Circular No. 09/2018/TT-BKHĐT guides the implementation of certain provisions of Government Decree No. 63/2018/NĐ-CP dated May 4, 2018 on investment under the public-private partnership (PPP) model.

CIRCULAR

Guidelines for implementing certain provisions of Decree No. 63/2018/NĐ-CP dated May 4, 2018 of the Government on investment under the public-private partnership modeldated May 4, 2018 of the Government on investment under the public-private partnership model

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

Pursuant to the Investment Law number 67/2014/QH13 dated November 26, 2014;

Pursuant to the Law on Bidding No. 43/2013/QH13 dated November 26, 2013;

Pursuant to the Construction Law No. 50/2014/QH13 dated June 18, 2014;

Pursuant to Decree No. 63/2018/NĐ-CP dated May 4, 2018 of the Government on public-private partnership investment;

Article 1. Scope

The Minister of Planning and Investment issues this Circular guiding the implementation of certain provisions of Decree No. 63/2018/NĐ-CP dated May 4, 2018 of the Government on investment under the public-private partnership model.

PART I

GENERAL PROVISIONS

Article 1. Scope of Regulation and Applicability

1. This Circular guides the content of preparing and reviewing the pre-feasibility study report, feasibility study report of PPP projects, the content of PPP project contracts, and other relevant contents as stipulated in Clause 2, Article 68 of Decree No. 63/2018/NĐ-CP.

2. This Circular applies to Ministries, ministerial-level agencies, agencies under the Government (hereinafter referred to as Ministries and sectors), People's Committees of provinces and centrally-run cities (hereinafter referred to as Provincial People's Committees); agencies, organizations, units assigned tasks or granted authority pursuant to Clause 3 and Clause 4, Article 8 of Decree No. 63/2018/NĐ-CP; investors, project enterprises; lenders and related agencies, organizations, and individuals in the implementation of PPP projects.

Article 2. Content of preparing and reviewing pre-feasibility study reports, feasibility study reports, and contract content

1. Pre-feasibility study reports and feasibility study reports shall be prepared in accordance with Article 18 and Article 29 of Decree No. 63/2018/NĐ-CP and the guidelines set out in Appendices I and III attached hereto. For Group C projects proposed by investors, the project proposal dossier shall be prepared in accordance with Article 23 of Decree No. 63/2018/NĐ-CP, wherein the feasibility study report content shall be prepared based on the guidelines set out in Appendix III attached hereto.

2. The review report of the pre-feasibility study report shall be prepared based on the guidelines set out in Appendix II attached hereto.

3. The review report of the feasibility study report shall be prepared in accordance with Clause 2 and Clause 3, Article 30 of Decree No. 63/2018/NĐ-CP and the guidelines set out in Appendix IV attached hereto.

4. The PPP project contract shall be prepared based on the guidelines set out in Appendices V.a and V.b attached hereto.

5. Depending on the nature, scale, and field of each specific project, organizations and individuals shall apply Appendices I, II, III, IV, V.a, and V.b attached hereto to prepare and review pre-feasibility study reports, feasibility study reports, draft PPP project contracts. In addition to the contents prescribed in these appendices, pre-feasibility study reports, review reports of pre-feasibility study reports, feasibility study reports, review reports of feasibility study reports, and project contracts may include other contents provided that they do not contravene the provisions of Decree No. 63/2018/NĐ-CP, this Circular, and related legal documents.

Article 3. State authorities authorized to sign and implement PPP project contracts assigned by the Prime Minister in accordance with Clause 1, Article 8 of Decree No. 63/2018/NĐ-CP

In cases where projects fall within the functions, tasks, and powers of multiple Ministries and sectors, Provincial People's Committees, such Ministries and sectors, Provincial People's Committees shall reach consensus and report

Article 4. Selection of project proposal files in cases where two or more investors submit project proposal files according to Clause 2, Article 24 of Decree No. 63/2018/NĐ-CP.

1. In cases where a project has already received a project proposal file from one investor, the Ministry, sector, or provincial People's Committee shall accept project proposal files from other investors when the projects have the same objectives, implementation locations, and comply with planning within a period not exceeding ten working days from the date of receipt of the first investor’s project proposal file.

2. Criteria for selecting the project proposal file with the highest feasibility and effectiveness include:

a) Conditions stipulated in Clause 1, Article 20 of Decree No. 63/2018/NĐ-CP;

b) The necessity of investment;

c) Technical feasibility, including land use plans;

d) Economic and social benefits of the project;

đ) Financial feasibility of the project;

e) The capacity and experience of the investor to organize the preparation of pre-feasibility study reports and feasibility study reports proposed by themselves.

3. Based on specific conditions and requirements for implementing the project, the Ministry, sector, or provincial People's Committee shall decide on the evaluation method to compare and select the project proposal file with the highest feasibility and effectiveness, including determining the weightage among factors specified in Points c, d, đ, and e of Clause 2 of this Article.

Article 5. Approval of the policy to convert and feasibility study report of the converted project according to Clause 1, Article 27 of Decree No. 63/2018/NĐ-CP.

The competent authority approving the policy to convert and feasibility study report of the converted project shall implement according to Clause 1, Article 27 of Decree No. 63/2018/NĐ-CP. In cases where the previous public investment project was decided by the district or commune People's Committee, the district or commune People's Committee shall report to the provincial People's Committee for examination and approval of the policy to convert and feasibility study report of the converted project.

Article 6. Implementation of projects applying the BT contract type according to Article 33 of Decree No. 63/2018/NĐ-CP.

1. For Group C projects applying the BT contract type, the project implementation procedures shall be carried out according to Clause 2, Article 9 of Decree No. 63/2018/NĐ-CP; simultaneously, the project needs to be prepared, reviewed, and approved for design and budget estimates before organizing the selection of investors according to Points c, d, đ of Clause 1, Article 33 of Decree No. 63/2018/NĐ-CP.

2. In cases where a public investment project is converted to a PPP investment project applying the BT contract type, after the competent authority approves the policy to convert and feasibility study report of the converted project, the implementation procedures of the converted project shall be carried out according to Points c, d, and đ of Clause 1, Article 33 of Decree No. 63/2018/NĐ-CP.

Article 7. Hybrid contracts according to Clause 3, Article 40 of Decree No. 63/2018/NĐ-CP.

1. In cases where hybrid contract types are proposed, the project preparation unit or investor must provide detailed explanations on the following contents:

a) The necessity and advantages of applying hybrid contract types compared to contract types stipulated in Clauses 3, 4, 5, 6, 7, 8, and 9 of Article 3 of Decree No. 63/2018/NĐ-CP;

b) Objectives and main functions of the project; project implementation procedures and corresponding decision-making authorities;

c) Feasibility of construction, ownership, management, operation, exploitation, and transfer methods of the project facilities; financial plan;

d) Proposed tender evaluation principles for selecting suitable investors in accordance with the proposed contract type.

2. In cases where hybrid contract types include the BT contract type: provide detailed explanations on the preparation, review, approval, quality supervision, and transfer to the competent state agency for the project components applying the BT contract type.

Article 8. Disclosure of project information and project contract information

1. Within seven working days from the date the competent authority decides on the investment orientation or approves the feasibility study report for Group C projects, project information and the list of projects shall be published in accordance with Article 21 of Decree No. 63/2018/NĐ-CP.

2. Within seven working days from the date of signing the project contract, the tenderer shall be responsible for disclosing project contract information in accordance with Article 41 of Decree No. 63/2018/NĐ-CP, except for confidential contents agreed upon in the project contract or as provided by laws on confidentiality.

Article 9. Implementation Organization

1. This Circular takes effect from February 15, 2019.

2. This Circular replaces Circular No. 02/2016/TT-BKHĐT dated March 1, 2016, issued by the Minister of Planning and Investment guiding preliminary selection of projects, preparation, review, approval of project proposals, and feasibility studies for public-private partnership investment projects, and Circular No. 06/2016/TT-BKHĐT dated June 28, 2016, issued by the Minister of Planning and Investment guiding implementation of certain provisions of Decree No. 15/2015/NĐ-CP dated February 14, 2015, of the Government on public-private partnership investment.

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

4. In the course of implementation, if there are difficulties, the relevant ministries, ministerial-level agencies, government agencies, central-level agencies, People's Committees at all levels, and related agencies, organizations, and individuals are requested to send their comments to the Ministry of Planning and Investment for timely consideration and resolution. In cases where new issues not specifically regulated arise, they should be reported.