the following cases:
a) All applications for
prequalification and bidding documents do not meet the requirements of the
invitation for prequalification or the invitation for bid;
b) Objectives and scale mentioned
in the invitation for prequalification or the invitation for bid change;
c) The invitation for
prequalification or the invitation for bid fails to comply with regulations
laid down in this Law or other relevant laws to the extent that the selected
investor fails to meet the requirements for project implementation;
c) The investor selection process
is carried out in breach of regulations laid down in this Law or other relevant
laws to the extent that competition between investors is restricted;
dd) There is any proof of bribe
offer, receipt or brokerage, bid rigging, fraud, abuse of position and power
with the intention of illegally interfering in bidding activities to the extent
that such acts falsify results of investor selection.
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Article 35.
Bid solicitor’s responsibilities during the investor selection process
1. Assume responsibility before law
and to competent authorities for the investor selection process.
2. Ensure faithfulness, objectivity
and equality.
3. Pay compensation in accordance
with laws.
4. Keep documents or records
confidential.
5. Store relevant information
provided in law on archives.
Article 36.
Handling of investor selection situations arising in the project execution
process
1. Handling of investor selection
situations arising in the project execution process means any response to cases
arising that has not been prescribed clearly and in detail herein.
2. Competent authorities and bid
solicitors shall be responsible before law for situation handing decisions on
the basis of ensuring conformity with the following principles:
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b) Such decisions must be made
based on the investment policy decision; the project approval decision; the
invitation for prequalification; prequalification applications or bidding
documents; prequalification results, investor selection results; the contract
that has been signed with the selected investor; actual situation of project
implementation.
3. The Government shall elaborate
on this Article.
Section 2.
INVESTOR SELECTION APPROACHES
Article 37.
Open bidding
1. Open bidding is an approach to
selecting investors in which the number of participating investors is not
limited.
2. Open bidding must be applied to
all PPP projects, except the cases specified in Articles 38, 39 and 40 of this
Law.
Article 38.
Competitive negotiation
Competitive negotiation approach
shall be employed in the following cases:
1. No more than 03 investors
meeting project execution requirements are invited to attend;
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3. Projects use high technologies
prescribed in law on technology transfer.
Article 39.
Investor appointment
1. The approach to appointing
investors shall be employed in the following cases:
a) Projects need to meet the requirements
concerning national defence, security and state secret;
b) Projects need to immediately
select a substitute investor in accordance with Point a of Clause 4 of Article
52 in this Law to ensure continuity in the project implementation process.
2. The authority having competence
in granting the decision on approval of projects shall decide the investor
appointment; in case of appointment of an investor in the project prescribed at
Point a of Clause 1 of this Article, prior to appointment of the investor, the
Prime Minister's consent must be obtained upon consultation with the Ministry
of National Defense and/or the Ministry of Public Security about national
defense, security and state secret protection requirements.
Article 40.
Investor selection taking place in certain special cases
1. In case where conditions arising
in a PPP project are so specific or particular that the investor selection
approaches referred to in Article 37, 38 and 39 of this Law cannot be applied,
competent authorities shall seek the Prime Minister’s decision on the investor
selection plan.
2. Documentation submitted to the
Prime Minister to seek his decision shall include the followings:
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b) Explanation about specific or
particular conditions of a project;
c) Plan for selection of investors
in special cases shall describe the following information: investor selection
steps; specific solutions to address specific and particular characteristics of
the project which are proposed to ensure the investment efficiency of the
project.
Section 3.
METHODS AND STANDARDS FOR EVALUATION OF PREQUALIFICATION OR BIDDING DOCUMENTS
Article 41.
Methods and standards for evaluation of prequalification applications
1. Evaluation of an application for
prequalification shall be made by employing the scoring method according to the
100 or 1,000-point grading system referred to in the invitation for
prequalification. The scoring method shall be developed based on the evaluation
standards for prequalification applications as specified in Clause 2 of this
Article.
2. Standards for evaluation of
pre-qualification applications shall include the following basic details:
a) Financial - commercial capacity
and experience, capital arrangement capability; experience in execution of similar
projects.
In the case of a partnership, the
investor’s capability and experience shall be determined by the aggregate
capacity and experience of member partners; any investor as the head of a
partnership must contribute at least 30% of their capital to the partnership’s
equity while each member partner must contribute at least 15% of their capital
to the partnership’s equity;
b) Preliminary project execution
plan and project implementation commitment;
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Article 42.
Methods and standards for evaluation of bidding documents
1. Capability and experience
evaluation shall be made according to the 100 or 1,000-point grading system
referred to in the bidding documentation. Standards for capability and
experience evaluation shall be subject to provisions laid down in clause 2 of
Article 41 herein.
2. The technical evaluation shall
be made based on the 100 or 1,000-point grading system or the pass/fail grading
system prescribed in the invitation for bid. The technical evaluation standards
shall comprise project quality, capacity and performance standards; project
operation, management, business, maintenance and care standards; environmental
and safety standards; other engineering standards.
3. Financial – commercial
evaluation shall be made according to the comparison or ranking approach
specified in the invitation for bid. The comparison and ranking approach shall
be developed according to financial – commercial evaluation standards,
including one of the following standards:
a) Standards for public product and
service prices and charges;
b) Standards for state capital used
for supporting the construction of infrastructure works and systems;
c) Standards for social and state
benefits.
4. The Government shall elaborate
on this Article.
Article 43.
Pre-approval inspection of investor selection results
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1. Their bidding documents are
valid;
2. They satisfy capability and
experience requirements;
3. They conform to technical
requirements;
4. They meet financial – commercial
requirements;
5. Their bidding documents are
ranked first.
Chapter IV
INCORPORATION AND OPERATION OF PPP PROJECT ENTERPRISES;
PPP CONTRACTS
Article 44.
Incorporation and operation of PPP project enterprises
1. After the decision to approve
the selection results is issued, the investor shall establish a PPP project
enterprise in a form of a limited liability company or a joint stock company
that is not a public company with the sole purpose of signing and implementing
PPP contracts. The application for enterprise registration shall contain the
details prescribed by law on enterprises and the decision on approval of
investor selection results.
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3. Apart from compliance with the
provisions of Clauses 1 and 2 of this Article, the establishment, management,
operation, dissolution, and bankruptcy of PPP project enterprises must comply
with laws pertaining to businesses or enterprises, and regulations of other
relevant laws and PPP contracts.
Article 45.
Classification of PPP contracts
1. The group of project contracts
applying the mechanism for direct collection of fees from users or underwriting
for public products and services, including:
a) BOT contract means the contract
under which a PPP project investor or enterprise is assigned the right to build
and operate infrastructure works and systems within a predetermined term; upon
expiry of such term, the PPP project investor or enterprise transfers these
works or systems to the State;
b) BTO contract means the contract
under which a PPP project investor or enterprise is assigned the right to build
infrastructure works and systems; after the construction is complete, the PPP
project investor or enterprise transfers these works or systems to the State,
and is accorded the right to operate these works or systems within a specified
period of time;
c) BOO contract means the contract
under which a PPP project investor or enterprise is assigned the right to
build, own and operate infrastructure works and systems within a predetermined
term; upon expiry of such term, the PPP project investor or enterprise
terminates the contract;
d) O&M contract means the
contract under which a PPP project investor or enterprise is assigned the right
to operate and manage part or the whole of existing infrastructure works and
systems within a predetermined term; upon expiry of such term, the PPP project
investor or enterprise terminates the contract.
2. The group of project contracts
providing the State mechanism whereby payment is made on the basis of the
quality of public products and services, including:
a) BTL contract means the contract
under which a PPP project investor or enterprise is assigned the right to build
infrastructure works or systems, and transfer them after completion; is
accorded the right to supply public products and services on the basis of operating
and exploiting these works or systems within a predetermined term; the
transferee signs a service lease and pays the PPP project investor or
enterprise;
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3. Mixed contract is the contract
which is the result of combination of those contracts prescribed in Clause 1
and 2 of this Article.
4. With respect to the projects
referred to in Point b of Clause 9 of Article 3 herein, the contract providing
the mechanism for direct collection of fees from users shall not be applied to
them.
Article 46.
PPP contract documentation
1. PPP contract documentation shall
comprise the following main documents:
a) PPP contract, including general
and specific terms and conditions;
b) Appendices (if any);
c) Contract negotiation minutes;
d) Decision on approval of investor
selection results;
dd) Bidding documents and other
documents clarifying the selected investor’s bidding documents;
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2. If there is any change in any
contractual terms and conditions, parties shall need to sign appendices to the
contract.
Article 47.
Basics of project execution contracts
1. A PPP contract shall contain the
following information:
a) Objectives, scale, location and
schedule of implementation of a project; time and duration of a infrastructure
work or system; the effective date of the contract; contract term;
b) Scope of and requirements
concerning engineering, technology and quality of the infrastructure work or
system, supplied public products or services;
c) Total investment; capital
structure; financial plan, including the financial arrangement plan; public
product and service prices and charges, including methods and formulas for
setting or adjusting them; state capital invested in a PPP project and the corresponding
form of management and use (if any);
d) Conditions for use of land and
other natural resources; plans to organize the construction of auxiliary works;
requirements for compensation, support and resettlement; assurance of safety
and environmental protection; force majeure cases and plans for response to
force majeure events;
dd) Responsibilities for carrying
out licensing procedures according to regulations of relevant laws; design;
organization of construction; quality inspection, supervision and management at
the construction phase; acceptance testing, settlement of investment capital
and confirmation of the completion of infrastructure works and systems;
provision of main input materials used for production and business activities
of the project;
e) Responsibilities for the
operation and commercial use of infrastructure works and systems so that public
products and services are provided in a continuous and stable manner;
conditions, order and procedures for transfer of infrastructure works and systems;
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h) Plans for response to the
circumstances substantially changing in accordance with civil law to continue
to perform the contract; response, compensation and punitive measures in case
one of the contracting parties breaches the contract;
i) Responsibilities of parties
related to information security; reporting regime; provision of information,
related documents and explanation about the contract performance at the request
of competent authorities, inspection, examination, auditing, and supervising
authorities;
k) Principles and conditions for
amendment, supplementation and termination of the contract before its expiry;
assignment of rights and obligations of the parties; the lender's rights;
procedures, rights and obligations of the parties upon contract discharge;
l) Investment incentives,
guarantees, plans to share the revenue increase and decrease, assurance of
balancing of foreign currencies, types of insurance (if any);
m) Laws governing the contract and
dispute resolution mechanism.
2. PPP contract must specify rights
and obligations of the contracting authority, the investor and the PPP project
enterprise.
3. The Government shall regulate
sample contracts applicable to types of contracts specified in Article 45 of
this Law.
Article 48.
PPP contract performance security
1. The PPP project enterprise must
provide a contract performance security before the effective date of the
contract.
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3. The validity period of the
contract performance security shall start on the effective date of the contract
and end on the date on which the PPP project enterprise completes its
contractual obligations during the stage of construction of infrastructure work
or system under the contract; In cases where it is necessary to prolong the
construction period, the investor must extend the validity period of the
contract performance security accordingly.
4. The PPP project enterprise shall
be entitled to return or release the contract performance security after
discharge of their contractual obligation to build the construction work or
infrastructure system, unless otherwise prescribed in Clause 5 of this Article;
As for O&M contracts, the contract performance security shall be returned
or released after the investor completes their contractual obligations.
5. The PPP project enterprise shall
not be entitled to the return or release of the contract performance security
in the following cases:
a) Refuse to execute the contract
after contract conclusion;
b) Violate agreement made in the
contract to the extent of the early termination of the contract as prescribed
at Point d of Clause 2 of Article 52 in this Law;
c) Fail to extend the validity
period of the contract performance security under the regulations laid down in
clause 3 of this Article.
6. The Government shall elaborate
on the ratio of value of the contract performance security under clause 2 of
this Article.
Article 49.
Conclusion of PPP project execution contracts
1. A contract shall be signed on
the basis of a decision on approval of investor selection result, contract negotiation
result or bidding document that remains valid, or investor's capability
information which is updated at the time of contract conclusion and the
invitation for bid.
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3. As for investors in
partnerships, all member partners must directly bear their signatures and
stamps (if any) into the contract.
Article 50.
Modification or revision of PPP contracts
1. Modification of a PPP project
contract must be specified in the contract and considered by the contracting
parties in one of the following cases:
a) The project is affected by force
majeure events or when circumstances change substantially or when there is any
change in relevant planning, policies or laws that seriously affects the
technical and financial plans of the project, prices and charges of public
products and services supplied by the PPP project enterprise;
b) One of the contracting parties
is subject to certain adjustment;
c) The term of the PPP contract
provided in clause 2 and 3 of Article 51 herein is subject to any adjustment;
d) A PPP contract falls into other
cases where modification or revision thereof is required under the authority of
the contracting authority provided that such modification does not result in
any change in the investment policy, and brings about better financial and
socio-economic efficiency for the project.
2. The steps in modifying a PPP
contract shall be specified as follows:
a) One of the contracting parties
submits a written request for modification or revision of the contract,
clarifying cases in which modification or revision of the contract is accepted;
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c) The contracting parties need to
sign appendices to the contract that describe amendments or modifications.
3. With respect to the modification
of a contract leads to a change in the objectives, location, size and type of
PPP contract, if an increase in total investment by 10% or more or the value of
state capital invested in the PPP project is made after contingency funds are
used up, investment policy adjustment procedures must be carried out as
prescribed in Article 18 of this Law before signing the contract annexure for
amendments or modifications.
Article 51.
PPP contract term
1. The contract term shall be
agreed upon between parties based on the decision on approval of investor
selection results.
2. The contracting parties may
adjust the contract term on condition that the aggregate contract term,
including the adjustment period, does not exceed the land allocation or lease
term in accordance with the land law, and such adjustment does not change other
contents of the project investment policy decision.
3. Cases in which adjustment in the
contract term is required, including:
a) There is any delay in completing
the construction phase or any interruption in the operation of the construction
work or infrastructure system due to any substantial change in circumstances as
provided in the civil law to the extent that it goes beyond the reasonable
control of a contracting party;
b) The project is suspended by the
competent authority or other competent authority of the State, except as it is
suspended through the PPP project enterprise’s fault;
c) As additional costs incurred due
to the competent authority’s request have not yet been determined by the
contracting authority after the contract conclusion, in case of failure to
obtain permission for such extension, the PPP project enterprise cannot recover
these costs;
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dd) The revenue increases by at
least 125% compared to the revenue inscribed in the financial plan specified in
the contract.
Article 52.
PPP contract termination
1. The contract termination shall
comply with the provisions of the contract, and may serve as a basis for the
contract discharge.
2. Termination of a PPP project
contract before its expiry (briefly called early termination) only occurs in
the following cases:
a) If the project is affected by a
force majeure event, despite all remedial actions taken by parties, the
continued execution of the PPP contract will not be ensured;
b) Early termination occurs to gain
the state interests; meet the requirements concerning national defence,
security and state secrets;
c) The PPP project enterprise loses
its solvency in accordance with the law on bankruptcy
d) Either party seriously defaults
on contractual obligations;
dd) Other cases appear due to
substantial changes in circumstances in accordance with civil law to the extent
that the contracting parties agree to terminate the contract.
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4. In case of termination of a PPP
contract before its expiry, the contracting authority shall perform the
following tasks:
a) Cooperating with the lender in
selecting an alternative investor to sign a new PPP contract;
b) Pending the implementation of
the response plan, if an alternative investor has not been selected yet, the
contracting authority shall be responsible for the safety and
anti-deterioration of the work or infrastructure system with respect to the
project under construction; the operation and commercial use of the work or
infrastructure system to ensure the continuity of the provision of public
products and services with respect to the project in operation.
5. The authority entering into a
contract to perform the tasks specified in Clause 4 of this Article may use the
funding sources specified in Clause 3 of Article 73 in this Law and other
lawful income.
6. In case where the PPP contract
is terminated before expiration of the term specified at Point b of Clause 2 of
this Article or due to the contracting authority’s serious default on the
performance of the contractual obligations specified at Point d of Clause 2 of
this Article, funds for acquisition of the PPP project enterprise or
compensation for contract termination shall be allocated from the state capital
according to the provisions of law; In case the termination occurs at the
investor's fault specified at Points c and d of Clause 2 of this Article, the
investor shall be responsible for transferring shares or contributed capital
portions to the alternative investor.
7. The Government shall elaborate
on this Article.
Article 53.
Lender’s rights
1. During the process of execution
of a PPP contract, the lender's rights shall be exercised according to the
parties' agreements made in the credit facility contract, the PPP contract and
regulations of relevant laws.
2. In case where a PPP contract is
terminated before expiration and an alternative investor is selected, the
lender shall cooperate with the contracting authority to select a substitute
investor under the provisions of Point b of Clause 1 of Article 39 herein.
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Article 54.
Transfer of shares, contributed capital portions, rights and obligations of PPP
contracts
1. In case where the PPP project
enterprise is established by an investor in the partnership, member partners
shall have the rights to transfer shares or contributed capital portions to
each other, but must ensure the minimum equity ratio of each member as
prescribed in Point a of Clause 2 of Article 41 herein.
2. Investors shall have the right
to transfer shares or contributed capital portions to other investors after
completion of the construction of works with respect to those projects with
construction components, or after switching to the operation stage with respect
to those projects without construction components.
3. The transfer stipulated in
Clause 1 and 2 of this Article must satisfy the following requirements:
a) Such transfer does not lead to
any change in execution of a PPP contract already in effect;
b) Such transfer must comply with
regulations of relevant laws;
c) Such transfer is accepted by the
contracting authority;
d) Such transfer is subject to
agreement between the lender and members of a partnership with regard to
partnership investors.
4. The transferee must satisfy the
following requirements:
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b) They must have financial and
administrative capacity to execute PPP contracts and other related contracts;
c) They are committed to continuing
to carry out the rights and obligations of the transferor in accordance with
the PPP contract and other related contracts.
5. In case where the transfer
specified in Clause 1 and 2 of this Article changes the contents of enterprise
registration, the PPP project enterprise must comply with relevant provisions
of the enterprise law.
Article 55.
Legislation governing PPP contracts
PPP project contract, its annexure
and other relevant documents signed between a Vietnamese state authority and a
PPP project investor or enterprise shall be governed under Vietnamese
legislation. With respect to the matters that are not regulated under
Vietnamese law, the parties may reach specific agreements in a PPP contract on
condition that such agreements are not in breach of basic rules of Vietnamese
law.
Chapter V
IMPLEMENTATION OF PPP CONTRACTS
Section 1.
BUILDING OF WORKS AND INFRASTRUCTURE SYSTEMS
Article 56.
Preparation of building sites
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Article 57.
Formulation, assessment and approval of the design following the basis design
and cost estimate
1. Based on the feasibility study
report and the provisions of the PPP contract, the PPP project enterprise must
perform one or more of the following tasks:
a) Making the construction design
after the basic design. With respect to sub-projects or items using public
investment capital, making the cost estimate and sending it to the
construction-specialized authority in accordance with law on construction for
assessment purposes;
b) Making the design. With respect
to sub-projects or items using public investment capital, making the cost
estimate and sending it to the specialized authority in accordance with other
law for assessment purposes.
2. PPP project enterprises shall
approve designs and cost estimates specified in Clause 1 of this Article and
send the following documents to the contracting authority for monitoring and
supervisory purposes:
a) Approved design documents and
cost estimates;
b) Design and cost estimate
assessment documentation of specialized authorities.
Article 58.
Selection of contractors bidding for execution of PPP projects
PPP project enterprises must adopt
uniform regulations on contractor selection to be applied to enterprises
according to the following principles:
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2. Ensure these regulations do not
affect or negatively impact national defense and security, state secrets,
national or community interests and interests of competent authorities and
contracting authorities;
3. The selected contractor must
satisfy all capacity and experience requirements, and have feasible solutions
for the execution of the package or project; take responsibility for
fulfillment of quality and progress requirements of the package under the
contract signed with the PPP project enterprise, including liability clauses by
which the selected contractor are bound if the quality of the construction work
or infrastructure system does not meet requirements set out in the PPP
contract. PPP project enterprise shall be responsible for the quality and
progress of implementation of the project;
4. Prefer domestic contractors
bidding for the work that domestic contractors can undertake;
5. Only hire foreign workers if
domestic workers are unqualified.
Article 59.
Management and supervision of quality of construction works and infrastructure
systems
1. The PPP project enterprise shall
be responsible for the management and supervision of the quality, and the
acceptance testing of the entire work and infrastructure system in accordance
with law.
2. In the course of development and
construction of the contractual work or infrastructure system, the contracting
authority shall assume the following responsibilities:
a) Conduct the inspection of the
PPP project enterprise's supervision of the process for construction of works
and infrastructure systems;
b) Conduct the inspection of
compliance with engineering and construction procedures, standards and regulations
for works and infrastructure systems;
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d) Request the PPP project
enterprise to demand the contractor’s adjustment or suspension of construction
when seeing that the quality of the work fails to conform to requirements.
3. The contracting authority may
hire a consultant to assist in performing their responsibilities specified in
Clause 2 of this Article.
4. Costs for hiring quality
accreditation consultants and other related costs shall be subject to the
following regulations:
a) In case where the contracting authority
concludes that the quality of the work or infrastructure system fails to meet
the requirements set forth in the contract through the fault of PPP project
enterprise or the contractor, the PPP project enterprise shall be responsible
for payment of these costs;
b) In case where the contracting
authority concludes that the quality of the work or infrastructure system meets
the requirements set forth in the contract, or concludes that it does not meet
the requirements set out in the contract without fault of the PPP project
enterprise or the contractor, the contracting authority shall use the project
implementation expenses specified in Clause 3 of Article 73 in this Law for
payment.
Article 60.
Settlement of expenses for investment in works and infrastructure systems
1. After completing the work or
infrastructure system, the contracting authority shall carry out the settlement
of public capital invested in the PPP project as follows:
a) In case where public capital
invested in a PPP project is managed and used in accordance with Point a of
Clause 5 of Article 70 and Clause 2 of Article 72 of this Law, the contracting
authority and the PPP project enterprise shall carry out the settlement of
public capital invested in the PPP project according to the provisions of law
in the same manner as public investment projects;
b) In case where public capital
invested in a PPP project is managed and used in accordance with Point b of
Clause 5 of Article 70 herein, the contracting authority shall make a financial
statement of disbursements to the PPP project enterprise audited by an auditing
body as a basis for settlement of capital invested in the PPP investment
project. Public capital invested in a PPP project which is qualified for
settlement must not exceed the state capital specified in the contract.
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3. The contracting authority shall
reach an agreement with the PPP project enterprise in the contract on the
selection of a qualified and experienced independent auditing organization to
conduct the audit of capital invested in construction of the work or
infrastructure system.
4. The Government shall elaborate
on this Article.
Article 61.
Certification of completion of a construction work and infrastructure system
1. After completion, the PPP
project enterprise shall undertake the acceptance testing of the work or
infrastructure system in accordance with construction law or other relevant
legislation as a basis to prepare request documentation for completion
certification.
2. Based on the documentation
submitted to request the certification of completion of the work or
infrastructure system specified in Clause 1 of this Article, the contracting
authority shall check before granting the certificate of completion to the PPP
project enterprise. In case where the PPP project enterprise completes the construction
phase ahead of time or saves investment costs, the certification of completion
of the work or infrastructure system shall not affect the contract term or the
rates of prices and charges of public products and services defined in the
contract.
3. The Government shall regulate
documentation requirements and time limit for certification of completion of
works and infrastructure systems.
Section 2.
MANAGEMENT AND OPERATION OF WORKS AND INFRASTRUCTURE SYSTEMS
Article 62.
PPP project management
The management of a construction
work or infrastructure system and other assets during the period of
implementation of PPP projects shall comply with the provisions of this Law,
other regulations of relevant laws and terms and conditions of PPP contracts.
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1. Except for the case specified in
Clause 2 of this Article, PPP project enterprises may operate infrastructure
systems from the date on which the contracting authority certifies their completion
as prescribed in Article 61 of this Law.
2. As for PPP projects using
O&M contracts, PPP project enterprises shall operate works or
infrastructure systems from the effective date of PPP contracts.
Article 64.
Provision of public products and services
1. During the period of operation
of works or infrastructure systems, PPP project enterprises shall assume the
following responsibilities:
a) Implement the rights and
obligations to provide public products and services, and other agreements made
in the contract;
b) Ensure the use of works and
infrastructure systems according to contractual terms and conditions;
c) Equally treat all users of
public products and services provided by PPP project enterprises; prohibit
refusing to provide public products or services to users;
d) Receive and promptly handle
user’s opinions about the quality of public products and services provided by
PPP project enterprises;
dd) Periodically repair and
maintain, and ensure the safe operation of works or infrastructure systems according
to the design or process agreed upon in the contract.
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Article 65.
Public product and service prices and charges
1. Prices or charges of public
products and services, conditions, procedures and adjustments shall be
specified in the PPP contract according to the principle of ensuring the
interests of the investor, the PPP project enterprise, the user and the State,
providing investors or PPP project enterprises facilitation to recover capital
and make profits. The pricing plan and price bracket of public products and
services according to the term of a PPP project contract must specify the
starting price and the price varying in specific periods to ensure accuracy,
completeness, public disclosure and transparency of price factors.
2. The application of measures to support
public product and service prices and charges shall comply with the provisions
of law.
3. The agreement on and adjustment
of public product and service prices and charges for each period in a PPP
project contract must comply with the law on prices and charges.
4. If there is any change in prices
and charges of public products and services, the dissemination of information
about such adjustment shall be regulated as follows:
a) No longer than 10 days before
the application of adjusted prices and charges of public products or services,
contracting authorities shall make public disclosure of information as
prescribed in Article 9 of this Law;
b) PPP project enterprises shall
list adjusted prices and charges of public products and services at the locations
where public products and services are provided in accordance with the law on
prices and charges.
Article 66.
Supervision of quality of public products and services
1. PPP project enterprises must
ensure and take responsibility for the quality of public products and services
under PPP contracts.
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3. In case where the quality of
public products and services does not meet the requirements under a PPP
contract, the contracting authority shall request the PPP project enterprise to
take remedial action within the time limit specified in the contract; in case
the PPP project enterprise’s failure to take, or delay in taking, remedial
action, it shall apply measures to handle violations in the contract.
4. The contracting authority may
hire a consultant to assist in performing their responsibilities specified in
Clause 2 of this Article. Consultant hiring costs shall be paid under the
provisions of Clause 4 of Article 59 in this Law.
Section 3.
TRANSFER OF CONSTRUCTION WORKS OR INFRASTRUCTURE SYSTEMS, AND DISCHARGE OF PPP
CONTRACTS
Article 67.
Transfer of construction works and infrastructure systems
1. The transfer of construction
works and infrastructure systems, and the determination of the quality and
value of construction works and infrastructure systems prior to the transfer
shall comply with the terms and conditions of PPP contracts. The residual value
of the transferred work and infrastructure system shall be incorporated into
state assets and state budget in accordance with the law on management and use
of public assets and state budget.
2. Procedures and processes for
disposal and management of the transferred property shall be subject to
provisions laid down in law on management and use of public assets.
3. The Government shall elaborate
on clause 2 of this Article.
Article 68.
Discharge of PPP contracts
1. PPP contracts shall be discharged
as follows:
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b) In case where a contract is
terminated before expiry as specified in Clause 2 of Article 52 of this Law,
the contracting parties shall certify the completed obligations and the
parties' liabilities for the unfinished work.
2. The time limit for discharge of
a PPP contract shall be agreed upon by the contracting parties, but not
exceeding 180 days from the date on which the contracting parties fulfill their
contractual obligations or the date on which the parties agree to terminate the
contract before its expiry.
3. In case where costs have incurred
when the contract is discharged as prescribed in Clause 1 of this Article, the
discharge of the contract must include the determination of the obligations of
the contracting authority and the PPP project enterprise to the costs incurred.
Chapter VI
PROJECT FUNDING
Section 1.
STATE CAPITAL INVESTED IN A PPP PROJECT
Article 69.
Use of state capital invested in a PPP project
1. State capital may be used for
the following purposes:
a) Supporting the building of
construction works and infrastructure systems as part of a PPP project;
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c) Paying costs of site clearance,
site clearance compensation, support, resettlement; costs of support for
construction of temporary works;
d) Compensating for the reduced
revenue;
dd) Covering costs and expenses
incurred from performing activities by competent authorities, contracting
authorities, PPP project preparation units, and bid solicitors within their
duties as specified in Article 11 of this Law;
e) Covering costs and expenses of
PPP Project Assessment Boards and its subordinate units assigned to conduct the
evaluation of PPP projects.
2. The proportion of state capital
participating in a PPP project as prescribed at Points a and c of Clause 1 of
this Article must not exceed 50% of the project's total investment. As for
projects with many component projects, including those component projects
developed according to the PPP investment approach, the state capital ratio
specified in this Clause shall be determined in proportion to the total
investment in such component projects.
3. The Government shall elaborate
on the use and management of state capital invested in PPP projects.
Article 70.
State capital used for supporting the building of construction works and
infrastructure systems
1. State capital used for
supporting the building of construction works or infrastructure systems may be
used for supporting project implementation during the construction phase in
order to increase the financial efficiency of the project.
2. The ratio of state capital used
for supporting the building of construction works or infrastructure systems
belonging to PPP projects shall be determined on the basis of the preliminary
financial plan included in the pre-feasibility study report when an investment
policy is granted.
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4. State capital used for
supporting the building of construction works and infrastructure systems shall
be allocated from the following funding sources:
a) Public investment capital
prescribed under law on public investment;
b) Value of public assets
prescribed under law on use and management of public assets.
5. Use and management of State
capital used for supporting the building of construction works and
infrastructure systems shall be allocated from sources of public investment
capital according to one of the following approaches:
a) Splitting a PPP project into
subprojects. The use and management of state capital shall be subject to laws
on public investment;
b) Aligning state capital with
specific items according to the rates, value, progress and conditions specified
under the contract.
Article 71.
State capital used for paying PPP project enterprises supplying public products
and services
State capital-funded payments to
PPP project enterprises which are used in BTL or BLT contracts on the basis of the
quality of public products and services shall be allocated from state capital
invested in PPP projects and other legal capital according to the law.
Article 72.
State capital paid for compensation, site clearance, support, resettlement;
support for construction of temporary works
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2. Based on the size and
characteristics of each project, the contracting authority shall consider
separating the state capital used for compensation, site clearance, support and
resettlement; support for the construction of temporary works into component
projects or sub-projects, in compliance with the law on public investment and
the law on land.
Article 73.
Costs of competent authorities, contracting authorities, PPP project
preparation units, bid solicitors, PPP project assessment boards, units
assigned to evaluate PPP projects
1. Project preparation costs of
competent authorities, PPP project preparation units; expenses for the
evaluation conducted by PPP Project Assessment Boards and the units assigned to
the task of evaluating PPP projects; expenses for organization of the investor
selection or signing of contracts by competent authorities or bid solicitors
shall be covered by public investment capital, other lawful capital sources,
and shall be included in the total investment in each project.
2. The selected investor shall be
responsible for reimbursing expenses specified in Clause 1 of this Article to
the state budget in accordance with the law on state budget or legal capital
used for the project preparation.
3. Expenses for project
implementation after signing a contract by a competent authority or a
contracting authority shall be covered by their regular capital.
Article 74.
Budgeting for public investment capital to be used in a PPP project
Budgeting for public investment
capital to be used in a PPP project shall be subject to the following
regulations:
1. Based on an investment policy
decided by a competent authority, public investment capital used in a PPP
project shall be incorporated in the medium-term public investment budget plan;
2. Based on the medium-term public
investment plan, the feasibility study report approved by a competent
authority, and results of investor selection, public investment capital used in
a PPP project shall be integrated into the annual public investment plan;
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4. In case where a PPP project
developed and executed under a BTL contract or BLT contract uses public
investment capital to pay a PPP project enterprise, integration of public
investment capital into the real annual and medium-term public investment plan
shall be subject to the provisions of Clause 1 and 2 of this Article. Based on
the PPP contract term, the public investment capital share may be dispensed
over the next medium terms.
Article 75.
Estimation of regular expenditures and legitimate revenues retained regular
expenditures of state regulatory authorities and public service units
1. Based on an investment policy
decision, the feasibility study report approved by the competent authority and
results of investor selection, the contracting authority shall prepare the
annual budget estimate of regular capital and legitimate revenues retained as
regular expenditures of state authorities and public service units to pay PPP
project enterprises in accordance with the law on state budget.
2. For regular expenditures
specified in Clause 3 of Article 73 in this Law, competent authorities and
contracting authorities shall make an annual budget estimate, submitting it to
competent authorities to seek their approval in accordance with law on state
budget.
Section 2.
CAPITAL USED FOR IMPLEMENTATION OF PPP PROJECTS BY INVESTORS OR PPP PROJECT
ENTERPRISES
Article 76.
Arrangement of finances for execution of PPP projects
1. Investors and PPP project
enterprises shall be responsible for contributing equity capital, raising loan
capital and other legal funds to implement projects under terms and conditions
of PPP contracts. Total amount borrowed through various lending forms must not
exceed total loan amount specified in a PPP contract.
2. Within 12 months from the
contract signing date, the investor and PPP project enterprise must complete
the financial arrangement; as for projects subject to investment policy
decisions of the National Assembly or the Prime Minister, this time limit may
be extended, but not exceeding 18 months.
3. Actions to be taken in the event
that the investor or the PPP project enterprise fail to make financial
arrangement within the time limit specified in Clause 2 of this Article must be
specified in the invitation for bid.
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1. Investor's equity contribution
must be at least 15% of total investment in a project, excluding state capital
specified in Article 70 and 72 of this Law.
2. Investors must make equity
contribution according to the schedule agreed upon in the PPP contract.
Article 78.
Issuance or offering of corporate bonds of PPP project enterprises
1. PPP project enterprises may
issue and buy back separate bonds they have issued under the provisions of this
Law, the law on enterprises and securities to raise capital for the
implementation of PPP projects; shall be prohibited from the private issuance
of convertible bonds and warrant-linked bonds.
2. The issuance of bonds as per
Clause 1 of this Article must satisfy the following conditions:
a) The amount of capital raised
through the bond issue shall not exceed the value of the loan amount determined
in the PPP contract;
b) Funds raised through the bond
issuance cannot be used for any other purpose than the project implementation
under PPP project contracts or for the purpose of restructuring of corporate
debts;
c) PPP project enterprises must
open an escrow account to receive money from bond purchases. Disbursement
of funds acquired from issuance of bonds shall be subject to point b of this
clause.
3. If a PPP project enterprise has
already operated for less than 1 year, when issuing bonds as prescribed in
Clause 1 of this Article, it shall be exempt from the requirement concerning
submission of the financial statement of the year preceding the year of
issuance which is audited according to regulations of the law on enterprises.
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Chapter VII
INVESTMENT INCENTIVE AND GUARANTEE
Article 79.
Investment incentive
Investors and PPP project
enterprises shall be entitled to tax, land use, land rental and other
incentives in accordance with the law on taxes, land, investment and other
provisions of relevant laws.
Article 80.
Investment guarantee
1. Investors and PPP project
enterprises shall be entitled to investment guarantees in accordance with this
Law and investment legislation.
2. Guarantee for the right to
access land, rights to use land and other public property shall be prescribed
as follows:
a) PPP project enterprises shall be
assigned land or leased land by the State or permitted to use other public assets
for the performance of PPP contracts in accordance with the law on land and the
law on management and use of public assets;
b) The purpose of using land shall
be protected from against any change that may arise during the entire contract
term, even if the lender exercises their rights prescribed in Article 53 of
this Law.
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a) PPP project enterprises may use
public works and other auxiliary ones for the purposes of implementation of
projects in accordance with laws;
b) In case where there is any
scarcity of public services or any limitation of users of public facilities,
PPP project enterprises shall be given priority to provide public services or
shall be preferred to have the right to use public works for the project
implementation purpose;
c) The competent authority shall be
responsible for assisting PPP project enterprises in carrying out the necessary
procedures so that these enterprises can be prioritized to have access to
public services and public works.
4. Guarantee for the right to
mortgage property, the right to commercially operate construction works and
infrastructure systems shall be subject to the following regulations:
a) PPP project enterprises may
provide their assets, their rights to use land and their rights to commercially
operate construction works and infrastructure systems as a mortgage provided to
lenders in accordance with land and civil law. The mortgage period must not
exceed the contract term, unless otherwise agreed in the contract;
b) A mortgage agreement on the
property, the right to operate infrastructure work or system must be made in
writing between the lender and the contracting party;
c) Mortgaging assets or the rights
to commercially operate construction works or infrastructure systems must not
affect the objectives, scale, technical standards, project implementation
schedule, other terms and conditions as agreed upon in the contract.
5. Contract signing authorities and
competent authorities shall be responsible for cooperating with local
authorities of the places where PPP projects are located to ensure security,
order and safety for people and property of PPP project enterprises and
contractors in the process of implementing PPP projects.
Article 81.
Foreign currency balancing guarantee for significant PPP projects
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2. If PPP project enterprises
implementing the projects specified in Clause 1 of this Article have exercised
the right to buy foreign currency to meet the needs of current, capital and
other transactions, or transfer capital, profits, or other liquidated
investments remitted abroad in accordance with the law on foreign exchange
management, and the foreign currency market cannot, however, accommodate their
legal foreign currency demands, then they shall be entitled to use no more than
30% of Vietnamese-dong revenues generated from each project after deduction of
Vietnamese-dong spending amounts as a guarantee for foreign currency balancing.
Article 82.
Mechanism for sharing of increased and reduced revenues
1. When the actual revenue is 125%
higher than the revenue specified in the financial plan under a PPP project contract,
the investor and the PPP project enterprise will share with the State 50% of
the difference between the actual revenue and 125% of revenue in the financial
plan. The increased revenue may be shared after adjustment in the prices and
costs of public products and services or the PPP contract term according to the
provisions of Article 50, 51 and 65 of this Law and must be audited by the
State Audit.
2. When the actual revenue is 75%
lower than the revenue specified in the financial plan under a PPP project
contract, the State will share with the investor or PPP project enterprise 50%
of the difference between 75% of revenue in the financial plan and the actual
revenue. Sharing of reduced revenues may occur if the following requirements
are satisfied:
a) Projects are developed and
executed under BOT, BTO or BOO contracts;
b) Changes in relevant planning,
policies and laws result in a reduction in revenue;
c) Measures to adjust prices and
charges of public products and services, and PPP contract terms, according to
the provisions of Articles 50, 51 and 65 of this Law, have been fully taken,
but the minimum revenue requirement of 75% has not been met yet;
d) The reduced revenue has been
audited by the State Audit.
3. The mechanism for sharing of the
reduced revenue specified in Clause 2 of this Article must be determined
according to the decision on investment policy. Expenses for dealing with the
revenue reduction sharing mechanism shall be covered by the central
government’s budget reserve with respect to the projects falling under the
authority to grant investment policy decisions of the National Assembly, the
Prime Minister, Ministers, heads of central agencies or other bodies, or by the
local government’s budget reserve with respect to the projects falling under
the authority to grant investment policy decisions of provincial People's
Councils.
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5. The Government shall elaborate
on this Article.
Chapter VIII
EXAMINATION, INSPECTION, STATE AUDIT AND OVERSIGHT OF
PPP INVESTMENTS
Section 1.
EXAMINATION, INSPECTION AND STATE AUDIT OF PPP INVESTMENTS
Article 83.
Examination of PPP investments
1. Subject matters of the
examination of PPP investments shall include:
a) Issuance of instructional
documents regarding PPP investment approach by competent authorities;
b) Investment preparation;
organization of investor selection activities; conclusion and execution of
contracts;
c) Other activities related to PPP
investment.
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Article 84.
Inspection of PPP investments
1. The inspection of PPP
investments is a specialized inspection carried out in accordance with the
inspection law.
2. The inspection of PPP
investments shall be aimed at competent authorities, contracting authorities,
investors, PPP project enterprises and entities, organizations and individuals
involved in PPP investment activities regulated under this Law.
Article 85.
State audit of PPP investments
1. Auditing the management and use
of public finance, public assets and activities related to the management and
use of public finance and public assets invested in PPP projects in accordance
with the law on state audit.
2. Auditing the process for
implementation of the mechanism for sharing of increased and reduced revenues
in accordance with provisions laid down in Article 82 herein.
3. Auditing all values of property
of PPP projects upon transfer thereof to the State.
Section 2.
OVERSIGHT OF PPP INVESTMENTS
Article 86.
Oversight carried out by State regulatory authorities in charge of PPP
investments
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2. State regulatory authorities in
charge of PPP investments at the local level shall supervise the processes for
implementation of PPP projects prescribed at Point d of Clause 3 of Article 4
of this Law.
Article 87.
Overseen subjects
1. Invitation for bid.
2. Investor section results.
3. Implementation of PPP contracts.
4. Results of inspection of quality
of construction works and infrastructure systems under the provisions of point
c of clause 2 of Article 59 herein.
5. Results of assessment of quality
of public products and services prescribed under the provisions of clause 2 of
Article 66 herein.
6. Other matters to be overseen at
the request of the National Assembly or the Prime Minister in the cases
specified in Clause 1 of Article 86 of this Law, or of the provincial People's
Councils in the cases specified in Clause 2 of Article 86 of the Law.
Article 88.
Oversight by Vietnam Fatherland Front and community
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Chapter IX
DUTIES, POWERS AND RESPONSIBILITIES OF STATE
REGULATORY AUTHORITIES FOR PPP INVESTMENTS
Article 89.
Duties and powers of the Government and the Prime Minister
1. The Government shall have the following
rights and responsibilities:
a) Carry out the uniform state
management of PPP investments;
b) Issue, within their
jurisdiction, or request competent authorities to issue, legislative documents
regarding PPP investments;
c) Examine, inspect and supervise
the implementation of PPP investments.
2. The Prime Minister shall have
the following duties and powers:
b) Issue, within their
jurisdiction, legislative documents regarding PPP investments;
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Article 90.
Duties and powers of the Ministry of Planning and Investment
1. Perform the functions of an authority
vested with powers to manage PPP investments at the central level, take
responsibility to the Government for the state management of PPP investment
nationwide.
2. Issue, within their
jurisdiction, or request competent authorities to issue, legislative documents
regarding PPP investments.
3. Take charge of, and cooperate
with competent authorities in, carrying out the examination, inspection and
supervision; annually synthesize and evaluate the implementation of PPP
projects nationwide.
4. Building and managing
communication systems and databases regarding PPP investment activities.
5. Implement other duties and
powers as stipulated by law.
Article 91.
Duties and powers of the Ministry of Finance
1. Issue, within their
jurisdiction, or request competent authorities to issue, legislative documents
regarding financial mechanisms to be applied to PPP investments.
2. Take charge of formulating and
implementing the mechanism for sharing of the reduced or increased revenues
arising from the projects falling under the investment policy decision-making
competence of the National Assembly, the Prime Minister, Ministers, Heads of
central or other authorities.
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Article 92.
Duties and powers of Ministries, central and other authorities
1. Carry out the management of and
guidance on PPP investments falling within their remit.
2. Implement responsibilities of
competent authorities specified in Article 94 of this Law with respect to PPP
projects under their jurisdiction.
3. On an annual basis, synthesize,
evaluate and report on the implementation of PPP projects falling within their
remit.
4. Implement other duties and
powers as stipulated by law.
Article 93.
Duties and powers of provincial People’s Committees
1. Perform the functions of an
authority accorded the state management of PPP investments at their localities.
2. Perform responsibilities of
competent authorities specified in Article 94 of this Law for PPP projects
falling under their jurisdiction; decide to terminate or suspend PPP contracts
for projects falling under the authority to issue investment policy decisions
of provincial People's Councils.
3. On an annual basis, synthesize,
evaluate and report on the implementation of PPP projects falling within their
remit.
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5. Implement other duties and
powers as stipulated by law.
Article 94.
Responsibilities of competent authorities
1. Undertake the preparation of
pre-feasibility study reports and feasibility study reports for PPP projects,
the selection of investors, negotiation and conclusion of PPP contracts according
to their competence specified in this Law.
2. Cancel or suspend the bids,
refuse to recognize the results of investor selection or declare that decisions
of bid solicitors are null and void when detecting any violation of the law on
PPP investment, investor selection or other relevant laws.
3. Decide to terminate or suspend
PPP contracts for projects falling within their authority to issue investment
policy decisions in accordance with this Law.
4. Request bid solicitors and
contracting authorities to provide documents and records necessary for the
examination, inspection, supervision, monitoring; deal with petitions and
sanction PPP investment-related violations.
5. Pay compensation in accordance
with laws.
6. Give explanations about the
implementation of the provisions of this Article at the request of superior
authorities, examination, inspection, auditing, supervision or state regulatory
authorities in charge of PPP investment affairs.
7. Publicize information about PPP
projects; periodically report to central regulatory authorities in charge of
PPP investment affairs on the implementation of PPP projects under their
jurisdiction.
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Chapter X
HANDLING OF PETITIONS, SETTLEMENT OF DISPUTES AND
HANDLING OF VIOLATIONS
Article 95.
Handling of petitions arising from investor selection activities
1. If there are grounds for
presuming that their legitimate rights and interests are affected, investors
shall have the following rights:
a) Submit petitions regarding
investor selection process and results to bid solicitors and competent
authorities according to the petition settlement process specified in Article
96 of this Law;
b) Initiate Court proceedings
within the statute of limitations in accordance with civil law.
2. The bid solicitor or competent
authority shall not consider settling the petition if the investor has
initiated the court proceedings; where the case is considered for settlement
according to the process specified in Article 96 of this Law, the authority
currently handling the petition shall notify the termination of the
consideration and settlement of the petition.
Article 96.
Procedures for handling of petitions arising from investor selection activities
1. Procedures for settlement of
petitions about issues arising in the process of selection of investors shall
be subject to the following regulations:
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b) The bid solicitor must send a
written document stating settlement of the petition to the investor within 07
working days from the date of receipt of the written petition from the
investor;
c) In case where the bid solicitor
does not have a written document stating settlement of the petition or the
investor disagrees about petition settlement results, the investor shall have
the right to send the petition to the competent authority within 05 working
days from the deadline for sending their reply or the date of receipt of the
bid solicitor's written document on settlement of the petition;
d) The competent authority must
send a written document stating settlement of the petition to the investor
within 07 working days of receipt of the written petition from the investor.
2. Procedures for settlement of
petitions pertaining to investor selection results shall be subject to the
following regulations:
a) The investor must send a written
petition to the bid solicitor within 10 working days of receipt of the
notification of investor selection results;
b) The bid solicitor must send a
written document stating settlement of the petition to the investor within 15
working days of receipt of the written petition from the investor;
c) In case where the bid solicitor
does not have a written document stating settlement of the petition or the
investor disagrees about petition settlement results, the investor shall have
the right to send the written petition to the competent authority and the
standing organ of the Petition Settlement Advisory Board within 05 working days
from the deadline for sending their reply or the date of receipt of the bid
solicitor's written document on settlement of the petition.
The central-level Petition
Settlement Advisory Board shall be established by the Minister of Planning and
Investment; the Petition Settlement Advisory Board at the Ministry, central
authority, other body level shall be established by Ministers, heads of central
authorities or other bodies; the Petition Settlement Advisory Board at the
local level shall be established by the President of the provincial People's
Committee;
d) Upon receipt of the written
petition, Petition Settlement Advisory Boards shall have the right to request
investors or bid solicitors and concerned entities to provide information to
consider and report in writing to competent authorities on methods and contents
of the response to the petition within 30 days of receipt of the written
petition from the investor;
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e) The competent authority must
issue the decision on settlement of the petition regarding results of investor selection
within 10 working days of receipt of the written opinion from the Petition
Settlement Advisory Board.
3. If an investor submits a
petition directly to a competent authority without compliance with the petition
settlement procedures specified in this Article, the written petition shall not
be considered for further action.
Article 97.
Dispute settlement
1. Disputes between competent
authorities or contracting authorities and investors or PPP project
enterprises, and disputes between PPP project enterprises and economic
organizations involved in executing projects shall be resolved through
negotiation, mediation, arbitration or court.
2. Disputes between competent
authorities, contracting authorities and domestic investors or PPP project
enterprises established by domestic investors; disputes between domestic
investors; disputes between domestic investors or PPP project enterprises
established by domestic investors and Vietnamese economic organizations shall
be resolved by Vietnamese Arbitration or Court.
3. Disputes between competent
authorities, contracting authorities and foreign investors or PPP project
enterprises established by foreign investors shall be settled at the Vietnamese
Arbitration or the Vietnamese Court, unless otherwise agreed upon under
contracts or treaties of which the Socialist Republic of Vietnam is a member.
4. Disputes between investors,
including at least one foreign investor; disputes between investors or PPP
project enterprises and foreign organizations or individuals shall be settled
at one of the following entities and organizations:
a) Vietnamese Arbitration;
b) Vietnamese Court;
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d) International Arbitration;
dd) Arbitration established under
agreements between disputing parties’ agreement.
5. Disputes settled through
arbitration prescribed in PPP and other relevant contracts shall be deemed as
commercial disputes. Foreign arbitral awards shall be recognized and enforced
in accordance with the law on recognition and enforcement of foreign arbitration’s
awards in Vietnam.
Article 98.
Handling of violations arising from PPP investments
1. Prohibit organizations and
individuals that commit acts referred to in Article 10 of this Law from
participation in PPP investments.
2. Cancel or suspend the bids, refuse
to recognize the results of investor selection or declare that decisions of
competent authorities, contracting parties or bid solicitors are null and void
when detecting any violation against this Law and other regulations of relevant
laws.
3. Cancel or suspend contracts
whenever detecting any breach of contract or regulations laid down herein and
other relevant legislation.
4. In addition to sanctions against
violations prescribed in clause 1, 2 and 3 of this Article, entities and
persons committing violations against the law on PPP investments shall be
disciplined or subject to administrative penalties or criminal legal
proceedings, depending on the nature and extent of their violations.
5. The Government shall elaborate
on this Article.
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IMPLEMENTATION PROVISIONS
Article
99. Amendments and supplements to relevant laws
1. Amending and supplementing
certain Articles of the Law on Procurement No. 43/2013/QH13, amended or
supplemented under the Law No. 03/2016/QH14, 04/2017/QH14 and 40/2019/QH14,
shall be as follows:
a) Amending and supplementing
clause 3 of Article 1 as follows:
“3. Selection of the investor in
implementation of investment projects in which land is used;”;
b) Amending and supplementing
clause 2 of Article 3 as follows:
“2. In case where it is necessary
to select contractors to provide input materials, fuels, substances, supplies,
consulting services or non-consulting services to ensure the continuity of
production, sale and procurement activities to maintain the regular operation
of state enterprises, enterprises must adopt regulations on contractor
selection to be uniformly applied internally on the basis of ensuring fairness,
transparency and economic efficiency.”;
c) Amending and supplementing
clause 10 of Article 4 as follows:
“10. PPP project enterprise refers
to an enterprise established by an investor to serve the purpose of executing
PPP projects where land is used.”;
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“12. Bidding refers to the process
of selecting a contractor to enter into and execute a contract for the
provision of consulting services, non-consulting services, procurement of goods
or construction; selecting investors to sign and execute investment contracts
for execution of projects where land is used on the basis of ensuring
competition, fairness, transparency and economic efficiency.”;
dd) Amending and supplementing
clause 4 of Article 6 as follows:
“4. Bidding investors must be
legally and financially independent of the parties hereunder:
a) Tender consulting contractors in
investment projects using land until the date of conclusion of project
contracts;
b) Competent regulatory
authorities, bid solicitors.”;
e) Amending and supplementing Point
i of Clause 1 of Article 8 as follows:
“i) List of investment projects
using land;”;
g) Amending and supplementing
clause 2 of Article 15 as follows:
“2. Investment projects using land,
except for cases where investment is restricted in accordance with the
investment law.”;
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2. Amending and supplementing
Clause 4 of Article 40 in the Law on Public Investment No. 39/2019/QH14 as
follows:
“4. Principles, authority over,
contents of, procedures and processes for design and evaluation of and decision
on feasibility study reports for PPP projects shall be subject to law on PPP
investment.”.
3. Amending and supplementing
Clause 2 of Article 20 in the Law on Prices No. 11/2012/QH13 already amended
and supplemented by the Law No. 61/2014/QH13 as follows:
“2. Promptly adjust prices whenever
the price factors change. In particular, prices of public products and services
created by public-private partnership investment projects shall be adjusted
over periods of time as provided in project contracts.
4. Amending and supplementing
certain Articles of the Law on Support for Small and Medium Enterprises No.
04/2017/QH14 as follows:
a) Amending and supplementing
clause 2 of Article 12 as follows:
“2. Ministries, Ministerial-level
agencies and provincial People’s Committees may establish incubation
facilities, engineering facilities and co-work spaces. Enterprises and
organizations investing in other business activities may set up incubation
facilities, engineering facilities and co-work spaces.”;
b) Amending and supplementing
clause 1 of Article 13 as follows:
“1. Ministries, Ministerial-level
agencies and provincial People’s Committees may establish product distribution
chains. Enterprises and other investment or business organizations may
establish product distribution chains.”.
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“2. Hydrometeorology public service
organizations shall be entitled to provide hydro-meteorological services
according to their functions and tasks prescribed by competent state
authorities in accordance with this Law and other relevant laws; shall be
entitled to use hydro-meteorological products and services provided by other
organizations or individuals on the basis of placement of orders or agreements
according to the provisions of law.
Other organizations and individuals
may provide hydro-meteorological services in accordance with this Law and
relevant laws.”.
6. Amending and supplementing
certain Articles of the Law on Housing No. 65/2014/QH13, already amended and
supplemented by the Law No. 40/2019/QH14, as follows:
a) Amending and supplementing
clause 3 of Article 36 as follows:
“3. The State may directly invest
in the construction of houses with state budget capital, national bonds, other
bonds, official development assistance capital, concessional loans from donors,
and state-owned development investment credit funds on the land areas
determined for construction of resettlement houses according to approved
planning schemes to serve the purposes of lease, lease-purchase or sale thereof
to resettlement beneficiaries.";
b) Amending and supplementing
clause 1 of Article 53 as follows:
“1. The State may invest in the
construction of social housing by using state budget capital, national bonds,
other bonds, official development assistance capital, concessional loans from
donors, and state-owned development investment credit funds on the land areas
determined for construction of social housing in accordance with regulations
for lease and lease-purchase purposes.";
c) Repealing Point b of Clause 3 of
Article 40 and Point b of Clause 1 of Article 114.
7. Repealing Point c of Clause 4 and
Clause 5 of Article 30, Clause 4 of Article 51 in the Law on Use and Management
of Public Assets No. 15/2017/QH14.
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1. This Law shall enter into force
on January 1, 2021, except the regulations specified in Clause 6 of Article 101
herein.
2. The Government and competent
regulatory authorities shall elaborate on Clauses and Articles set forth in
this Law.
Article 101.
Transitional provisions
1. The projects in the sectors
prescribed in clause 1 of Article 4 in this Law and meeting the minimum total
investment requirements prescribed in clause 2 of Article 4 herein shall be
subject to the following regulations:
a) In case where an investment
policy decision has been made by a competent authority before the effective
date of this Law, the next steps shall be taken in accordance with this Law. In
case where the investment policy needs to be adjusted, regulations laid down in
Article 18 herein shall be observed;
b) In case where the feasibility
study report has been approved by a competent authority before the effective
date of this Law, next steps shall be taken in accordance with this Law without
having to go through the project approval procedures as per this Law; the
contents specified in Clause 6 of Article 23 of this Law must be additionally
approved in case investor selection has not yet been organized;
c) As for projects falling into the
cases specified at Points a and b of this Clause, if the state capital
contribution ratio in a PPP project is greater than the rate specified in
Clause 2 of Article 69 of this Law, any adjustment in the state capital ratio
shall not be required.
2. Projects that are not in the
sectors specified in Clause 1 of Article 4 of this Law or fail to meet the
minimum total investment requirements specified in Clause 2 of Article 4 of
this Law, and projects without the prequalification requirement in which
investor prequalification results have not been approved yet or the invitations
for bid or requests for proposal have not yet been issued, until the effective
date of this Law shall be halted.
3. PPP projects in which investor
selection is occurring shall be subject to the following regulations:
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b) In case where the invitation for
bid or the request for proposal has been issued before the effective date of
this Law but the bid is closed after December 31, 2020, the bid solicitor shall
be responsible for extending the bid closing time to improve the invitation for
bid or the request for proposal in accordance with this Law provided that such
action does not result in any adjustment of the approved investment policy and
feasibility study report;
c) In case where the results of
investor selection are available, but the contract negotiation and conclusion
happens after the effective date of this Law, the contracting authority shall
negotiate and sign the contract, based on the results of investor selection,
bidding documents, proposal, invitation for bid and request for proposal in
accordance with this Law without resulting in any adjustment in the approved
investment policy and feasibility study report.
4. Project contracts signed before
the effective date of this Law may continue to be executed under contractual
terms and conditions.
5. From the effective date of this
Law, the transition of Build - Transfer (BT) contracts shall be as follows:
a) Projects where bidding documents
or requests for proposal have not been issued yet shall be suspended; in case
where bidding documents or requests for proposal have already been issued, they
shall be continued based on the invitations for bid, requests for proposals and
legislative regulations at the time of issuance of these invitations for bid or
requests for proposal;
b) With regard to projects where
investor selection results are obtained before the effective date of this Law,
the contracting authority shall negotiate and sign the contract, based on the
results of investor selection, bidding documents, proposals, invitations for
bid and requests for proposal, and legislative regulations valid at the time of
issuance of invitations for bid or requests for proposal;
c) For projects which have signed
contracts before the effective date of this Law, project execution and payment
under regulations of BT contracts and legislative regulations valid at the time
of contract conclusion shall be continued;
d) Implementation of new BT
projects shall be disapproved.
6. Implementation of the projects
under BT contracts that have not been approved for investment policy yet shall
be suspended from August 15, 2020.
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This Law is passed in the 9th
plenary session of the XIVth National Assembly of the Socialist
Republic of Vietnam held on June 18, 2020.
NATIONAL ASSEMBLY’S CHAIRWOMAN
Nguyen Thi Kim Ngan