Circular No. 09/2022/TT-BGTVT guiding certain contents on the method, standards for evaluating bidding documents to select investors under the public-private partnership model and the model of construction-operation-transfer contracts in the transport sector.

CIRCULAR

Guidelines on certain contents regarding methods and criteria for evaluating tender documents in selecting investors under the public-private partnership model and the construction-operation-transfer contract model in the transportation sector

construction - operation - transfer in the transportation industry

Pursuant to the Public-Private Partnership Investment Law dated June 18, 2020;

Pursuant to the Law Amending and Supplementing Certain Provisions of the Public Investment Law, the Public-Private Partnership Investment Law, the Investment Law, the Housing Law, the Bidding Law, the Electricity Law, the Enterprise Law, the Special Consumption Tax Law, and the Civil Enforcement Act dated January 11, 2022;

Pursuant to Decree No. 28/2021/NĐ-CP dated March 26, 2021 of the Government stipulating the financial management mechanism for investment projects under the public-private partnership model;

Pursuant to Decree No. 35/2021/NĐ-CP dated March 29, 2021 of the Government detailing and guiding the implementation of the Law on Public-Private Partnership;

Pursuant to the Government Decree No. 12/2017/NĐ-CP dated February 10, 2017 stipulating the functions, tasks, powers, and organizational structure of the Ministry of Transport;

At the proposal of the Director of the Construction Management and Transportation Project Quality Control Department;

The Minister of Transport issues this Circular guiding certain contents regarding methods and criteria for evaluating tender documents in selecting investors under the public-private partnership model and the construction-operation-transfer contract model (hereinafter referred to as BOT contract) in the transportation sector.

 PART I

GENERAL PROVISIONS

This Circular guides certain contents regarding methods and criteria for evaluating tender documents in selecting investors under the public-private partnership model and the construction-operation-transfer contract (hereinafter referred to as BOT contract) in the transportation sector.

Article 2. Applicability

This Circular applies to organizations and individuals participating in or related to the activity of selecting investors under the public-private partnership model and signing BOT contracts in the transportation sector.

2. Industrial emission testing must ensure timeliness, accuracy, objectivity, compliance with procedures, and adherence to legal provisions.

1. In Appendices I, II, III, and IV issued together with this Circular, the contents printed upright are mandatory and must be applied, while the contents printed in italics serve as guidance and are further specified based on the scale, nature, and specific conditions (if any) of each field and each project but shall not include any standards or conditions that restrict the participation of investors or provide advantages to one or several investors.

2. Evaluation criteria must be publicly disclosed in the bidding invitation document (hereinafter referred to as BID). During the process of evaluating tender documents (hereinafter referred to as TENDER), the evaluation criteria stated in the BID must be adhered to without any changes or additions.

3. The BOT contract signed between the Contracting Authority and the investor, project enterprise (hereinafter referred to as PEO) shall be implemented according to the model of the BOT contract prescribed in Appendix IV issued together with this Circular. During the negotiation and completion of the contract, the parties may propose adjustments and supplements to the contract content ensuring that the basic content of the TENDER is not altered and does not contravene the provisions of the BID, laws on investment under the public-private partnership model, and relevant laws.

4. For types of Build-Transfer-Operate (BTO) contracts, Build-Own-Operate (BOO) contracts, Build-Transfer-Lease (BLT) contracts, Build-Lease-Transfer (BTL) contracts, and hybrid contracts: During implementation, the Tenderer may refer to the appropriate contents of the model of the BOT contract prescribed in Appendix IV issued together with this Circular to develop the model of the contract in the BID ensuring suitability with the type of contract, the special characteristics of each field and project, and relevant legal provisions.

Chapter II

EVALUATION METHODS AND CRITERIA FOR TENDER DOCUMENTS

Article 4. Evaluation of tender documents

The method of evaluating tender documents through evaluation criteria in the tender announcement includes:

1. Evaluating the technical proposal submission (hereinafter referred to as the Technical Proposal Submission) for projects applying open tendering and competitive negotiations as stipulated in Clause 1, Article 38 of the Law on Public-Private Partnership (hereinafter referred to as the PPP Law) according to the following methods:

a) Checking and evaluating the validity of the Technical Proposal Submission: Implemented in accordance with Clause 1 and Clause 2, Article 56 of Decree No. 35/2021/NĐ-CP dated March 29, 2021 of the Government detailing and guiding the implementation of the PPP Law (hereinafter referred to as Decree No. 35/2021/NĐ-CP).

b) Evaluating capacity and experience: For projects applying open tendering with prequalification, implemented in accordance with Point a, Clause 3, Article 56 of Decree No. 35/2021/NĐ-CP; for projects applying open tendering without prequalification and competitive negotiations as stipulated in Clause 1, Article 38 of the PPP Law, the evaluation of capacity and experience shall be carried out in accordance with the provisions of Article 5 of this Circular; Investors whose Technical Proposal Submissions are evaluated as valid and meet the requirements of capacity and experience will be further detailedly evaluated regarding technical aspects.

c) Detailed technical evaluation: Implemented in accordance with the provisions of Article 6 of this Circular. Investors meeting the technical requirements will be reviewed and evaluated regarding financial-commercial proposal submissions.

2. Evaluating the financial-commercial proposal submission for projects applying open tendering and competitive negotiations as stipulated in Clause 1, Article 38 of the PPP Law.

a) Checking and evaluating the validity of the financial-commercial proposal submission: Implemented in accordance with Clause 1 and Clause 2, Article 59 of Decree No. 35/2021/NĐ-CP;

b) Correcting errors and adjusting discrepancies: Implemented in accordance with Clause 1, Item 2, Part B, Chapter III, Appendix IV issued together with Circular No. 09/2021/TT-BKHĐT dated November 16, 2021 of the Ministry of Planning and Investment guiding the selection of investors to implement projects under the PPP model and projects using land (hereinafter referred to as Circular No. 09/2021/TT-BKHĐT);

c) Method and criteria for evaluation: Implemented in accordance with the provisions of Article 7 of this Circular.

3. Evaluation of tender documents for cases where projects apply investor designation as stipulated in Point a, Clause 1, Article 39 of the PPP Law.

4. Evaluation of tender documents for cases where projects apply investor designation as stipulated in Point b, Clause 1, Article 39 of the PPP Law.

a) Evaluating eligibility: Implemented in accordance with Article 29 of the PPP Law and Clause 5, Article 29 of Decree No. 35/2021/NĐ-CP;

b) Evaluating capacity and experience: Implemented in accordance with the provisions of Article 5 of this Circular.

Article 5. Methods and criteria for evaluating capacity and experience

1. Assessment methods

a) For independent investors: Implement according to the provisions at Clause 3.1 Section 3 Part A Chapter III Appendix IV issued together with Circular No. 09/2021/TT-BKHĐT;

b) For joint venture investors: Implement according to the provisions at Clause 3.1 and Clause 3.2 Section 3 Part A Chapter III Appendix IV issued together with Circular No. 09/2021/TT-BKHĐT.

2. Evaluation criteria: Implement according to the provisions at Appendix I issued together with this Circular.

Article 6. Methods and criteria for evaluating technical aspects

1. Assessment method: Implement according to the provisions at Clause 4.1 Section 4 Part A Chapter III Appendix IV issued together with Circular No. 09/2021/TT-BKHĐT.

2. Evaluation criteria: Implement according to the provisions at Appendix II issued together with this Circular.

Article 7. Methods and criteria for evaluating financial-commercial aspects

1. Based on the scale and nature of the project, the tenderer must determine one of the following methods to compare and rank investors who meet the requirements of financial-commercial aspects:

a) Ranking based on the standard of state capital support for construction of works and infrastructure systems (VGF) (not applicable to PPP projects with sub-projects using public investment funds as stipulated in Point a, Clause 5, Article 70 of the PPP Law), other contents such as payback period, price, product fee, and related factors clearly defined in the tender announcement.

The investor proposing the lowest amount of state capital support for construction will be ranked first and proposed as the successful bidder.

In case the investor belongs to the group eligible for preferential treatment, the value of state capital support for construction of that investor must be calculated before ranking the investor according to the formula specified in Item CDNĐT 26.3, Part I, Chapter II, Appendix IV issued together with Circular No. 09/2021/TT-BKHĐT.

In case two or more investors propose the same amount of state capital contribution, the ranking of investors will be based on the technical evaluation results. If the scoring method is used, the tender document of the investor with higher technical score will be ranked first.

In case the pass/fail method is used, the tender document of the investor with fewer non-critical criteria being accepted will be ranked first.

b) Ranking based on the standard of price, product fee, public service fee, other contents such as standards for assets and services of the project, contract execution time, and related factors clearly defined in the tender announcement.

The investor proposing the lowest price and product fee will be ranked first and recommended as the winner. In case the investor belongs to the group eligible for preferential treatment, the price and product fee of that investor must be calculated before ranking the investor according to the formula specified in Item CDNĐT 26.3, Part I, Chapter II, Appendix IV of the tender document template issued together with Circular No. 09/2021/TT-BKHĐT.

In case two or more investors propose the same lowest price and product fee, the ranking of investors will be based on the technical evaluation results. If the scoring method is used, the tender document of the investor with higher technical score will be ranked first. If the pass/fail method is used, the tender document of the investor with fewer non-critical criteria being accepted will be ranked first.

c) Method of comparing and ranking based on the standard of social benefit, state benefit, other relevant contents clearly defined in the Tender Document.

The investor proposing the highest budget revenue submission or shortest contract implementation period will be ranked first and proposed as the successful bidder.

In case the investor belongs to the group eligible for preferential treatment, the value of proposed state budget payment or contract execution period of that investor must be calculated before ranking the investor according to the formula specified in Item CDNĐT 26.3, Part I, Chapter II, Appendix IV of the tender document template issued together with Circular No. 09/2021/TT-BKHĐT.

In case two or more investors propose the same highest state budget payment or shortest contract execution period, the ranking of investors will be based on the technical evaluation results. If the scoring method is used, the tender document of the investor with higher technical score will be ranked first. If the pass/fail method is used, the tender document of the investor with fewer non-critical criteria being accepted will be ranked first.

d) Method of comparing and ranking based on combined standards implemented according to the provisions at Appendix III issued together with this Circular.

2. Based on the scale, nature of the project, and evaluation criteria determined in accordance with Clause 1 of this Article, the tenderer shall clearly state the financial-commercial evaluation contents in accordance with Point 2.2.2 Section 2 Part B Chapter III Appendix IV issued together with Circular No. 09/2021/TT-BKHĐT.

Chapter III

MODEL BOT CONTRACT

Article 8. Agreement Documents of the Parties Regarding the Contract

Agreement documents of the parties regarding the contract include: Legal basis for signing the project contract; general information about the contracting parties (contracting authority, investor, project enterprise); contract file and order of legal priority; duration of the contract and the effective date of the contract.

Article 9. General Conditions of the Contract

The general conditions of the contract consist of common clauses applicable to BOT Contracts in the transportation sector.

Article 10. Specific Conditions of the Contract

The specific conditions of the contract clarify the contents corresponding to the general conditions of BOT Contracts in the transportation sector.

Article 11. Appendices to the Contract

Annexes to the contract are part of the project contract. In necessary cases, the contract may have annexes attached to detail certain clauses of the contract.

Chapter IV

IMPLEMENTATION

Article 12. Transitional Provisions

1. For tender documents that have been approved before the effective date of this Circular but have not yet been issued, the tenderer shall base on the provisions of this Circular to amend and supplement and submit to the competent authority (hereinafter referred to as CA) for approval of adjustment.

2. For tender documents that have been issued before the effective date of this Circular but have not yet been approved for selecting investors, continue to evaluate tender submissions based on the issued tender documents.

3. For projects that have selected investors before the effective date of this Circular, the CA, Contracting Authority, and investor, Project Enterprise shall negotiate and sign the contract based on the issued tender documents and tender submissions submitted by the investor.

4. For projects that have signed contracts before the effective date of this Circular, they shall continue to be implemented according to the signed project contract. During implementation, if there are adjustments or supplements to the contract, the CA, Contracting Authority, and investor, Project Enterprise shall organize negotiations and discussions based on the provisions of this Circular to sign appendices to the contract for implementation.

Article 13. Effective Date

1. This Circular takes effect from October 1, 2022.

2. In case the legal normative documents cited in this Circular are amended, supplemented, or replaced, they shall be applied in accordance with the provisions of the amended, supplemented, or replaced legal normative documents.

Article 14. Implementation Organization

The Head of the Ministry's Office, the Inspector General of the Ministry, Heads of Departments, Directors of Vietnam Highway Administration, Directors of Departments under the Ministry of Transport, Directors of Project Management Units under the Ministry of Transport, Directors of Provincial Transport Departments, Heads of agencies, units, and individuals related shall be responsible for implementing this Circular./.