Circular No. 03/2011/TT-BKHĐT guiding the implementation of certain provisions of the Government Decree No. 108/2009/NĐ-CP dated November 27, 2009 on investment under the BOT Contract, BTO Contract, and BT Contract forms.

CIRCULAR

Guidelines for implementing certain provisions of Decree No. 108/2009/NĐ-CPdated November 27, 2009 of the Government on investment under the form ofBOT Contract, BTO Contract and BT Contract

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;

Pursuant to Decree No. 108/2009/NĐ-CP dated November 27, 2009 of the Government on investment under the form of Build-Operate-Transfer (BOT) Contract, Build-Transfer-Operate (BTO) Contract and Build-Transfer (BT) Contract;

Pursuant to Government Decree No. 85/2009/NĐ-CP dated October 15, 2009 guiding the implementation of the Bidding Law and the selection of contractors under the Construction Law;

The Ministry of Planning and Investment guides the implementation of certain provisions of the Decree as follows:

PART I

GENERAL PROVISIONS

Article 1. Scope of Regulation

Article 1. This Circular guides the implementation of certain provisions of Decree No. 108/2009/NĐ-CP dated November 27, 2009 of the Government on investment under the form of BOT Contract, BTO Contract and BT Contract (hereinafter referred to as Decree No. 108/2009/NĐ-CP).

Article 2. Provisions at Clause 2, Article 47 of Decree No. 108/2009/NĐ-CP and related provisions in this Circular shall be implemented in accordance with the guidance of the Ministry of Finance.

Article 2. Other similar project contract forms (Clause 1, Article 1 of Decree No. 108/2009/NĐ-CP)

1. Ministries, sectors, People's Committees of provinces submit to the Ministry of Planning and Investment documents requesting the implementation of other similar project contracts including contents prescribed for Project Proposals as stipulated in Articles 11 and 12 of Decree No. 108/2009/NĐ-CP.

2. Based on the requests of ministries, sectors, and People's Committees of provinces, the Ministry of Planning and Investment will consolidate and submit to the Prime Minister for consideration and decision on the implementation of other similar project contracts within 15 working days from receipt of the documents.

3. After being approved by the Prime Minister to apply other similar project contract forms, ministries, sectors, and People's Committees of provinces will supplement projects into the list of projects and organize the implementation of projects in accordance with Decree No. 108/2009/NĐ-CP and this Circular.

Article 3. Investors and Project Enterprises (Clauses 7 and 8, Article 2 of Decree No. 108/2009/NĐ-CP)

1. Investors must establish new Project Enterprises according to the procedures prescribed in Article 49 of this Circular.

2. Rights and obligations of Project Enterprises and the relationship between Investors and Project Enterprises must be clearly specified in the Project Contract in accordance with Clause 2, Article 16 of Decree No. 108/2009/NĐ-CP.

Article 4. State agencies authorized to conclude and implement Project Contracts (Article 3 of Decree No. 108/2009/NĐ-CP)

1. Agencies authorized according to Clause 2, Article 3 of Decree No. 108/2009/NĐ-CP are state management agencies directly subordinate to ministries, sectors, and People's Committees of provinces. When authorized, the subordinate agencies of ministries, sectors, and People's Committees of provinces become State agencies authorized to conclude and implement Project Contracts.

2. The authorization according to Clause 1 of this Article must be carried out in writing, specifying in detail the authority and responsibility of the authorized agency in preparing Projects, negotiating, and implementing Project Contracts.

Article 5. Fields of Investment (Article 4 of Decree No. 108/2009/NĐ-CP)

1. For construction projects of infrastructure structures not falling within the fields prescribed in Article 4 of Decree No. 108/2009/NĐ-CP, ministries, sectors, and People's Committees of provinces seek opinions from relevant ministries, sectors, and localities and submit documents requesting the implementation of projects to the Ministry of Planning and Investment for consolidation and submission to the Prime Minister for consideration and decision.

2. Documents requesting the implementation of projects include contents prescribed for Project Proposals as stipulated in Articles 11 and 12 of Decree No. 108/2009/NĐ-CP.

3. Based on the requests of ministries, sectors, and People's Committees of provinces and opinions of relevant agencies, the Ministry of Planning and Investment will consolidate and submit to the Prime Minister for consideration and decision on the implementation of projects within 15 working days from receipt of the documents requesting the implementation of projects.

4. After being approved by the Prime Minister to implement projects, ministries, sectors, and People's Committees of provinces will supplement projects into the list of projects and organize the implementation of projects in accordance with Decree No. 108/2009/NĐ-CP and this Circular.

Article 6. Sources of Capital for the Project (Article 5 of Decree No. 108/2009/ND-CP)

1. Shareholder capital is the actual capital of the Investor committed to the registered capital of the Project Enterprise and is determined based on the total investment capital of each Project.

2. The sources of capital, the schedule for raising capital, conditions for increasing or decreasing shareholder capital or total investment capital of the Project, and measures to handle such situations must be agreed upon in the Project Contract in accordance with the provisions of Decree No. 108/2009/ND-CP, laws on enterprises, laws on construction investment, and relevant legal documents.

The competent state agency is responsible for supervising and inspecting the contribution of shareholder capital according to the agreed capital-raising plan in the Project Contract and the provisions of this Article.

Article 7. Use of State Capital to Participate in Implementing the Project (Article 6 of Decree No. 108/2009/ND-CP)

1. The total state capital as stipulated in Clause 1 of Article 6 of Decree No. 108/2009/ND-CP is the amount of capital used to implement specific Projects, including: state budget capital, credit guaranteed by the state, state development investment credit, state-owned enterprise development investment capital, and other sources of capital managed by the state.

2. For Projects that need to be implemented to meet urgent requirements for the use of infrastructure works or other important projects, ministries, sectors, provincial People's Committees shall establish investment projects using state capital to support project implementation in the forms prescribed in Clause 2 of Article 6 of Decree No. 108/2009/ND-CP.

3. The establishment, review, approval, and management of projects using state capital shall be carried out in accordance with the laws on state capital management and laws on construction investment.

Article 8. Inter-Agency Working Group (Article 7 of Decree No. 108/2009/ND-CP)

1. Depending on the negotiation and implementation requirements of the Project, the competent state agency shall select domestic or foreign consulting organizations with sufficient capacity and experience to participate in supporting the tasks specified in Clause 2 of Article 7 of Decree No. 108/2009/ND-CP.

2. The selection of consulting organizations shall be conducted in accordance with the provisions of the law on bidding.

Article 9. Mechanism for Implementing the BT Project

1. Allocation of land to the Investor to implement another Project:

a) The selection of the Investor shall be carried out in accordance with the relevant provisions at point b, clause 2, Article 38 of this Circular.

b) The selected Investor must pay the state budget the difference between the value of the land use rights of the area implementing the other project and the total investment capital for constructing the BT Work.

2. Payment in cash to the Investor constructing the BT Work:

The competent state agency shall organize the selection of the Investor in accordance with the regulations applicable to payment in cash as stipulated at point b, clause 2, Article 38 of this Circular.

3. In cases where land funds are arranged to generate capital for paying the Investor constructing the BT Work, the competent state agency shall organize the selection of the Investor constructing the BT Work in accordance with the provisions of clause 2 of this Article and organize the auction of land use rights in accordance with the law or tender to select investors for projects using land in accordance with the guidance of the Ministry of Planning and Investment. In this case, payment to the Investor constructing the BT Work can only be made after the completion, acceptance, and transfer of the Work to the competent state agency in accordance with the conditions stipulated in the Project Contract.

Chapter II

DEVELOPMENT AND ANNOUNCEMENT OF THE PROJECT LIST

Article 10. Construction and Approval of the Project List (Article 9 of Decree No. 108/2009/NĐ-CP)

1. During the process of developing the annual socio-economic development plan, ministries, sectors, provincial People's Committees shall construct or adjust the project list for their respective fields or localities.

2. Each project to be considered for inclusion in the project list must meet the following conditions:

a) It must be consistent with the industry development planning and socio-economic development planning of the locality;

b) It must comply with the investment areas specified in Article 4 of Decree No. 108/2009/NĐ-CP;

c) The project's objectives must meet the needs for economic and social infrastructure construction, but during the period required to implement the project, ministries, sectors, and localities are unable to mobilize state budget funds or other sources of funding;

d) There must be a feasible plan to balance the capital for payment to the Investor or to assign another project for the Investor to undertake (for BOT projects).

3. Depending on the field and location of the project, ministries, sectors, and provincial People's Committees shall submit documents seeking opinions from the Ministry of Planning and Investment, the sector management ministry, and relevant local authorities (hereinafter referred to as the Relevant Authorities) regarding the proposed projects to be included in the project list. The opinion-seeking document must include the contents stipulated in Clause 4 of Article 9 of Decree No. 108/2009/NĐ-CP and must be accompanied by the project list.

4. Based on the consolidation of opinions from the Relevant Authorities, ministries, sectors, and provincial People's Committees shall approve the project list. For projects requiring local government budget arrangements to pay the Investor or support the implementation of the project, the provincial People's Committee shall report to the Standing Committee of the People's Council for consideration of the local budget balancing capacity according to regulations applicable to projects using state budget funds.

5. The project list may be adjusted in the following cases:

a) When there is a change in the industry planning or the socio-economic development planning of the locality leading to changes in the policy for implementing the project, or in the project's objectives, scale, location, capacity, and technical standards in the published project list;

b) When one or more projects in the published project list have completed the procedures for selecting the Investor;

c) Other cases as decided by ministries, sectors, and provincial People's Committees.

When adjusting the project list, ministries, sectors, and provincial People's Committees shall announce the changed contents according to the procedures stipulated in Clause 1 of Article 10 of Decree No. 108/2009/NĐ-CP.

Article 11. Announcement of the Project List (Article 10 of Decree No. 108/2009/NĐ-CP)

1. The project list shall be announced in January each year according to the procedures and contents stipulated in Clause 1 of Article 10 of Decree No. 108/2009/NĐ-CP. In cases where there is no new project list, ministries, sectors, and provincial People's Committees shall reannounce the project list published in the previous year.

2. Investors wishing to participate in implementing the project shall register according to Model No. 1 of Appendix I of this Circular.

Article 12. Projects Proposed by Investors Outside the Published Project List (Article 11 of Decree No. 108/2009/NĐ-CP)

1. Proposals for projects shall include the contents stipulated in Articles 11 and 12 of Decree No. 108/2009/NĐ-CP.

2. Ministries, sectors, and provincial People's Committees shall decide and announce the agency responsible for receiving project proposals in accordance with their functions and powers under the law and based on the management requirements of the sector or locality.

3. For projects already included in the planning, ministries, sectors, and provincial People's Committees shall organize the review and approval according to the procedures stipulated in Clauses 3, 4, and 5 of Article 9 of Decree No. 108/2009/NĐ-CP.

For projects not yet included in the planning, ministries, sectors, and provincial People's Committees shall complete the supplementary planning procedures after soliciting opinions from relevant agencies on the project proposal.

4. Within a minimum period of 30 working days from the date of publishing the basic content of the project proposal as stipulated in Clause 5 of Article 11 of Decree No. 108/2009/NĐ-CP, the competent state authority shall carry out the following procedures:

a) Appoint the Investor if no other Investor has registered to participate in implementing the project; or

b) Organize open bidding to select the Investor if another Investor has registered to participate in implementing the project.

Article 13. Preparation and Approval of Feasibility Study Report (Article 12 of Decree No. 108/2009/NĐ-CP)

1. The competent state agency must organize the preparation of the Feasibility Study Report for the Project, including Projects proposed by Investors that have been approved to be added to the Project List, to serve as the basis for selecting Investors and negotiating Project Contracts.

2. Depending on the requirements for implementing the Project, the competent state agency shall organize the preparation or select consulting organizations with sufficient capacity and experience to prepare the Feasibility Study Report and Tender Documents or Request for Proposals. The selection of consulting organizations shall be carried out in accordance with the provisions of the law on bidding.

3. For BT Projects, concurrently with the preparation of the Feasibility Study Report for the Construction Project under the BT model, the competent state agency shall prepare the Detailed Urban Planning at a scale of 1/2000 for the land area intended to be transferred to the Investor to implement another Project, or develop a payment plan in cash for the Investor.

4. Authority to review the Feasibility Study Report:

a) For National Key Projects, the Prime Minister shall establish a State Review Board to organize the review of the Feasibility Study Report.

b) Ministries, sectors, and provincial People's Committees shall organize the review of the Feasibility Study Report for Projects belonging to Groups A, B, and C.

The dossier, procedures, formalities, and content of the review of the Feasibility Study Report shall be implemented in accordance with the provisions of the law on construction.

5. The approval of the Feasibility Study Report shall be carried out in accordance with the provisions of Article 12 of Decree No. 108/2009/NĐ-CP.

SELECTION OF INVESTORS AND NEGOTIATION OF PROJECT CONTRACTS

Section 1

GENERAL PROVISIONS

Article 14. Explanation of Terms

In this Chapter, the following terms shall be understood as follows:

1. "Selection of investors" refers to the process of open bidding or direct assignment to determine the Investor with the capacity, experience, and technical and financial proposals assessed as the most effective according to the criteria set forth in the Tender Documents or Request for Proposals.

2. "Person authorized to select the Investor" (hereinafter referred to as the Person Authorized) is the head of the competent state agency who signs and implements the Project Contract in accordance with Clauses 1 and 2 of Article 3 of Decree No. 108/2009/NĐ-CP.

3. "Bid Inviter" is a unit subordinate to the competent state agency decided by the Person Authorized, responsible for organizing the selection of Investors in accordance with the provisions of this Circular. In cases where there is insufficient experience, capacity, and personnel, the Bid Inviter may hire consulting organizations to perform their tasks, but in all cases, they must bear full responsibility for the process of selecting Investors in accordance with the provisions of this Circular.

4. "Bid Evaluation Team" consists of individuals with sufficient capacity and experience, established or selected by the Bid Inviter to carry out the tasks stipulated in Article 25 of this Circular.

5. "Tender Documents" are documents applicable to open bidding, including requirements related to the implementation of the Project, used as a basis for Investors to prepare Tender Proposals and for the Bid Evaluation Team to evaluate and select Investors.

6. "Request for Proposals" are documents applicable to the designation of Investors, including requirements related to the implementation of the Project, used as a basis for designated Investors to prepare Proposal Documents and for the Bid Evaluation Team to evaluate and select Investors.

7. "Tender Proposals or Proposal Documents" are documents prepared and submitted by Investors to the Bid Inviter in accordance with the requirements of the Tender Documents or Request for Proposals.

Article 15. Conditions for organizing the selection of Investors and conditions for participating in bidding

1. The Inviter may only organize the selection of Investors when meeting all of the following conditions:

a) The project belongs to the list of projects published by Ministries, sectors, provincial People's Committees according to Clause 1, Article 10 of Decree No. 108/2009/NĐ-CP and is posted according to Article 11 of this Circular.

b) The feasibility study report, investment selection plan, tender invitation document, or request document has been approved.

2. Investors participating in bidding must meet all of the following conditions:

a) Having legal personality (for organizational Investors) or having civil capacity as prescribed by law (for individual Investors);

b) Having actual capital to implement the project that meets the requirements stipulated in Articles 5 and 6 of Decree No. 108/2009/NĐ-CP and Articles 6 and 7 of this Circular (for joint bidding consortia, the equity capital is determined based on the investment participation ratio of each member within the consortium and is specified in the consortium agreement);

c) Only allowed to participate in bidding through an independent bid proposal or a consortium between Investors (in the case of a consortium, the Investors must have an agreement specifying the head of the consortium, common responsibilities, and individual responsibilities of each member of the consortium);

d) Providing a commitment not to be in a state of bankruptcy or undergoing liquidation; not being concluded by competent authorities to have an unhealthy financial situation or currently being subject to legal violations.

Article 16. Language used during the selection process of Investors

1. In cases of selecting domestic Investors, the tender invitation document, request document, bid proposal, submission document, and other exchange materials between the Inviter and the Investor shall be prepared in Vietnamese.

2. In cases of international competitive bidding, the tender invitation document and request document shall be prepared in English or in both Vietnamese and English. The language used in these cases is regulated as follows:

a) If the tender invitation document or request document is prepared in English, then the bid proposal or submission document must be prepared in English;

b) If the tender invitation document or request document is prepared in both Vietnamese and English, the Investor may choose either language to prepare the bid proposal or submission document, but in cases where there are different interpretations between the two languages, the English version of the tender invitation document or request document shall prevail.

Article 17. Costs for organizing the selection of Investors

1. Costs for organizing the selection of Investors include costs for preparing the tender invitation document or request document, costs for evaluating the bid proposal or submission document, verification costs, and other costs incurred during the organization of the selection process.

2. Costs for organizing the selection of Investors are funded from the proceeds of selling the tender invitation document or request document according to the guidelines of the Ministry of Finance. In cases where the revenue from selling the tender invitation document or request document is insufficient to cover the costs of organizing the selection of Investors, the Inviter reports to the Competent Authority to supplement from the budget of the Ministry, sector, or locality.

The Tenderer is responsible for managing, using, and settling accounts for costs associated with selecting the Investor in accordance with the laws on state budget.

3. The price of one set of documents (including tax) is decided by the Inviter depending on the scale and nature of the project but shall not exceed VND 50,000,000 for open domestic bidding or designated Investors.

For international open tendering, the selling price shall be determined according to international practices, but not exceeding 100,000,000 VND.

Article 18. Forms and Methods for Selecting Investors

1. Open tender to select investors:

a) Domestic open tender shall be applied to all projects with two or more domestic investors registered to participate.

b) International open tender shall be applied to projects without domestic investors registering to participate or where a domestic open tender has been organized but no investor was selected.

2. Designation of investors:

a) The designation of an investor to implement a project to meet urgent needs for the use of infrastructure construction works as stipulated in Clause 3, Article 14 of Decree No. 108/2009/ND-CP must satisfy one of the following conditions:

- Projects that need to be implemented promptly to ensure energy security and safety;

- Projects that need to be implemented to serve important national events;

- Projects that need to be implemented to protect territorial sovereignty, security, and borders on land, sea, and islands.

b) When submitting to the Prime Minister for a decision on designating an investor as provided in point a of this clause, ministries, sectors, provincial People's Committees shall prepare a proposal to designate an investor containing the following contents:

- Summary of the main contents of the Project;

- Explanation of compliance with the conditions stipulated in point a of this clause;

- Explanation of the economic and social effectiveness of applying the direct appointment of Investors;

- Commitment to implement the direct appointment of Investors in accordance with the explanation provided.

c) The proposal to designate an investor submitted to the Prime Minister shall be simultaneously sent to the Ministry of Planning and Investment for review.

The Ministry of Planning and Investment shall submit to the Prime Minister for consideration and decision on the application of the direct appointment of Investors within 15 days from the date of receipt of the proposal from the Ministry, sector, or provincial People's Committee.

3. Methods for selecting investors:

a) A one-stage, one-envelope method shall be applied to the designation form of investors.

b) A one-stage, two-envelope method shall be applied to the open tender form; wherein the bidding dossier includes a technical proposal (contents about the investor's capacity and experience, technology) and a financial proposal. The technical proposal is opened immediately after the closing time of bids (first bid opening) for preliminary evaluation. Investors meeting the requirements of capacity, experience, and technology will have their financial proposals opened (second bid opening) for financial evaluation.

Article 19. Bid Security

1. Before the deadline for submitting the Bidding Dossier or Proposal Dossier (closing time), the investor selects one of the bid security measures, including deposit, guarantee, or submission of a letter of guarantee.

2. The value of bid security is specified in the Bidding Invitation Dossier or Request Dossier according to the following principles:

a) For investment capital up to VND 15,000 billion, the bid security value is applied from 1% to 1.5% of the total investment capital of the project.

b) For investment capital over VND 15,000 billion, the bid security value is applied from 0.5% to less than 1% of the total investment capital of the project.

3. The validity period of bid security is determined by the validity period of the Bidding Dossier or Proposal Dossier. In cases where an extension of the validity period of the Bidding Dossier or Proposal Dossier is required, the Inviting Party requests the investor to extend the corresponding validity period of the bid security. In such cases, the investor may not change the contents of the Bidding Dossier or Proposal Dossier after the closing time, except when clarification of the Bidding Dossier or Proposal Dossier is necessary as stipulated in Article 37 of this Circular. An investor will be disqualified if they refuse to extend the validity period of the Bidding Dossier or Proposal Dossier and the Inviting Party will refund the bid security.

4. For joint ventures participating in the tender, each member of the joint venture may independently undertake bid security or agree that one member will be responsible for undertaking bid security for the joint venture. Bid security may include the name of the joint venture or the name of the member responsible for undertaking bid security.

5. Bid security is refunded to non-selected investors within a period not exceeding thirty days from the date of announcing the selection results. The winning investor will be refunded bid security after implementing the security measure for fulfilling the obligations under the Project Contract as stipulated in Article 23 of Decree No. 108/2009/ND-CP.

6. Bid security will not be refunded to investors and will be remitted to the state budget in the following cases:

a) After the closing time and during the validity period of the Bidding Dossier or Proposal Dossier, the investor withdraws the Bidding Dossier or Proposal Dossier.

b) The investor does not negotiate the Project Contract within thirty days from the date of receiving the notification of the selection results or has successfully negotiated but does not sign the Project Contract.

c) The investor does not implement the security measure for fulfilling the obligations under the Project Contract as stipulated in Article 23 of Decree No. 108/2009/ND-CP.

Article 20. Time for Organizing Investor Selection

1. Preliminary Screening Time for Investors:

a) The preliminary screening of investors shall be conducted within a maximum period of 60 days for domestic open tendering and 75 days for international open tendering, calculated from the date of issuance of the Request for Preliminary Proposal to the date when the preliminary screening results are approved;

b) Preparation of the Preliminary Proposal Submission shall be carried out within a minimum period of 15 days for domestic open tendering and 25 days for international open tendering, calculated from the first day of issuance of the Request for Preliminary Proposal to the submission deadline.

2. Time for Preparing Bidding Documents or Proposal Documents:

a) Preparation of the Bidding Documents or Proposal Documents shall be carried out within a minimum period of 45 days for domestic open tendering and investor designation; and a minimum period of 60 days for international open tendering, calculated from the date of issuance of the Request for Bids to the bidding closing date;

b) In cases where it is necessary to amend the Request for Bids or Request for Proposals after issuance but before the bidding closing date, the Tender Inviter shall notify in writing all investors who have purchased the Request for Bids or Request for Proposals at least 15 days prior to the bidding closing date to allow investors sufficient time to complete their Bidding Documents or Proposal Documents.

3. Validity Period of Bidding Documents or Proposal Documents:

a) The validity period of the Bidding Documents or Proposal Documents shall be stipulated correspondingly in the Request for Bids or Request for Proposals and shall be calculated from the bidding closing date to the date the project contract is officially signed, but not exceeding 210 days;

b) In case of necessity, the Tender Inviter may request investors to extend the validity period of the Bidding Documents or Proposal Documents one or more times, but the total duration of such extensions shall not exceed 60 days.

4. Evaluation Time for Bidding Documents or Proposal Documents:

a) Evaluation of the Bidding Documents shall be conducted within a maximum period of 60 days for domestic open tendering and 90 days for international open tendering, calculated from the bid opening date to the date when the Tender Inviter reports the selection results to the authorized decision-maker;

b) Evaluation of the Proposal Documents shall be conducted within a maximum period of 30 days, calculated from the bid opening date to the date when the Tender Inviter reports the selection results to the authorized decision-maker.

5. Review Time for Bidding Requests or Request for Proposals, and Review of Investor Selection Results:

a) Review of the Bidding Requests or Request for Proposals shall be conducted within a maximum period of 30 days from the date of receipt of the full documentation presented by the Tendering Expert Team until the reviewing agency or organization reports its review of the Bidding Requests or Request for Proposals to the head of the Tender Inviter for consideration and decision;

b) Review of the Investor Selection Results shall be conducted within a maximum period of 30 days from the date of receipt of the full report on the selection results of the Tender Inviter until the reviewing agency or organization reports its review of the Investor Selection Results to the authorized decision-maker for consideration and decision.

6. Approval Time for Bidding Requests or Request for Proposals and Investor Selection Results:

The approval of the Tender Documents or Request for Proposal and the Investor Selection Results shall be completed within a maximum period of 15 days from the date when the head of the Tenderer or the Competent Authority receives the review report on the Tender Documents or Request for Proposal and the Investor Selection Results from the Reviewing Agency or Organization.

Article 21. Classification of Appraisal and Approval during the Process of Selecting Investors

1. Classification of Appraisal:

a) For Projects where the Competent Authority is a Minister, Head of a Ministry-level agency, Government agency, or an agency under a ministry or sector, the Minister or heads of these agencies shall decide on the Appraisal Agency or organization for the project plan and the results of selecting investors.

b) For Projects where the Competent Authority is the Chairman of the Provincial People's Committee or an agency under the Committee, the Department of Planning and Investment shall be responsible for organizing the appraisal of the project plan and the results of selecting investors.

c) The head of the Tender Inviter may select organizations or individuals with sufficient capacity and experience, or consulting contractors (if necessary), in accordance with the bidding laws to appraise the Prequalification Documents, prequalification results, tender documents, or Request for Proposals.

2. Classification of Approval:

a) The Competent Authority is responsible for approving the investor selection plan and the results of selecting investors.

b) The head of the Tender Inviter is responsible for approving the Prequalification Documents, prequalification results, tender documents, or Request for Proposals.

Section 2

PROCEDURE FOR SELECTING INVESTORS

Article 22. General Procedure for Selecting Investors

1. Establishing, Appraising, and Approving the Investor Selection Plan.

2. Preparing for the Selection of Investors.

3. Issuing Tender Documents or Request for Proposals and Receiving Bid Documents or Proposal Documents.

4. Evaluating Bid Documents or Proposal Documents.

5. Submitting, Appraising, Approving, and Announcing the Results of Selecting Investors.

A. ESTABLISHING, APPRAISING, AND APPROVING THE PLAN

SELECTION OF INVESTORS

Article 23. Establishing the Investor Selection Plan

1. Based on the published Project List and the number of interested investors who have registered, the Tender Inviter establishes the investor selection plan to submit to the Competent Authority while sending it to the Appraisal Agency or organization.

2. The investor selection plan includes the following contents:

a) Project Name;

b) Total investment capital of the Project;

c) Project Contract form (BOT Contract, BTO Contract, BT Contract);

d) Investor selection method (open domestic or international bidding, prequalification);

đ) Investor selection approach;

e) State investment incentives and support, government guarantee (if any);

g) Payment conditions and methods for investors (for BT Projects);

h) Time frame for organizing the investor selection process (from the date of issuing the Prequalification Documents, Request for Proposals, or Tender Documents to the date of the approval decision on the selection results);

i) Other necessary contents.

Article 24. Appraisal and Approval of the Investor Selection Plan

1. The Appraisal Agency or organization conducts the appraisal of the investor selection plan within a maximum period of 20 days from the date of receiving all documents from the Tender Inviter.

2. The Competent Authority reviews and approves the investor selection plan within a maximum period of 15 days from the date of receiving the appraisal report from the Appraisal Agency or organization.

B. PREPARATION FOR SELECTING INVESTORS

Article 25. Establishment of the Bidding Expert Team

1. Conditions for individuals participating in the Bidding Expert Team:

a) Hold a certificate from a bidding course;

b) Understand legal regulations on investment and have relevant professional qualifications suitable for the project requirements;

c) Have at least three years of work experience in related fields;

d) Possess language proficiency meeting the requirements (in cases of open international bidding).

2. Establishment of the Bidding Expert Team:

a) The Tender Inviter decides on the establishment of the Bidding Expert Team. In cases where there are insufficient personnel to meet the requirements, the Tender Inviter may invite experienced and capable experts to join the Bidding Expert Team.

b) If necessary, the Tender Inviter may select a consulting organization to undertake all tasks of the Bidding Expert Team. The consulting organization decides on the establishment of the Bidding Expert Team and informs the Tender Inviter before the bid opening.

3. Tasks of the Bidding Expert Team:

The Tender Expert Group shall perform one or more of the following tasks:

a) Prepare Prequalification Documents, Tender Documents, or Request for Proposals;

b) Evaluate and prepare reports on the evaluation of Prequalification Bid Documents, Tender Bid Documents, or Proposal Documents;

c) Other tasks as required by the Tender Inviter.

Article 26. Application of Preliminary Screening

Based on the scale, nature, and specific conditions of each Project, the authorized person decides to apply the preliminary screening procedure but must approve it in the investment selection plan.

Article 27. Preliminary Screening Procedure

1. Preparation of the Preliminary Screening Invitation Document:

The prequalification documents include:

a) Information guiding investors (including the basic contents of the Project and guidance for investors participating in the preliminary screening);

b) Requirements for investor participation in bidding as stipulated in Clause 2, Article 15 of this Circular;

c) Standards regarding the capacity and experience of investors, which are applied based on the nature and scale of the Project and specified in the Preliminary Screening Invitation Document, including the following main requirements:

- Experience criteria including requirements for design, construction, operation, and management of the Project (in the case of a consortium bidding, the experience of the Investor is considered the combined experience of the consortium members).

- Capacity criteria including requirements for the Investor's equity capital as stipulated in Article 5 of Decree No. 108/2009/ND-CP and Article 6 of this Circular; requirements for capital mobilization capacity; requirements for the Investor's management and business capacity.

Prequalification documents will be evaluated based on the criteria "pass" or "fail." The evaluation criteria for prequalification documents must be stated in the prequalification documents.

2. Announcement of Preliminary Screening Invitation and Distribution of the Preliminary Screening Invitation Document:

a) The tenderer announces the preliminary screening invitation in the Bidding Newspaper for three consecutive issues and on the electronic bidding information website, the website of the Ministry, sector, or locality from the date of publication in the Bidding Newspaper until the deadline for submitting the Preliminary Screening Submission Document. The preliminary screening announcement may also be published simultaneously on other mass media.

b) The Preliminary Screening Invitation Document is distributed free of charge to investors from the first day of the preliminary screening announcement publication until the submission deadline for the Preliminary Screening Submission Document (closing date).

3. Receipt and Management of Preliminary Screening Submission Documents:

a) The tenderer receives Preliminary Screening Submission Documents and manages them under a confidential system. Preliminary Screening Submission Documents meeting the requirements stated in the Preliminary Screening Invitation Document are publicly opened immediately after the closing date.

b) Preliminary Screening Submission Documents received after the closing date are considered invalid and will not be opened. The tenderer shall not be responsible for Preliminary Screening Submission Documents submitted after the closing date if the investor does not reclaim them within a maximum period of 10 days from the closing date.

4. Opening and Evaluating Preliminary Screening Submission Documents:

Immediately after the prequalification deadline, the Tender Expert Group shall open and evaluate the prequalification documents based on the capacity and experience evaluation criteria stated in the prequalification documents.

5. Approving the Preliminary Screening Results:

The Tender Expert Group shall submit to the Head of the Tenderer for approval of the prequalification results based on the review report on the prequalification results from the Reviewing Agency or Organization.

6. Announcing the Preliminary Screening Results:

After receiving the approval document for the prequalification results, the Tenderer must notify in writing all prequalification participants and invite the successful prequalification participants to bid.

Article 28. Preparation of the Tender Invitation Document or Request Document

1. Basis for Preparing the Tender Invitation Document or Request Document:

a) The list of projects announced by the Ministry, sector, or provincial People's Committee;

b) Feasibility study reports and approved investment selection plans;

c) Other relevant government, ministry, sector, or provincial People's Committee documents concerning the policy for implementing the Project (if applicable).

2. Contents of the Tender Invitation Document or Request Document:

a) The Tender Invitation Document or Request Document is prepared according to the guidelines in Appendix I of this Circular and must include preconditions for eliminating tender submission or proposal documents based on reviewing the following cases:

- Investors whose names are not listed in the list of those purchasing Tender Documents or Request for Proposal (in the case of a consortium bidding, only the name of the consortium member who purchased the documents is required);

- Investors who do not meet the conditions for participation in the tender as stipulated in Clause 2 of Article 15 of this Circular;

- An investor does not have a bid guarantee or has a bid guarantee but it is not valid (its value is lower, not in the specified currency, its validity period is shorter, it was not submitted to the correct address and within the time stipulated in the Tender Invitation Document, it does not match the name of the investor for a consortium as prescribed in Clause 4, Article 19 of this Circular, it does not match the project name, the bank or financial organization's letter of guarantee is not an original copy and does not have a valid signature);

- The investor does not submit the original Bid Document or Proposal Document;

- The bid form is invalid (it does not match the investor's name, it does not match the project name, it does not have the signature of the investor's authorized representative, it does not bear the stamp if required by law);

- The validity of the Bid Document or Proposal Document does not meet the requirements stipulated in the Tender Invitation Document or Request Document;

- The investor's name appears in two or more Bid Documents (in the case of open tendering);

- Other preconditions that are appropriate to the objectives, nature of each project;

b) For BT Projects implemented through the method of transferring another project to the investor, the Tender Invitation Document or Request Document must contain detailed construction planning at a scale of 1/2000 for the land area intended for the other project, serving as the basis for the investor to propose ideas for investment construction, business management, and spatial land use planning to ensure the maximum utilization of the land area, land fund, land usage coefficient, and spatial land use planning.

3. Criteria for Evaluating Tender Submission Documents or Proposals:

The criteria for evaluating Bid Documents or Proposal Documents are specifically defined in the Tender Invitation Document or Request Document in accordance with the objectives, nature, and scale of the project. For Build-Transfer (BT) projects, the Tender Invitation Document or Request Document must specify the criteria for evaluating Bid Documents or Proposal Documents for both the construction investment project and other projects (if assigned to the investor for another project);

The main evaluation criteria include:

a) Criteria for evaluating the capacity and experience of investors:

- For projects that have undergone preliminary selection, the Tender Invitation Document does not need to define evaluation criteria regarding capacity and experience already stated in the Preliminary Selection Invitation Document, but it must require the investor to re-affirm and update information on capacity and experience declared in the Preliminary Selection Bid Document;

- For projects that do not undergo preliminary selection, the evaluation criteria regarding the investor's capacity and experience are applied according to the provisions at point c, Clause 1, Article 27 of this Circular;

b) Criteria for evaluating technical aspects:

Based on the technical evaluation criteria set by Ministries or sectors for specific fields or projects, these basic requirements include:

- Requirements concerning land clearance and resettlement (if applicable) in line with the project implementation schedule;

- Preliminary requirements concerning technical solutions, construction organization methods, and construction project management;

- Requirements concerning the quality of the works, maintenance, upkeep, warranty, and normal operation of the works before and after transfer;

- Requirements concerning the project implementation schedule: construction time, business operation time, and transfer time of the project works (for BOT and BTO projects);

- Requirements concerning the quality of goods and services provided when the project works enter business operation (for BOT and BTO projects);

- Economic and social efficiency, environmental protection, fire prevention, and ensuring national defense and security;

- Requirements concerning risk sharing between the investor and the State;

- Requirements related to the implementation of other projects (the compatibility of other projects with approved planning, progress in completing detailed planning at a scale of 1/500, approval and implementation progress of other projects);

- Other criteria suitable for the nature and scale of each project;

c) Criteria for evaluating financial aspects:

Based on the financial evaluation criteria set by Ministries or sectors for specific fields or projects, these basic requirements include:

- Feasibility in mobilizing funds to implement the project;

- Pricing and service fees; principles and formulas for adjusting pricing and service fees; - Forms of investment incentives and government guarantees (if applicable);

For BT projects, in addition to the above appropriate requirements, the Tender Invitation Document or Request Document must specify payment conditions for the investor;

In cases where the investor is assigned to implement another project, the Tender Invitation Document or Request Document must specify evaluation criteria for the total investment cost of the BT construction work and the value of the land use rights for the area implementing the other project, including:

- The value of the land use rights for the area implementing the other project is calculated based on the land price proposed by the investor;

- The land price of the area implementing the other project proposed by the investor shall not be lower than the land price specified in the Tender Invitation Document. The land price specified in the Tender Invitation Document shall not be lower than the land price issued by the Provincial People's Committee and determined based on the principle of being close to the actual transfer price of land use rights and land lease prices under normal conditions in the nearest adjacent areas with the same purpose of use as the new purpose of use specified in the Tender Invitation Document;

- The total investment cost of the BT construction work proposed by the investor shall not exceed the price specified in the Tender Invitation Document;

4. Methods for Evaluating Tender Submission Documents or Proposals:

a) Evaluation of Capacity and Experience: The capacity and experience of investors are evaluated according to the criteria "satisfactory" or "unsatisfactory."

b) Evaluation of Technical Aspects:

- Technical evaluations are conducted based on the criteria "pass" or "fail". For contents that are basic requirements of the Tender Invitation Document or Request Document, only the criteria "pass" or "fail" are used. For contents that are not basic requirements, in addition to the criteria "pass" or "fail", the criterion "acceptable" can be applied, but it cannot exceed 30% of the total number of required contents in the evaluation criteria. A Bid Document or Proposal Document is considered to meet the technical requirements when all basic requirement contents are evaluated as "pass"; non-basic requirement contents are evaluated as "pass" or "acceptable";

- If necessary, a 100-point or 1000-point scale may be used for technical evaluation, in which the proportion of points for each content mentioned above in the total score must be specified. The Tender Invitation Document or Request Document must set a minimum requirement level for each general standard but must ensure that it is not lower than 50% of the maximum score of each general standard. Investors are evaluated as meeting the requirements according to the scoring method when their score is not lower than 70% of the total score. For large-scale and complex projects, the minimum requirement level is 80% of the total score, and the score of each general standard must not be lower than the minimum requirement level.

5. Organization of a Meeting to Discuss the Preliminary Tender Invitation Document:

a) For large-scale and complex projects, the head of the tenderer considers and approves in principle the preliminary tender invitation document to distribute to registered bidders;

b) Based on the preliminary tender invitation document that has been approved in principle, the tenderer organizes a meeting with investors to discuss and clarify the contents of the preliminary tender invitation document and accurately specify the requirements stated in the document. The discussion and clarification content at the meeting must be recorded by the tenderer in minutes to serve as the basis for completing the formal tender invitation document.

Article 29. Submission, Review and Approval of the Tender Document or Request for Proposal

The reviewing agency or organization shall be responsible for reviewing the Tender Document or Request for Proposal to submit to the head of the Tender Inviter for consideration and decision.

Article 30. Issuing Tenders

1. Sending tender invitation letters:

The Tender Inviter sends out tender invitation letters to Investors listed in the shortlisted Investor list. The period from the date of sending the tender invitation letter to the issuance date of the tender documentation shall be at least five days for domestic open tenders and ten days for international open tenders.

2. Announcing tender invitations:

For open tenders without prequalification, the Tender Inviter publishes tender announcement notices in the Construction Bidding Newspaper for three consecutive issues and on the electronic bidding information website, the websites of ministries, sectors, and localities from the date of publication in the Construction Bidding Newspaper until the deadline for submission of bidding documents. In addition to the above publication requirements, the tender announcement may also be simultaneously published on other mass media.

C. DISTRIBUTION OF THE TENDER DOCUMENT OR REQUEST FOR PROPOSAL AND

RECEIPT OF BID DOCUMENTS OR PROPOSAL DOCUMENTS

Article 31. Distribution of the Tender Document or Request for Proposal

1. The Tender Inviter shall sell the Tender Document or Request for Proposal from the date of issuance until before the closing time specified in the Tender Document or Request for Proposal. For joint venture bidders participating in the tender, only one member of the joint venture needs to purchase the Tender Document or Request for Proposal.

2. After issuing the Tender Document or Request for Proposal, if amendments or supplements are necessary, the Tender Inviter shall send the amendment or supplement document to investors who have purchased the Tender Document or Request for Proposal at least fifteen days prior to the closing time. The amendment or supplement document of the Tender Document or Request for Proposal must be approved by the head of the Tender Inviter before being sent to the investor and shall be part of the Tender Document or Request for Proposal.

Article 32. Clarification of the Tender Document or Request for Proposal

1. During the preparation of the Bid Document or Proposal Document, the investor has the right to send a document to the Tender Inviter requesting clarification on unclear contents in the Tender Document or Request for Proposal.

2. Upon receiving the request from the investor, the Tender Inviter shall organize the clarification of the Tender Document or Request for Proposal in one of the following forms:

a) Organizing a meeting to exchange and clarify the Tender Document or Request for Proposal: The Tender Inviter shall organize a meeting with the investor to exchange, explain, and clarify the contents in the Tender Document or Request for Proposal. The content of the exchange must be recorded in a minutes document by the Tender Inviter and distributed to the investor (whether present or absent at the meeting). This minutes document is part of the Tender Document or Request for Proposal.

b) Sending a document to the investor to clarify the Tender Document or Request for Proposal: The Tender Inviter shall issue an explanatory document clarifying the Tender Document or Request for Proposal and distribute it to all investors who have received the Tender Document or Request for Proposal. This document is part of the Tender Document or Request for Proposal.

Article 33. Preparation and Submission of the Bid Document or Proposal Document

1. Based on the Tender Document or Request for Proposal, the investor shall prepare the Bid Document or Proposal Document and submit it to the Tender Inviter according to the time and location specified in the Tender Document or Request for Proposal.

2. A Bid Document submitted after the closing time is considered invalid and will not be opened for evaluation. In this case, the Tender Inviter shall return the Bid Document to the investor at the submission location without bearing responsibility for the late submission if the investor does not come to collect it within ten days from the closing date.

3. When wishing to withdraw, amend, or replace a submitted Bid Document or Proposal Document, the investor must provide a written request. The Tender Inviter will only accept this request when receiving the investor's document before the closing time.

Article 34. Receipt of Bid Documents or Proposal Documents

Bid Documents or Proposal Documents submitted in accordance with regulations shall be received and managed confidentially by the Tender Inviter.

D. EVALUATION OF BID DOCUMENTS OR PROPOSAL DOCUMENTS

Article 35. Evaluation of Bid Documents

1. Opening Technical Proposal Documents:

a) The opening of technical proposal documents shall be conducted publicly immediately after the bid closing time at the location specified in the Invitation to Bid, in the presence of those present, and regardless of the presence of invited investors. The Inviting Party may invite representatives of relevant agencies to attend the bid opening ceremony;

b) The Inviting Party shall sequentially open the technical proposal documents of each investor listed in the list of those who purchased the Invitation to Bid and submitted Bid Documents before the bid closing time, in alphabetical order of the investor's name;

c) The bid opening procedure includes the following steps: checking the sealing of Bid Documents; opening, reading, and recording in the bid opening minutes the main information as follows:

- Number of Investors who have purchased the tender documentation (for open tenders);

- Name of Investors submitting bidding documents;

- Number of original copies and photocopies of technical proposal documents;

- Validity period of the technical proposal documents;

- Form, value, and validity period of the bid guarantee;

- Request for amendment of the bidding documents (if any);

- Other related information.

The bid opening record must be signed and confirmed by representatives of the Tender Inviter, Investor representatives, and representatives of relevant agencies attending the bid opening ceremony and must be sent to all Investors who have submitted bidding documents regardless of their presence at the bid opening ceremony.

d) After the bid opening, the Inviting Party must sign to confirm on each page of the original Bid Document and manage it under a "confidential" regime. The evaluation of Bid Documents will be carried out based on copies. The investor is responsible for the accuracy and consistency between the copy and the original and the sealing of the Bid Document.

2. Preliminary Evaluation:

a) Evaluation according to the preconditions stated in the Invitation to Bid:

The bidding documents of an Investor will be excluded and not considered in subsequent steps if they violate any of the prerequisite conditions stated in the tender documentation.

b) Evaluation of the investor's capacity and experience according to the evaluation criteria stated in the Invitation to Bid: Investors meeting the requirements for capacity and experience will proceed to detailed technical evaluation.

3. Detailed Technical Evaluation: The detailed technical evaluation shall be conducted according to the technical evaluation criteria stated in the Invitation to Bid.

4. Opening and Evaluating Financial Proposal Documents:

a) Opening financial proposal documents:

The Tender Inviter sends invitations to Investors in the list meeting technical requirements to attend the financial proposal opening ceremony. The procedure for opening financial proposals shall be carried out according to the provisions set forth in Points b and c Clause 1 of this Article.

The financial proposal opening record includes the following main information:

- Name of Investors meeting technical requirements;

- Number of original copies and photocopies of financial proposal documents;

- Validity period of the financial proposal documents;

- Price, fee of goods or services recorded in the Bid Proposal Form (for BOT, BTO Projects) or total investment capital for construction of the BT Project and payment terms or the Investor's proposal regarding the implementation of another Project (for BT Projects);

- Proposals for incentives, investment support, government guarantees (if any);

- Other relevant information.

After the bid opening, the Tender Inviter must sign each page of the original financial proposal document of each Investor and manage it under the confidential document regime.

b) Financial evaluation:

Financial evaluation is based on the financial evaluation criteria stated in the tender documentation.

Article 36. Evaluation of Proposal Documents

1. The preliminary evaluation of Proposal Documents shall be carried out according to the procedures and formalities stipulated in Clause 2 of Article 35 of this Circular.

2. The technical and financial evaluations shall be conducted according to the evaluation criteria stated in the Request for Proposal.

Article 37. Clarification of Bid Documents or Proposal Documents

1. Clarification of Bid Documents:

a) During the evaluation of Bid Documents, the Inviting Party may send a written request to the investor to clarify the Bid Document or have direct exchanges with the investor. The content of the exchange must be recorded in a protocol and considered part of the Bid Document.

b) The investor shall not unilaterally supplement the Bid Document already submitted, except for clarifying documents requested by the Inviting Party.

If the bidding documents lack supporting documents proving the Investor's legitimate status, capacity, and experience, the Tender Inviter requests the Investor to supplement the documents with the condition that the Investor cannot change the financial proposal. Clarification of the bidding documents shall not alter the essence of the submitted bidding documents.

2. Clarification of Proposal Documents:

a) The Inviting Party may send a written request to the investor to clarify the Proposal Document or have direct exchanges with the investor to clarify the content of the Proposal Document.

b) The investor may supplement documents to complete the Proposal Document, but must ensure the truthfulness of the information, shall not falsely report their capacity and experience, and shall not modify or supplement the financial proposal in the Proposal Document.

Article 38. Principles for Selecting Investors

1. For projects implemented through open bidding, the selected investor must meet all of the following conditions:

a) Having a valid Bid Document;

b) Meeting the requirements for capability and experience;

c)符合适用的技术要求；

d) Meeting the financial requirements according to the principles stipulated in Clause 2 of this Article.

2. Depending on the project's objectives, nature, and scale, the Inviting Party may select one of the following principles to specify in the Invitation to Bid as the basis for reviewing and selecting the investor:

a) For BOT and BTO projects, the investor must submit a proposal:

- Lowest price, fee of goods, services (in cases where the business operation and transfer time of the project has been determined);

- Shortest business operation and transfer time of the project (in cases where the price, fee of goods, services has been determined);

In cases where the business operation and transfer time of the project and the price, fee of goods, services have not been determined, the Tender Inviter determines the formula to bring them to the same level for selecting the Investor.

b) For BT projects:

- In case of payment in cash:

The total investment capital for construction of the BT Project proposed by the Investor is evaluated as the lowest based on the same payment conditions.

- In case of transferring the right to implement another Project:

The selection of the Investor is based on the simultaneous assessment of the Investor's proposal regarding the total investment capital for construction of the BT Project and the proposal regarding the value of land use rights of the land planned for implementing another Project. The selected Investor must propose the largest difference between the value of land use rights of the land planned for implementing another Project and the total investment capital for construction of the BT Project.

3. The investor selected through direct assignment must meet the requirements of the Request for Proposal and the requirements during the negotiation of the Project Contract.

PART, REVIEW, APPROVAL AND ANNOUNCEMENT

THE RESULTS OF SELECTING INVESTORS

Article 39. Submission, Review, and Approval of the Investor Selection Results

1. The Tenderer shall prepare a Report on the Investor Selection Results to be submitted to the Competent Authority, while simultaneously sending it to the Reviewing Agency or Organization. Based on the Report on the Investor Selection Results and the Review Report on the Investor Selection Results, the Competent Authority shall examine and approve the Investor Selection Results.

The agency or organization responsible for reviewing bears responsibility for reviewing and preparing a review report on the results of selecting the Investor including the contents: legal basis, process of organizing implementation, evaluation results, agreement or disagreement (specify reasons) with the Tender Inviter's proposal.

The review is not a re-evaluation of the bidding documents or the proposal. The agency, organization, or individual directly conducting the review must ensure objectivity and honesty during the review process and retain their opinions.

2. Based on the submission from the Tenderer and the Review Report from the Reviewing Agency or Organization, the Competent Authority shall approve the Investor Selection Results.

The approval document for the result of selecting the Investor includes the following contents:

a) Project Name;

b) Location, scale, total investment capital of the Project;

c) Selected Investor;

d) Commencement date, completion date for construction, operation, and transfer of the Project's works;

đ) Other land use conditions for implementing the Project (location, area, purpose, duration of land use), progress in approving detailed planning at a scale of 1/500, progress in approving and implementing other Projects;

e) Matters requiring attention (if any).

Article 40. Notification of the Investor Selection Results

After receiving the decision approving the Investor Selection Results from the Competent Authority, the Tenderer shall notify the Investor Selection Results according to the following procedures:

1. Send a notification letter regarding the Investor Selection Results to all participating Investors (for the selected Investor, a draft Project Contract must be attached, which is prepared in accordance with the Feasibility Study Report, Tender Documents, or Request for Proposal).

2. Publish information about the Investor Selection Results on the Vietnam Construction Bidding Newspaper within a maximum period of 7 days from the date of the approval decision on the Investor Selection Results.

Section 3

NEGOTIATION OF THE PROJECT CONTRACT

Article 41. Preparation of Negotiation Plan and Content

1. Based on the Tender Documents, Request for Proposal, Bid Documents, Proposal Documents, and approved Investor Selection Results, the Tender Expert Group shall prepare the negotiation plan and content to be submitted for approval by the Competent State Agency and sent to the selected Investor.

2. Within 7 days from the receipt of the negotiation request, the Investor must send a notification letter to the Competent State Agency confirming their agreement to negotiate the Project Contract.

Article 42. Conducting Negotiations

1. The Competent State Agency shall lead negotiations for the Project Contract and government guarantee agreements (if applicable) with the selected Investor. For projects requiring government guarantees, relevant Ministries, sectors, and provincial People's Committees shall submit them.

2. The Project Contract must be negotiated in accordance with the contents of the Feasibility Study Report, Tender Documents, or Request for Proposal.

3. Depending on the project implementation requirements, related contracts (land lease, construction, installation of machinery and equipment, consulting services, inspection services, raw material procurement, product or service sales, management, operation, maintenance of facilities, technical service provision, loan, collateral, mortgage of assets, and other related contracts) may be negotiated concurrently with the Project Contract negotiations.

The competent state authority directly participates or supervises negotiations of contracts related to the implementation of the Project to ensure compliance with the Project Contract.

4. In case of successful negotiations, the Competent State Agency and the Investor shall sign a memorandum confirming the negotiation results and sign the Project Contract.

In case negotiations are unsuccessful, the competent state authority cancels the selection result and approves the next-ranked Investor for negotiation of the Project Contract.

Chapter IV

PROJECT CONTRACTS AND RELATED CONTRACTS

Article 43. Contents of the Project Contract and Related Contracts (Article 16 of Decree No. 108/2009/NĐ-CP)

1. The basic contents of the Project Contract are stipulated in Appendix II of this Circular. Depending on the objectives, nature, and scale of the Project, the competent state agency and the Investor (hereinafter referred to as the Parties) may agree on other contents provided that they do not contravene the provisions of Decree No. 108/2009/NĐ-CP, this Circular, and related legal documents.

2. The contents of related contracts for implementing the Project shall be agreed upon by the Parties in accordance with the Project Contract and current laws.

3. The Parties may agree on accompanying documents to the Project Contract including appendices, documents, and other papers aimed at confirming or detailing the contents of the Project Contract. These accompanying documents are integral parts of the Project Contract.

Article 44. Right to Accept the Project (Article 17 of Decree No. 108/2009/NĐ-CP)

1. When exercising the right to accept the Project as prescribed in Article 17 of Decree No. 108/2009/NĐ-CP, the lending party may continue implementing the Project or transfer the Project to another Investor.

2. The Investor receiving the transferred Project must meet the conditions stipulated in Clause 3 of Article 48 of this Circular.

3. The competent state agency, the Investor, the Project Enterprise, the lending party, and the Investor receiving the transferred Project shall agree to amend the Project Contract and complete the procedures to adjust the Investment Certificate in accordance with Article 48 of this Circular.

Article 45. Transfer of Rights and Obligations under the Project Contract (Article 18 of Decree No. 108/2009/NĐ-CP)

1. The Investor (the Transferring Party) may transfer part or all of its subscribed capital in the Project Enterprise to another Investor (the Receiving Party). In the case of transferring the entire subscribed capital of the Project Enterprise, the Receiving Party succeeds to all rights and obligations of the Transferring Party under the Project Contract and related contracts. In the case of transferring part of the subscribed capital, the Receiving Party becomes a party participating in the implementation of the Project Contract and related contracts together with the Transferring Party.

If the transfer of subscribed capital generates income, the Transferring Party must fulfill tax obligations according to the law on corporate income tax.

2. The Transferring Party must satisfy the following conditions:

a) Having contributed the full amount of the owner's capital to the Project Enterprise in accordance with the schedule committed in the Project Contract;

b) Having a commitment from the lending party or another sponsor to continue funding the Project;

c) Meeting the conditions for transferring share capital as prescribed by the law on enterprises.

3. The Receiving Party must satisfy the following conditions:

a) Having sufficient financial, technical, and management capabilities to implement the Project Contract and related contracts;

b) Committing to fully perform all rights and obligations of the Transferring Party as stipulated in the Project Contract and related contracts.

4. During the negotiation of the Transfer Contract, the Transferring Party must continue to fully perform all rights and obligations under the Project Contract.

5. The competent state agency is responsible for reviewing and approving the Transfer Contract and the transfer conditions specified in Clauses 2, 3, and 4 of this Article.

The Transfer Contract only takes effect after the Investment Certificate Issuing Authority issues an adjusted Investment Certificate in accordance with Clause 8 of this Article.

6. After the Transfer Contract is approved, the competent state agency, the Transferring Party, and the Receiving Party shall agree to amend the Project Contract and prepare a dossier to request adjustment of the Investment Certificate to be submitted to the Investment Certificate Issuing Authority.

7. In addition to the contents stipulated in Clause 2 of Article 48, the dossier requesting adjustment of the Investment Certificate must include the Transfer Contract and a document verifying the legal status (a copy of the establishment certificate or equivalent document) of the Receiving Party.

8. The process of examining the adjustment of the Investment Certificate shall be carried out in accordance with the corresponding regulations for examining the issuance of the Investment Certificate as stipulated in Clause 4 of Article 47 of this Circular.

Chapter V

PROCEDURES FOR ISSUING INVESTMENT CERTIFICATE

AND IMPLEMENTATION OF PROJECT

Article 46. Issuing Authority for Investment Certificate (Article 24 of Decree No. 108/2009/NĐ-CP)

1. Projects within the authority to issue Investment Certificates of the Ministry of Planning and Investment as stipulated in point c, Clause 1, Article 24 of Decree No. 108/2009/NĐ-CP are projects implemented on the territory of two provinces or centrally governed cities or more.

2. The People's Committee of the province shall issue Investment Certificates for projects not subject to the provisions of Clause 1, Article 24 of Decree No. 108/2009/NĐ-CP and other projects.

Article 47. Documents, Procedures, and Processes for Reviewing and Issuing Investment Certificates (Article 25 of Decree No. 108/2009/NĐ-CP)

1. The agency receiving the application documents for issuing Investment Certificates:

a) The Ministry of Planning and Investment receives and reviews the application documents for issuing Investment Certificates (hereinafter referred to as Project Documents) for projects specified in Clause 1, Article 24 of Decree No. 108/2009/NĐ-CP.

b) The Department of Planning and Investment of the province or centrally governed city receives Project Documents specified in Clause 2, Article 24 of Decree No. 108/2009/NĐ-CP.

2. Content of Project Documents:

a) Project Documents are prepared according to the provisions of Clause 2, Article 25 of Decree No. 108/2009/NĐ-CP. Draft contracts or other agreements related to project implementation (if any) must be submitted together with the Project Contract.

b) Other projects are prepared in separate documents and submitted together with the Project Documents for construction projects under Build-Transfer (BT) schemes.

c) The agency receiving Project Documents checks the validity of the documents and requests the Investor to supplement them (if necessary) within five working days from the date of receipt of the documents.

3. Content of the review:

a) In addition to the review content of projects as stipulated in Clause 3, Article 25 of Decree No. 108/2009/NĐ-CP, the issuing authority for Investment Certificates reviews contracts or other agreements related to project implementation (if any).

b) For BT projects, the review of other projects or payment conditions for Investors is carried out simultaneously with the review of construction projects under BT schemes.

For BT projects as stipulated in point a, Clause 1 of this Article, when reviewing investment construction projects under BT schemes, the Ministry of Planning and Investment considers the basic principles regarding payment conditions or conditions for implementing other projects. The People's Committee of the province implements the procedures for reviewing and issuing Investment Certificates for other projects.

4. Process for Reviewing and Issuing Investment Certificates:

a) For projects within the authority to issue Investment Certificates of the Ministry of Planning and Investment:

- Within three working days from the date of receipt of valid Project Documents as stipulated in Clause 2 of this Article, the Ministry of Planning and Investment sends a document seeking opinions of relevant Ministries, sectors, and localities (hereinafter referred to as Relevant Agencies);

- Within fifteen working days from the date of receipt of Project Documents, Relevant Agencies send their review opinions in writing to the Ministry of Planning and Investment on issues within their management authority;

- Within ten working days from the date of receipt of the review opinions of Relevant Agencies, the Ministry of Planning and Investment sends a document notifying the Investor of requirements to amend, supplement, or clarify in the Project Contract (if any);

- Within ten working days from the date of receipt of the request, the Investor sends the amended and supplemented Project Contract or clarifications on the contents of the Project Contract (if any) to the Ministry of Planning and Investment;

- Within seven working days from the date of receipt of the Investor’s explanation document, the Ministry of Planning and Investment examines the amended and supplemented contents in the Project Contract and related explanations. If the amended and supplemented contents do not meet the requirements, the Ministry of Planning and Investment sends a document requesting the Investor to provide further explanations. The Investment Certificate will only be issued after the Project Contract has been amended and supplemented in accordance with the requirements of the Ministry of Planning and Investment.

b) For projects within the authority to issue Investment Certificates of the People's Committee of the province:

- Within three working days from the date of receipt of valid Project Documents as stipulated in Clause 2 of this Article, the Department of Planning and Investment sends a document seeking opinions of relevant Departments, Bureaus, and Sectors (for Group A projects, projects requiring government guarantees, projects requiring central budget funds for payment or support to Investors, in addition to seeking opinions of provincial Departments, Bureaus, and Sectors, the Department of Planning and Investment seeks review opinions of the Ministry of Planning and Investment, the sectoral management ministry, and relevant localities, if any);

- Within fifteen working days from the date of receipt of Project Documents, Relevant Agencies review issues within their management authority;

- Within ten working days from the date of receipt of the review opinions of Relevant Agencies, the Department of Planning and Investment sends a document notifying the Investor of requirements to amend, supplement, or clarify in the Project Contract (if any);

- Within ten working days from the date of receipt of the request, the Investor sends the amended and supplemented Project Contract or clarifications on the contents of the Project Contract (if any) to the Department of Planning and Investment;

- Within seven working days from the date of receipt of the Investor’s explanation document, the Department of Planning and Investment examines the amended and supplemented contents in the Project Contract and related explanations. If the amended and supplemented contents do not meet the requirements, the Department of Planning and Investment sends a document requesting the Investor to provide further explanations. Based on the draft Project Contract that has been amended and supplemented in accordance with the requirements, the Department of Planning and Investment prepares a report for review and submits it to the People's Committee of the province for consideration and decision on issuing the Investment Certificate to the Investor.

5. Within seven working days from the date of signing the formal Project Contract, the Investor sends the Project Contract to the issuing authority for Investment Certificates for record-keeping and monitoring.

The Investor and the competent state agency are responsible for the accuracy and truthfulness of the formally signed Project Contract and the contents that have been amended and supplemented according to the requirements of the project review agency.

6. The Investment Certificate includes the contents prescribed in Model Nos. 3 and 4 of Appendix III of this Circular. The issuance of Investment Certificates for other projects is carried out in accordance with laws on investment, construction, and related legal documents.

Article 48. Documents, Procedures, and Formalities for Amending Investment Certificate

1. Investors shall carry out procedures to amend the Investment Certificate in cases stipulated in Articles 17, 18, 19, 20, and other amendment cases within the content of the Project Contract that change the already issued Investment Certificate.

2. Documents for Requesting Amendment of Investment Certificate:

The investor submits ten sets of documents, including at least one original set to the agency receiving project documents. The documents include the following contents:

a) A request for amending the Investment Certificate (in accordance with Model No. 5 in Appendix III of this Circular);

b) Report on the implementation status of the Project up to the time of requesting amendment;

c) Copy of the Investment Certificate;

d) Agreement on amendments and supplements to the Project Contract (if any).

đ) Legal documents (including a copy of the certificate of establishment or other equivalent documents).

3. Review Process:

The procedures, formalities, and content of reviewing the amendment of the Investment Certificate shall be carried out according to the corresponding regulations for reviewing the issuance of the Investment Certificate as stipulated in Clauses 3 and 4 of Article 47 of this Circular.

Article 49. Establishment and Management Organization of the Project Enterprise (Article 27 of Decree No. 108/2009/NĐ-CP)

1. For domestic investment projects, investors shall complete enterprise registration procedures to establish new project enterprises in accordance with the laws on enterprises.

2. For foreign investment projects, the Investment Certificate issued to foreign investors simultaneously serves as the Business Registration Certificate of the project enterprise.

3. In cases where the project enterprise has multiple shareholders or different shareholders, the founding shareholders must be the investors who signed the Project Contract with the competent state agency.

4. The project enterprise shall conduct activities in compliance with the provisions of the Project Contract, Investment Certificate, and Business Registration Certificate issued in accordance with Clause 1 or Clause 2 of this Article. The BT enterprise may concurrently be an enterprise implementing other projects.

Article 50. Organizing the Selection of Contractors Participating in the Implementation of Projects (Article 29 of Decree No. 108/2009/NĐ-CP)

1. For projects using 30% or more of state capital in total project investment (including equity capital and loans), the selection of consulting contractors, provision of goods, and construction must comply with the bidding laws and related legal documents. In such cases, the head of the project enterprise approves the bidding plan based on the written approval of the competent state agency.

2. The project enterprise independently decides on the selection of contractors participating in projects not covered by Clause 1 of this Article and other projects.

Article 51. Preparation of Technical Design, Supervision, and Acceptance of Construction Works of the Project (Article 31 of Decree No. 108/2009/NĐ-CP)

1. The project enterprise organizes the preparation and approval of technical design in accordance with the laws on construction. The competent state agency is responsible for inspecting and supervising the implementation of the technical design of the project construction works to ensure compliance with the Feasibility Study Report and the conditions agreed upon in the Project Contract. Any changes to the technical design compared to the Feasibility Study Report during the preparation and implementation process must be submitted to the competent state agency for review and decision.

2. The supervision of construction work and acceptance of BT construction works shall be carried out according to the procedures prescribed for projects using state funds.

Article 52. Final Settlement of Project Works (Articles 35, 36, and 37 of Decree No. 108/2009/NĐ-CP)

The final settlement of project works before transfer shall be carried out in accordance with Articles 35, 36, and 37 of Decree No. 108/2009/NĐ-CP, following the guidance of the Ministry of Finance.

Article 53. Summary and Evaluation of Project Implementation (Clause 8, Article 46 of Decree No. 108/2009/NĐ-CP).

1. The Ministry of Planning and Investment shall be responsible for summarizing, supervising, and evaluating the overall implementation of projects in accordance with Clause 8, Article 46 of Decree No. 108/2009/NĐ-CP and the Government's regulations on investment supervision and evaluation.

2. Ministries, sectors, provincial People's Committees, and investors shall implement investment supervision and evaluation in accordance with the Government's regulations on investment supervision and evaluation.

Chapter VI

IMPLEMENTING PROVISIONS

Article 54. Effective Date

This Circular takes effect from April 1, 2011.

Article 55. Transitional Provisions

1. Investors who have been granted Investment Certificates in accordance with Decree No. 108/2009/NĐ-CP prior to the effective date of this Circular shall continue to implement their projects in accordance with this Decree, the project contracts, and the Investment Certificates.

2. Projects whose tender documents and request documents were approved before the effective date of this Circular are encouraged to follow the investor selection procedures stipulated in this Circular.

Projects whose tender documents and request documents are approved from the effective date of this Circular must comply with the investor selection procedures stipulated in this Circular.

3. In other cases, ministries, sectors, and provincial People's Committees shall notify the Ministry of Planning and Investment in writing to continue research and guidance.

Article 56. Implementation organization

1. Ministries and sectors shall establish evaluation criteria for tender documents and proposal documents that are appropriate to the objectives, nature, and scale of projects under their jurisdiction, serving as a basis for tenderers to develop evaluation criteria for specific projects, but must include the main evaluation criteria prescribed in this Circular.

During the period when the evaluation criteria for tender documents and proposal documents have not yet been issued, tenderers shall prepare tender documents and request documents based on the provisions of this Circular.

2. If tenderers organize the selection of investors according to principles different from those stipulated in this Circular but ensure competitiveness and maximum efficiency, they may apply such principles and bear legal responsibility for their decisions. Within a maximum of ten working days from the approval date of the tender documents or request documents, tenderers shall submit these documents to the Ministry of Planning and Investment for monitoring and management.

3. Handling situations, making recommendations, and resolving complaints and violations in tendering may be conducted in accordance with the laws on tendering.

4. During the implementation of this Circular, if there are any issues, ministries, sectors, provincial People's Committees, and investors shall promptly report them to the Ministry of Planning and Investment for further study and guidance./.