Circular No. 02/2016/TT-BKHĐT guiding the preliminary selection of projects, preparation, review, approval of project proposal and feasibility study report for public-private partnership (PPP) investment projects.

CIRCULAR

Guidelines for preliminary selection of projects, preparation, review, and approval of project proposal and feasibility study report for public-private partnership investment projects

Based on the Investment Law No. 67/2014/QH13 dated November 26, 2014;

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Pursuant to the Law on Public Investment No. 49/2014/QH13 dated June 18, 2014;

Based on the Construction Law No. 50/2014/QH13 dated June 18, 2014;1The Minister of Planning and Investment issues this Circular guiding the preliminary selection of projects, preparation, review, and approval of project proposals and feasibility study reports for public-private partnership investment projects.

Pursuant to the Bidding Law dated November 26, 2013;of the Government stipulating functions, tasks, powers, and organizational structure of the Ministry of Home AffairsLaw on Procurement No. 43/2013/QH13 dated November 26, 2013;

Article 1. This Circular guides the preliminary selection of projects; preparation, review, and approval of project proposals; preparation, review, and approval of feasibility study reports for public-private partnership investment projects within the scope regulated by Article 1 of Decree No. 15/2015/NĐ-CP dated February 14, 2015 of the Government on public-private partnership investment.1Article 2. This Circular applies to agencies, organizations, and individuals involved in the preliminary selection of projects, preparation, review, and approval of project proposals and feasibility study reports for public-private partnership investment projects.

Pursuant to Decree No. 15/2015/NĐ-CP dated February 14, 2015 of the Government on public-private partnership investment;

Pursuant to Decree No. 116/2008/ND-CP dated November 14, 2008 of the Government stipulating the functions, tasks, powers, and organizational structure of the Ministry of Planning and Investment;

Public-Private Partnership Projectướin this Circular refers to a public-private partnership investment project.

Article 1. Scope of Regulation and Applicability

Project Preparation Unit

is the unit assigned by ministries, ministerial-level agencies, or provincial People's Committees to prepare project proposals, feasibility study reports, and other related tasks.

Article 2. Interpretation of Terms

1. Lead Unit Organizing Review of Project Proposals and Feasibility Study Reports (hereinafter referred to as the reviewing unit) is the unit established or assigned to manage public-private partnership activities according to Clause 2, Article 7 of Decree No. 15/2015/NĐ-CP.

2. Article 4. Project Proposal is a report prepared in accordance with Clause 11, Article 3 of Decree No. 15/2015/NĐ-CP. In cases where state capital participates in implementing the project, the project proposal is equivalent to the Preliminary Feasibility Study Report (for Group A projects) or the Report Proposing Investment Policy Approval (for Group B and C projects) under the laws on state investment.

3. Article 3. Preliminary Selection of Projects1. Principles of Preliminary Project Selection

a) The preliminary selection of projects aims to accurately identify infrastructure construction, equipment supply, and public service projects to be studied for investment through the public-private partnership model. b) Selected projects must meet the criteria stipulated in Clause 2 of this Article.

2. Criteria for Preliminary Project Selection

a) Projects selected preliminarily must fully meet the following criteria:

- Consistent with sectoral development plans, regional plans, and local socio-economic development plans;

- Consistent with the investment fields specified in Article 4 of Decree No. 15/2015/NĐ-CP and are priority projects of ministries, ministerial-level agencies, or provincial People's Committees;

- Possess revenue generation potential to cover investor costs, prioritizing projects generating revenue from business operations.

b) In addition to the criteria specified in point a of this clause, based on the level of information available for each project, additional criteria may be considered for priority preliminary selection of projects:

- Having investors interested;

- High demand for services;

- Favorable conditions for implementation (land clearance completed; ancillary works and connections already constructed; raw materials, machinery, and technology readily available in the market);

- Other relevant factors (if any).

3. Units under ministries, ministerial-level agencies, specialized agencies under provincial People's Committees, or district People's Committees shall proactively research in accordance with Clauses 1 and 2 of this Article and submit to the Minister, heads of ministerial-level agencies, and Chairmen of provincial People's Committees for permission to prepare project proposals.

4. Based on the approval for preparing project proposals through the public-private partnership model as stipulated in Clause 3 of this Article, competent authorities under the laws on state investment shall allocate state investment funds or other lawful funds to prepare, review, and approve project proposals and feasibility study reports.

- There are favorable factors for implementing the investment (the project has completed land clearance; auxiliary works and connections have been constructed; raw materials and machinery technology are available on the market);

- Other related factors (if any).

3. Organizations under the Ministry, agencies at the level of ministries, specialized agencies under provincial People's Committees or district People's Committees shall proactively study in accordance with Clause 1 and Clause 2 of this Article, and submit to the Minister, Heads of agencies at the level of ministries, and Chairmen of provincial People's Committees for permission to prepare project proposals.

4. Based on the approval regarding the preparation of project proposals in the form of PPP as stipulated in Clause 3 of this Article, the competent authority under the law on public investment shall allocate state capital or other lawful capital to prepare, review, approve project proposals, and feasibility study reports.

Article 4. Establishing, reviewing, and approving project proposals in accordance with the provisions of Section 1, Chapter III of Decree No. 15/2015/NĐ-CP.

1. Detailed procedures

a) Establishing project proposals;

b) Reviewing project proposals;

c) Proposing and approving the State's investment capital participation in the implementation of the project (if applicable);

d) Approving project proposals;

đ) Announcing projects.

2. Establishing project proposals

a) The project preparation unit shall establish project proposals in accordance with Article 16 of Decree No. 15/2015/NĐ-CP, based on the guidance provided in Appendix I attached to this Circular. For projects with construction components, the project proposal shall include preliminary design (basic design for Class C projects) in accordance with laws on construction. For projects without construction components, the project proposal shall include preliminary design (basic design for Class C projects) in accordance with relevant sectoral laws.

b) The project preparation unit shall submit one set of project proposal files to the Minister, Heads of Ministries and Heads of provincial People's Committees, and simultaneously send four sets of project proposal files to the review units.

c) The project proposal files shall include:

- Document requesting approval of the project proposal: The content of the document requesting approval includes the legal basis for establishing the project proposal, a description of the main contents of the project proposal, and recommendations;

- Draft project proposal;

- Approval opinion of the authorized person regarding the establishment of the project proposal under the Public-Private Partnership (PPP) form;

- Relevant documents and legal texts.

3. Reviewing project proposals

a) The review unit shall accept the project proposal files from the project preparation unit and organize reviews in accordance with the provisions of Points b, c, d, and đ of this Clause.

b) The review unit shall organize the collection of opinions from relevant agencies and units on the project proposal through written consultation, and may hold a review meeting if necessary. The review unit must obtain the review opinion on the preliminary design (basic design for Class C projects) from the specialized agency on construction in accordance with construction laws for projects with construction components, or from the specialized agency in accordance with relevant sectoral laws for projects without construction components.

c) The review unit shall prepare a report on the review of the project proposal based on the guidance provided in Appendix II attached to this Circular. The project proposal recommended for approval by the review unit must fully meet the conditions stipulated in Article 15 of Decree No. 15/2015/NĐ-CP.

d) The review unit shall submit the project proposal review files to the Minister, Heads of Ministries, and Heads of provincial People's Committees, including the following documents:

- Report on the review of the project proposal;

- Draft project proposal;

- Relevant documents and legal texts.

đ) The maximum time limit for reviewing the project proposal is 25 days from the date of receipt of all files, excluding the time limit for approving the State's investment capital participation in the project as stipulated in Clause 4, Article 17 of Decree No. 15/2015/NĐ-CP.

4. For projects using State investment capital, Ministries, equivalent Ministries, and provincial People's Committees shall report to the competent authority to approve the State's investment capital participation in the implementation of the project in accordance with laws on public investment.

5. Approving project proposals

a) Based on the project proposal files of the project preparation unit, the review files of the review unit, and the decision on the State's investment capital participation in the project by the competent state agency in accordance with laws on public investment (if applicable), the Minister, Heads of Ministries, and Heads of provincial People's Committees shall approve the project proposal within five days. In cases where the project is approved for investment by the Minister, Heads of Ministries, and Heads of provincial People's Committees according to the division of responsibilities under laws on public investment, the project proposal may be approved concurrently with the decision on the State's investment capital participation in the project.

b) The decision approving the project proposal shall include the following basic contents:

- Project name;

- Name of the state agency authorized to sign contracts with investors;

- Name of the project preparation unit;

- Location, scale, capacity of the project, land area;

- Technical requirements;

- Estimated total investment;

- State investment capital participating in the project (if applicable);

- Type of project contract;

- Preliminary financial plan;

- Duration of the project contract;

- Investment incentives and guarantees;

- Other contents.

6. Ministries, equivalent Ministries, and provincial People's Committees shall implement the announcement of projects in accordance with Article 18 of Decree No. 15/2015/NĐ-CP. The content and procedure for publishing information shall comply with laws on bidding.

Article 5. Establishing, reviewing, and approving project proposals in accordance with the provisions of Section 2, Chapter III of Decree No. 15/2015/NĐ-CP.

1. Detailed procedures

a) Establishing project proposals;

b) Reviewing project proposals;

c) Approving project proposals;

d) Agreeing on matters related to entrusting investors to prepare feasibility study reports;

đ) Announcing project proposals.

2. Establishing project proposals

a) Investors establish project proposals in accordance with point a, Clause 2, Article 4 of this Circular.

b) Investors submit one set of project proposal files to ministries, ministerial-level agencies, or provincial people's committees; simultaneously, they submit one set of project proposal files to the lead unit managing PPP activities.

c) The project proposal file includes documents as prescribed in Clause 2, Article 21 of Decree No. 15/2015/NĐ-CP.

3. The process of reviewing and approving project proposals established by investors shall be carried out in accordance with the provisions of Clauses 3 and 5, Article 4 of this Circular.

4. For projects that utilize official development assistance (ODA) funds and preferential foreign loans from sponsors as stipulated in Clause 3, Article 11 of Decree No. 15/2015/NĐ-CP, ministries, ministerial-level agencies, or provincial people's committees report to competent authorities for approval of the policy on state investment capital participation in implementing the projects in accordance with laws on public investment and international agreements before approving project proposals.

5. Ministries, ministerial-level agencies, or provincial people's committees organize agreements with investors regarding matters related to entrusting investors to prepare feasibility study reports. Agreement contents must be documented in writing in accordance with Clause 3, Article 24 of Decree No. 15/2015/NĐ-CP.

6. Ministries, ministerial-level agencies, or provincial people's committees announce approved project proposals and information about proposing investors in accordance with Article 23 of Decree No. 15/2015/NĐ-CP. Content and procedures for publishing information comply with laws on bidding.

Article 6. Preparing, reviewing, and approving feasibility study reports

1. Detailed procedures

a) Preparing feasibility study reports;

b) Reviewing feasibility study reports;

c) Approving feasibility study reports.

2. Preparing feasibility study reports

a) The project preparation unit or investor assigned the task of preparing feasibility study reports in accordance with Clause 1, Article 25 of Decree No. 15/2015/NĐ-CP, based on guidelines in Appendix III attached to this Circular, except for Class C projects.

b) The project preparation unit or investor assigned the task of preparing feasibility study reports submits one set of feasibility study report approval application files to ministries, ministerial-level agencies, and provincial people's committees; simultaneously, they submit four sets of feasibility study report approval application files to the review unit.

c) Feasibility study report approval application files include:

- Document for approval of feasibility study reports: The content of the document for approval includes grounds for submitting the feasibility study report for approval, explanations of the main contents of the feasibility study report, and recommendations;

- Draft feasibility study report;

- Agreement document between ministries, ministerial-level agencies, or provincial people's committees and investors (in cases where investors propose projects);

- Decision approving project proposals;

- Document reviewing project proposals;

- Relevant documents and legal texts.

3. Reviewing feasibility study reports

a) The review unit receives feasibility study report approval application files from the project preparation unit or investor and organizes reviews in accordance with points b, c, and d of this clause.

b) The review unit collects comments from relevant agencies and units on feasibility study reports through written consultations, and may organize review meetings if necessary. The review unit must obtain technical design reviews from construction-related agencies under construction laws for projects with construction components, or from specialized agencies as prescribed by specific laws for projects without construction components.

c) The review unit prepares a review report on feasibility study reports according to the contents specified in Clause 3, Article 26 of Decree No. 15/2015/NĐ-CP, based on guidelines in Appendix IV attached to this Circular.

d) The review unit submits feasibility study report review files to the Minister, Heads of ministerial-level agencies, and Chairpersons of provincial people's committees in accordance with Clause 2, Article 26 of Decree No. 15/2015/NĐ-CP within the time limit specified in Clause 4, Article 26 of Decree No. 15/2015/NĐ-CP.

4. Approving feasibility study reports

a) Based on feasibility study report approval application files from the project preparation unit or investor and review files from the review unit, the Minister, Heads of ministerial-level agencies, and Chairpersons of provincial people's committees approve feasibility study reports.

b) The decision approving feasibility study reports includes the following basic contents:

- Project name;

- Name of the state agency authorized to sign contracts with investors;

- Name of the project preparation unit or investor assigned the task of preparing feasibility study reports;

- Location, scale, capacity of the project, land area;

- Detailed technical requirements;

- Total investment capital;

- State investment capital participating in the project (if applicable);

- Type of project contract;

- Financial plan;

- Duration of the project contract;

- Investment incentives and guarantees;

- Other contents.

Article 7. Application of the Annexes

1. The Annexes issued together with this Circular are established based on the provisions of the laws on investment under the PPP form, while referring to international practices to facilitate the work of preparing PPP projects for all parties involved, ensuring the consistency of the content of project proposals and feasibility study reports, serving as a basis for selecting investors and negotiating and signing project contracts.

2. When drafting, reviewing, approving project proposal and feasibility study report of PPP projects, organizations and individuals shall apply the Annexes issued together with this Circular and base on the nature, scale, and field of each specific project to supplement some explanatory contents regarding feasibility and effectiveness for the special conditions of the project.

Article 8. Implementation organization

1. This Circular takes effect from April 18, 2016.

2. Ministries, ministerial-level agencies, government agencies, other central agencies, People's Committees at all levels, and related organizations and individuals are responsible for implementing this Circular.

3. In the course of implementation, if there are any difficulties, the relevant ministries, ministerial-level agencies, government agencies, other central agencies, People's Committees at all levels, and related organizations and individuals are requested to send their opinions to the Ministry of Planning and Investment for timely consideration and resolution.