Decree No. 108/2009/ND-CP On investment under Build-Operate-Transfer (BOT) Contract, Build-Transfer-Operate (BTO) Contract, and Build-Transfer (BT) Contract.

DECREE

Regarding investment under the form of build-operate-transfer contracts,

build-transfer-operate contracts, build-transfer contracts,

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THE GOVERNMENT

Pursuant to the Law on Organization of the Government dated December 25, 2001;

Based on the Investment Law dated November 29, 2005;

Pursuant to the Construction Law dated November 26, 2003;

Pursuant to the Enterprise Law dated November 29, 2005;

Pursuant to the Law Amending and Supplementing Certain Provisions of Laws Related to Basic Construction Investment dated June 19, 2009;

The Prime Minister issues this Decision on principles, criteria, and allocation standards for state budget investment capital development phase 2016-2020.

DECREE:

PART I

GENERAL PROVISIONS

Article 1. Scope and objects regulated

1. This Decree stipulates the scope, conditions, procedures for investment, investment incentives; rights and obligations of parties participating in Build-Operate-Transfer Contracts, Build-Transfer-Operate Contracts, and Build-Transfer Contracts.

For other similar project contract forms, the Ministry of Planning and Investment shall submit to the Prime Minister for consideration and decision on a case-by-case basis.

2. The objects regulated by this Decree include investors, competent state agencies signing and implementing project contracts, and organizations, individuals, enterprises related to the implementation of projects as prescribed in this Decree.

Article 2. Interpretation of Terms

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

1. The Build-Operate-Transfer Contract (hereinafter referred to as BOT Contract) is a contract signed between a competent state agency and an investor to construct, operate infrastructure works within a specified period; at the end of the period, the investor transfers the work无偿移交给越南国家。

2. The Build-Transfer-Operate Contract (hereinafter referred to as BTO Contract) is a contract signed between a competent state agency and an investor to construct infrastructure works; after completion, the investor transfers the work to the Vietnamese State; the Government grants the investor the right to operate the work for a specified period to recover investment capital and profit.

3. The Build-Transfer Contract (hereinafter referred to as BT Contract) is a contract signed between a competent state agency and an investor to construct infrastructure works; after completion, the investor transfers the work to the Vietnamese State; the Government facilitates the investor to implement another project to recover investment capital and profit or pay the investor according to the agreement in the BT Contract.

4. Project refers to a project implemented under the BOT Contract, BTO Contract, and BT Contract, including national key projects and other projects classified into Groups A, B, and C as prescribed by construction laws.

5. Other projects refer to one or more different projects assigned by a competent state agency to an investor for implementation under the terms agreed upon in the project contract.

6. Project contract refers to the BOT Contract, BTO Contract, and BT Contract as stipulated respectively in Clauses 1, 2, and 3 of this Article and accompanying documents.

7. Investor refers to an organization or individual as prescribed by the Investment Law.

8. BOT Enterprise, BTO Enterprise, BT Enterprise (hereinafter collectively referred to as Project Enterprise) is an enterprise established by the investor to design, construct, operate, and manage the project infrastructure and to implement other projects.

9. Feasibility Study Report (Investment Project for Infrastructure Construction) is a collection of proposals related to funding for designing, constructing, and operating and managing infrastructure works under the BOT Contract, BTO Contract, and BT Contract.

10. Infrastructure works refer to works encouraged to be implemented as prescribed in Article 4 of this Decree.

11. Project works refer to BOT works, BTO works, and BT works.

Article 3. State agencies authorized to conclude and implement Project Contracts

1. State agencies authorized to conclude and implement Project Contracts are Ministries, ministerial-level agencies, government agencies, provincial People's Committees, and municipal People's Committees directly under the central government (hereinafter referred to collectively as Ministries, sectors, and provincial People's Committees).

2. Based on their functions, tasks, authorities, and specific management conditions, Ministries, sectors, and provincial People's Committees may delegate authority to subordinate agencies to conclude and implement Group B and Group C Project Contracts.

3. The state agency authorized to conclude and implement Project Contracts is a party to the Project Contract and performs rights, obligations, and responsibilities agreed upon with the Investor in the Project Contract.

4. Depending on the nature and scale of the Project, the state agency authorized shall establish a specialized unit or designate its specialized agency to be responsible for organizing the implementation of its rights and obligations as stipulated in the Project Contract, but in all cases must bear full responsibility for the obligations it has committed to in the Project Contract.

Article 4. Investment Fields

1. The Government encourages the implementation of Projects to construct and operate and manage new infrastructure works or Projects to renovate, expand, modernize, and operate and manage existing works in the following fields:

a) Roadways, road bridges, road tunnels, ferry terminals;

b) Railways, railway bridges, railway tunnels;

c) Airports, seaports, river ports;

d) Water supply systems; drainage systems; wastewater collection and treatment systems, waste disposal systems;

e) Power plants, power transmission lines;

f) Other infrastructure works as decided by the Prime Minister.

2. For the works mentioned in point e of Clause 1 of this Article, Ministries, sectors, and provincial People's Committees shall seek written opinions from relevant Ministries, sectors, and localities to submit to the Prime Minister for consideration and decision in each specific case.

Article 5. Sources of Funds for Implementing Projects

1. The Investor or Project Enterprise must arrange funds to implement the Project according to the agreement in the Project Contract.

2. For Projects with total investment up to VND 15,000 billion, the equity ratio of the Project Enterprise must not be lower than 15% of the total investment of the Project.

3. For Projects with total investment over VND 15,000 billion, the equity ratio of the Project Enterprise shall be determined progressively as follows:

a) For the portion of investment up to VND 15,000 billion, the equity ratio of the Project Enterprise must not be lower than 15% of this portion;

b) For the portion of investment over VND 15,000 billion, the equity ratio of the Project Enterprise must not be lower than 10% of this portion;

4. Other Projects must meet the requirements for equity capital (if any) as prescribed by law.

Article 6. Use of State Funds to Implement Projects

1. The total state funds participating in implementing the Project must not exceed 49% of the total investment of the Project.

2. For Projects that need to be implemented to meet urgent needs for the use of infrastructure works and other important Projects, Ministries, sectors, and provincial People's Committees shall consider and decide on the use of state budget funds to build auxiliary works, organize compensation, land clearance, resettlement, or carry out other tasks aimed at supporting the implementation of the Project.

3. The source of funds for supporting the implementation of the Project as provided for in Clause 2 of this Article shall not be included in the total investment of the Project and shall be managed and used in accordance with regulations applicable to projects using state funds.

Article 7. Inter-ministerial Working Group

1. Depending on the negotiation and implementation needs of the Project, the competent state agency shall establish an Inter-ministerial Working Group to support negotiations and implementation of the Project (hereinafter referred to as the Inter-ministerial Working Group). The composition of the Inter-ministerial Working Group includes:

a) Some members representing the competent state agency;

b) Representatives of central and local agencies where the Project is expected to be implemented or related to the Project;

c) Other independent legal, technical, and financial experts as decided by the competent state agency.

2. The Inter-ministerial Working Group has the following tasks:

a) Participate in negotiating the Project Contract and assist the competent state agency in performing the tasks prescribed in this Decree;

b) Participate in resolving issues arising during the Project implementation process;

c) Perform other tasks as required by the competent state agency.

3. The duration of operation of the Inter-ministerial Working Group is determined by the competent state agency based on the requirements for implementing the Project.

Article 8. Investment Preparation Costs and Performance of Duties and Powers of the Competent State Agency

1. Costs for establishing and publishing the Project List, organizing the selection of Investors, and other costs related to the performance of duties and responsibilities of the competent state agency shall be allocated from the state budget based on the approved budget estimate by the authorized authority.

2. Costs for preparing and reviewing the Feasibility Study Report of the Project or the Project Proposal, including costs related to preparing other Projects (excluding the Project Proposal prepared by the Investor according to Article 11 of this Decree), shall be allocated from the state budget and other sources of revenue (if any).

3. Depending on the nature and scale of the Project, the selected Investor must pay the competent state agency the preparation costs mentioned in Clause 2 of this Article.

Chapter II

CONSTRUCTION AND PUBLICATION OF THE PROJECT LIST

Article 9. Construction of the Project List

1. Based on planning and socio-economic development plans for each period and the provisions of Article 4 of this Decree, ministries, sectors, provincial People's Committees organize the establishment of the BOT Project List, BTO Project List, and BT Project List of their respective sectors and localities (hereinafter referred to as the Project List).

2. Each Project included in the Project List must contain the following main contents:

a) Project name;

b) Project objectives;

c) Expected location for Project implementation and other Projects (if any);

d) Summary of key technical parameters and estimated total investment capital for Project implementation;

đ) Name, address, telephone number, fax number of the competent state agency signing and implementing the Project Contract.

3. Depending on the objectives, nature, and location of each Project in the Project List, ministries, sectors, and provincial People's Committees send the Project List to relevant ministries, sectors, and localities for comments.

4. The documents seeking opinions from the agencies mentioned in Clause 3 of this Article must explain the objectives, locations, designed capacity, estimated investment capital, minimum technical and financial requirements of each Project in the Project List.

5. Based on their functions, tasks, and powers as stipulated by law, relevant ministries, sectors, and localities provide written comments on the issues mentioned in Clause 4 of this Article and other issues within thirty working days from the date of receipt of the Project List.

6. The Project List may be amended or supplemented in cases where there are changes in sectoral or local planning and socio-economic development plans or due to changes in the Projects included in the published Project List.

Article 10. Publication of Project List

1. Within the first month of each year, Ministries, sectors, and provincial People's Committees shall publish the Project List on their respective electronic information websites and post it consecutively for three issues in the Bid Invitation Newspaper. The published Project List must include the main contents prescribed in Clause 2 of Article 9 of this Decree.

2. The minimum time period for Investors to select and register to implement Projects with competent State agencies is thirty working days from the date the Project List is last uploaded as stipulated in Clause 1 of this Article.

3. Upon expiration of the period specified in Clause 2 of this Article, competent State agencies shall post the list of Investors who have submitted registration documents to implement Projects on the Bid Invitation Newspaper and on the electronic information websites of Ministries, sectors, and localities.

Article 11. Projects Proposed by Investors

1. Investors may propose to implement Projects outside the published Project List and must prepare a Project Proposal to be submitted to Ministries, sectors, and provincial People's Committees for approval.

2. The Project Proposal shall include the contents prescribed in Clause 2 of Article 12.

3. The dossier for requesting approval of the Project Proposal shall include the following contents:

a) A document requesting approval of the Project Proposal;

b) Documents proving the legal status and financial and technical capacity of the Investor;

c) Introduction of the Investor's financial capacity and experience in implementing similar projects (if any);

d) Other necessary documents for explaining the Project Proposal.

4. Ministries, sectors, and provincial People's Committees shall accept Project Proposals within their functional scope and responsibilities and proceed to examine and approve the Project Proposals according to the provisions of Clauses 3, 4, and 5 of Article 9 of this Decree.

For Project Proposals not included in the industry development plan, Ministries, sectors, and provincial People's Committees shall consider supplementing the plan within their authority or submit to the Prime Minister for consideration and approval to supplement the plan.

5. In cases where the Project Proposal is approved, Ministries, sectors, and provincial People's Committees shall decide to add the Project to the Project List and publish the basic contents of the Project on their electronic information websites and post it consecutively for three issues in the Bid Invitation Newspaper. If there is no other Investor registering to participate within a minimum period of thirty working days from the last publication date, Ministries, sectors, and provincial People's Committees shall decide to appoint the Investor whose Project Proposal has been approved to negotiate the Project Contract.

6. In cases where another Investor registers to implement the Project, Ministries, sectors, and provincial People's Committees must organize a bidding process to select the Investor according to the provisions of Article 13 of this Decree.

Article 12. Preparation and Approval of Project Proposals and Feasibility Study Reports

1. Depending on the nature and scale of the Project, competent State agencies shall organize the preparation of a Feasibility Study Report or a Project Proposal as the basis for preparing tender documents and organizing negotiations for the Project Contract with Investors.

2. The Project Proposal shall include the following contents:

a) Analysis of the necessity and advantages of implementing the Project under the BOT Contract, BTO Contract, or BT Contract compared to other investment forms;

b) Estimated capacity, location, construction area, project components, land requirements;

c) Preliminary analysis and selection of technology and techniques; conditions for supplying materials, equipment, raw materials, energy, services, technical infrastructure; land clearance and resettlement plans (if applicable); impact of the Project on the ecological environment, fire prevention, and security;

d) Preliminary determination of the total investment capital of the Project;

đ) Determination of types of prices and fees for goods and services expected to be collected from the operation of the facility;

e) Preliminary determination of the construction and operation period of the facility, management and business organization methods (for BOT and BTO Projects);

g) Conditions and methods of transferring and receiving the facility in accordance with the provisions of Chapter VI of this Decree;

h) Proposal for applying investment incentives, support, and government guarantees (if applicable) in accordance with the provisions of Chapter VII of this Decree;

i) Preliminary evaluation of the economic and social effectiveness of the Project;

k) For BT Projects, in addition to the contents mentioned in points a, b, c, d, g, h, and i of this clause, the Project Proposal must determine payment conditions or other implementation conditions of the Project.

3. The Feasibility Study Report for BOT and BTO Projects shall include the contents prescribed by laws on construction and corresponding contents prescribed in Clause 2 of this Article.

4. For BT Projects, in addition to the contents prepared in accordance with laws on construction, the Feasibility Study Report must include the contents prescribed in points a, b, c, d, g, h, i, and k of Clause 2 of this Article.

5. The authority to approve Feasibility Study Reports and Project Proposals is as follows:

a) The Prime Minister shall approve Feasibility Study Reports and Project Proposals for national key projects according to the Resolution of the National Assembly, Projects requiring land use of 200 hectares or more, Projects requiring government guarantees, and Group A Projects with total investment capital of 1.5 trillion VND or more;

b) Ministers, Heads of ministerial-level agencies, and Chairmen of provincial People's Committees shall approve Feasibility Study Reports and Project Proposals for remaining Projects in Groups A, B, and C.

Chapter III

SELECTION OF INVESTORS FOR NEGOTIATING PROJECT CONTRACTS

Article 13. Tendering to Select Investors

For Projects listed in the published Project Catalogue where two or more investors have registered to implement, the competent state agency must organize domestic or international open tendering to select investors.

Article 14. Designating Investors

The designation of investors may only be applied when one of the following conditions is met:

1. Within the time limit specified in Clause 2, Article 10 of this Decree, there is only one investor registering to implement the Project;

2. In the case stipulated in Clause 5, Article 11 of this Decree;

3. The Project needs to be implemented urgently to meet the demand for the use of infrastructure works decided by the Prime Minister based on the proposal of Ministries, sectors, provincial People's Committees, and the report of the Ministry of Planning and Investment.

Article 15. Negotiating and Signing the Project Contract and Related Contracts

1. Based on the results of selecting investors as prescribed in Articles 13 and 14 of this Decree, the competent state agency shall organize negotiations with the selected investor regarding the Project Contract.

2. The rights and obligations of the Project Enterprise, the right to accept the Project as stipulated respectively in Articles 16 and 17 of this Decree and related contracts concerning the implementation of the Project (if any) may be negotiated simultaneously with the negotiation of the Project Contract.

3. After concluding the negotiations, the Project Contract and related contracts concerning the implementation of the Project (if any) shall be signed by the relevant parties.

4. After the Project has been granted the Investment Certificate according to Chapter V of this Decree, the investor and the competent state agency shall proceed to officially sign the Project Contract. If the contents of the Project Contract differ from those of the preliminary-signed Project Contract, the investor must notify the Investment Certificate-granting authority of the amended contents before officially signing.

Chapter IV

PROJECT CONTRACT

Article 16. Contents of the Project Contract

1. The Project Contract specifies the purpose, scope, and content of the Project; the rights and obligations of the parties in designing, constructing, operating, managing the Project works and other Projects (if any).

2. The rights and obligations of the Project Enterprise shall be agreed upon in one of the following ways:

a) The Project Enterprise, after being established, signs the Project Contract to join with the Investor as one party to the Project Contract;

b) The competent state agency, the Investor, and the Project Enterprise sign a document allowing the Project Enterprise to take over and perform the rights and obligations of the Investor as stipulated in the Project Contract. This document is an integral part of the Project Contract.

Article 17. Right to Accept the Project

1. The Parties may agree that the lender may take over part or all of the rights and obligations of the Project Enterprise (hereinafter referred to as the right to accept the Project) in cases where the Project Enterprise or the Investor fails to fulfill their obligations under the Project Contract or loan agreement. After accepting the Project, the lender must fully perform the corresponding obligations of the Project Enterprise or Investor as stipulated in the Project Contract.

2. The conditions, procedures, and contents of the lender's right to accept the Project must be specified in the loan agreement, guarantee document, or other agreement signed between the Project Enterprise or Investor and the lender and must be approved by the competent state agency.

Article 18. Transfer of rights and obligations under the Project Contract

1. The investor may transfer part or all of its rights and obligations under the Project Contract.

2. The transfer of part or all of another Project must comply with the conditions and procedures stipulated by laws on investment, construction, and related legal documents.

3. The transfer as provided for in Clause 1 and Clause 2 of this Article must be approved by the competent state agency and shall not affect the project's objectives, scale, technical standards, implementation schedule, and other agreed conditions in the Project Contract.

Article 19. Amendment and Supplement to the Project Contract

1. The Project Contract may be amended or supplemented due to changes in the project's scale, technical standards of works, agreed total investment capital, force majeure events, or other cases as stipulated in the Project Contract.

2. The Parties agree in the Project Contract the conditions for amending and supplementing the Project Contract.

3. Amending and supplementing the Project Contract must be approved by the agency issuing the Investment Certificate.

Article 20. Duration of the Project Contract

1. The duration of the Project Contract is agreed upon by the Parties in accordance with the field, scale, and nature of the Project and may be extended or shortened according to the conditions stipulated in the Project Contract.

2. For BOT Contracts and BTO Contracts, the Parties must specifically agree on the time points and periods for construction and completion of the works; the time points and periods for operation and transfer of the works (for BOT Contracts) and the time points and periods for transfer and operation (for BTO Contracts).

3. For BT Contracts, the Parties must specifically agree on the time points and periods for construction and transfer of the BT Works. The time points and periods for operation and termination of the Project are agreed upon by the Parties depending on the field, scale, and nature of the Project in compliance with the laws on investment and construction and related legal documents.

Article 21. Termination of the Project Contract

1. The Project Contract terminates its effect upon the expiration of the agreed term or prematurely due to the fault of one of the parties without effective remedial measures, force majeure events, or other cases as stipulated in the Project Contract.

2. The Parties agree in the Project Contract the conditions for terminating the Project Contract and the measures to handle when the Project Contract is terminated prematurely in the cases provided for in Clause 1 of this Article.

Article 22. Application of Foreign Law to Regulate the Relationship of the Project Contract and Related Contracts

1. The competent state agency and foreign investors may agree on the application of foreign law to the following contracts:

a) The Project Contract;

b) Contracts guaranteed by the competent state agency for the performance obligations as stipulated in Article 40 of this Decree.

2. The application of foreign law as provided for in Clause 1 of this Article shall not contravene the provisions of Vietnamese law.

Article 23. Guarantee for Performance of Obligations under the Project Contract

1. The guarantee for performance of obligations under the Project Contract is applied in the form of bank guarantee or other security measures as prescribed by civil law.

2. For Projects with a total investment capital up to 15 trillion VND, the amount of guarantee for performance of obligations under the Project Contract shall not be less than 2% of the total investment capital.

3. For Projects with a total investment capital exceeding 15 trillion VND, the amount of guarantee for performance of obligations under the Project Contract is determined based on the progressive principle as follows:

a) For the portion of investment capital up to 15 trillion VND, the amount of guarantee for performance of obligations under the Project Contract shall not be less than 2% of this portion;

b) For the portion of investment capital exceeding 15 trillion VND, the amount of guarantee for performance of obligations under the Project Contract shall not be less than 1% of this portion;

4. The guarantee for performance of obligations under the Project Contract takes effect from the date the Project Contract is officially signed until the completion of the works.

Chapter V

PROCEDURES FOR ISSUING INVESTMENT CERTIFICATE AND IMPLEMENTATION OF PROJECT

Article 24. Issuing Authority for Investment Certificate

1. The Ministry of Planning and Investment shall issue the Investment Certificate for the following Projects:

a) National key projects;

b) Projects where the Ministry, sector, or authorized agency of the Ministry or sector is the State agency with competent authority to sign the Project Contract;

c) Projects implemented across multiple provinces or centrally governed cities.

2. Provincial People's Committees shall issue the Investment Certificate for Projects not covered by Clause 1 of this Article.

Article 25. Documents, Procedures, and Review Process for Issuing Investment Certificate

1. The investor shall submit ten sets of documents, including at least one original set to the issuing authority specified in Article 24 of this Decree for review and issuance of the Investment Certificate.

2. The application documents for the Investment Certificate include:

a) A request for issuance of the Investment Certificate;

b) The signed Project Contract and related contracts concerning the implementation of the Project (if applicable);

c) Feasibility study report;

d) Joint venture contract and the Charter of the Project Enterprise (if applicable).

3. The review content includes:

a) Rights and obligations of the parties under the Project Contract;

b) Project implementation schedule;

c) Land usage requirements;

d) Environmental solutions;

đ) Investor recommendations on investment incentives and government guarantees (if applicable).

4. The issuing authority shall complete the review and issue the Investment Certificate within forty-five working days from the date of receipt of valid documents.

Article 26. Content of the Investment Certificate

1. The Investment Certificate shall contain the following main contents:

a) Name and address of the Investor and the Project Enterprise;

b) Project name;

c) Objectives and scale of the Project;

d) Project implementation location and land area used;

đ) Total investment capital of the Project;

e) Project implementation time frame and progress; funding mobilization progress according to the Project Contract;

g) Investment incentives and support (if applicable).

2. For BT Projects, in addition to the contents prescribed for BT construction projects in Clause 1 of this Article, the Investment Certificate must specify payment conditions or other project implementation conditions as stipulated in the Project Contract.

Article 27. Business Registration, Establishment, and Management Organization of the Project Enterprise

1. The investor shall register business to establish the Project Enterprise or supplement the business scope in the Business Registration Certificate (for investors who have established economic organizations). The documents, procedures, and process for business registration or supplementary business registration shall comply with the provisions of the Enterprise Law.

2. The Investment Certificate issued to foreign investors shall simultaneously serve as the Business Registration Certificate of the Project Enterprise.

3. The organizational structure, powers, and responsibilities of the Project Enterprise shall be determined by the investor in accordance with the provisions of the Project Contract, the Enterprise Law, the Investment Law, and relevant legal documents.

Article 28. Conditions for Project Implementation

1. The Project shall commence after the investor has been issued the Investment Certificate and in accordance with other agreed conditions in the Project Contract.

2. Other Projects shall commence in accordance with the agreed time frame and progress in the Project Contract, consistent with the laws on investment and construction.

Article 29. Selection of Contractors for Project Implementation

1. The project enterprise shall be responsible for selecting consulting contractors, purchasing goods, construction works, and other contractors to implement the Project. The selection of contractors within the scope regulated by the Bidding Law must be carried out in accordance with the provisions of the law on bidding.

2. The results of the contractor selection must be reported to the competent state agency within fifteen working days from the date of the decision on contractor selection.

Article 30. Preparation of Construction Site

1. The provincial People's Committee shall be responsible for land clearance and completing the procedures for transferring land or leasing land to implement the Project in accordance with the provisions of the law and the conditions for land use stipulated in the Project Contract.

2. The costs of compensation, land clearance, and resettlement shall be paid by the project enterprise and included in the total investment capital of the Project, except where state budget funds are used to support compensation and land clearance as provided for in Clause 2, Article 6 of this Decree.

Article 31. Technical Design Preparation, Supervision, and Construction Management of the Project Works

1. Based on the Feasibility Study Report and the Project Contract, the project enterprise shall prepare the Technical Design and submit it to the competent state agency for supervision and inspection. In case the Technical Design differs from the Feasibility Study Report, the project enterprise must present it to the competent state agency for review and decision.

2. The project enterprise shall manage and supervise the construction work itself or hire an independent consulting organization to manage and supervise the construction work, inspect individual items, and the entire project according to the agreed design in compliance with the laws on construction and the terms of the Project Contract.

3. The competent state agency shall be responsible for supervising and evaluating the compliance of the investor and the project enterprise with the requirements regarding planning, objectives, scale, technical standards, quality of the works, capital mobilization schedule, and implementation of the Project, environmental protection, and other issues as agreed upon in the Project Contract.

4. Adjustments to the total investment capital, technical design, and other agreed conditions in the Project Contract may only be considered in the following cases:

a) The project is affected by natural disasters or other force majeure events;

b) The appearance of factors that bring higher efficiency to the Project;

c) When the planning changes directly affect the location, scale, nature, and objectives of the Project;

d) Other cases as prescribed by the Government.

Article 32. Management and Operation of the Works

1. The project enterprise shall carry out management and operation of the works or operate another Project (for BT Projects) in accordance with the provisions of the law and the conditions agreed upon in the Project Contract.

2. The project enterprise may hire a management organization to perform the tasks set forth in Clause 1 of this Article, provided that the project enterprise bears full responsibility for the management organization.

3. During the operation of the works, the BOT Enterprise and the BTO Enterprise shall have the obligations:

a) To treat all legitimate users of products and services provided by the project enterprise equally; not to use the right to operate the works to discriminate against or refuse service to any user;

b) To perform regular maintenance and repair of the works in accordance with the Project Contract, ensuring that the works operate as designed;

c) To supply products and services in the quantity and quality agreed upon in the Project Contract during the operating period until the works are transferred (for BOT Projects);

d) To ensure the use of the works in accordance with the conditions stipulated in the Project Contract.

4. The BT Enterprise shall implement another Project in accordance with the conditions agreed upon in the Project Contract, in compliance with the Investment Certificate, laws on investment and construction, and related legal documents.

Article 33. Prices, Fees for Goods and Services and Revenue Items

1. The prices and fees for goods and services provided by the Project Enterprise shall be stipulated in the Project Contract on the principle of covering costs adequately, taking into account market price correlations, ensuring the interests of the Project Enterprise, users, and the State.

2. Conditions for adjusting prices, fees for goods and services, and revenue items must be specified in the Project Contract.

3. When adjusting prices, fees for goods and services, and other revenue items (if any), the Project Enterprise must notify the competent state agency at least thirty working days in advance. Adjustments to prices, fees for goods and services, and other revenue items managed by the State must be approved by the competent state agency.

Article 34. Support for Service Fee Collection

The Project Enterprise shall be provided with all favorable conditions to collect the correct and full prices and service fees, and other lawful revenues from the exploitation of the works. In necessary cases, the Project Enterprise may request the competent state agency to support the collection of service fees or other revenues from the operation of the works.

Chapter VI

TRANSFER OF PROJECT WORKS

Article 35. General Provisions on Transfer of Project Works

1. For BOT Works, after the expiration of the period of operating the works as prescribed in Clause 2, Article 20 of this Decree, the Investor shall transfer the BOT Works无偿地移交给有权的国家机关。

2. For BTO Works, after the completion of the works as prescribed in Clause 2, Article 20 of this Decree, the Investor shall transfer the works无偿地移交给有权的国家机关，并被允许继续按照项目合同中约定的条件经营该工程。

3. For BT Works, after the completion of the works as prescribed in Clause 3, Article 20 of this Decree, the Investor shall transfer the Project Works to the competent state agency according to the conditions stipulated in the Project Contract.

Article 36. Final Settlement and Transfer of BOT Works

1. Within six months from the date of completion of the Project Works as agreed upon in the Project Contract, the Investor must prepare a final settlement report on the value of the construction investment capital in accordance with the provisions of the Construction Law.

2. The competent state agency shall agree with the Investor on the selection of an independent auditing organization with capability and experience to conduct the audit of the value of the construction investment capital of the Project Works.

3. The transfer of the Works shall be carried out according to the following procedures and conditions:

a) One year before the transfer date or within the agreed period in the Project Contract, the Investor or the Project Enterprise must publicly announce the transfer of the works and related issues concerning the procedures, deadlines for contract termination, and payment of debts.

b) The competent state agency shall organize the inspection of the quality, value, and condition of the works as stipulated in the Project Contract, compile a list of assets to be transferred, determine any damages (if any), and require the Project Enterprise to carry out repairs and maintenance of the works.

e) The Investor and the Project Enterprise must ensure that the assets to be transferred have not been used as collateral for financial obligations or pledged or mortgaged to secure other obligations of the Investor or the Project Enterprise arising prior to the transfer date, except where otherwise provided in the Project Contract.

d) The Project Enterprise is responsible for transferring technology, training, and performing regular maintenance and major overhauls to ensure the technical conditions for normal operation of the works in accordance with the requirements of the Project Contract.

f) After accepting the Project Works, the competent state agency shall organize the management and operation of the Works according to its functions and authority.

Article 37. Transfer of BT Works and BTO Works

1. The transfer of BT Works shall be carried out in accordance with the conditions and procedures stipulated in Article 36 of this Decree.

2. In addition to the provisions of Clause 2, Article 35 and Points b and c, Clause 3, Article 36, the transfer of BTO Works shall be implemented according to the agreement in the Project Contract.

3. The Ministry of Finance shall provide guidance on the implementation of regulations regarding the final settlement value of project works as prescribed in Article 36 and this Article.

Chapter VII

INVESTMENT INCENTIVES AND GUARANTEES FOR INVESTORS AND PROJECT ENTERPRISES

Article 38. Investment incentives and support

1. BOT Enterprises and BTO Enterprises shall enjoy tax incentives for corporate income tax in accordance with the Corporate Income Tax Law.

2. Goods imported for the implementation of the BOT Enterprise's and BTO Enterprise's Projects and those of contractors specified in Article 29 of this Decree shall benefit from incentives under the Export Duties Law and Import Duties Law.

3. BOT Enterprises and BTO Enterprises shall be exempted from land use fees for the area allocated by the State or from land rental fees throughout the duration of the Project.

4. Investment incentives for BT Enterprises are defined as follows:

a) BT Enterprises and contractors as stipulated in Article 29 of this Decree shall enjoy import tax incentives for goods imported for the construction of BT Works in accordance with the Export Duties Law and Import Duties Law.

Import duties on goods imported for other projects shall be applied in accordance with the Export Duties Law and Import Duties Law.

b) BT Enterprises shall be exempted from land rental fees and land use fees for the area used for constructing BT Works during the construction period.

c) Corporate income tax on other projects shall be applied depending on the sector and investment location in compliance with the Investment Law and Corporate Income Tax Law.

Article 39. Taxes for Contractors Participating in the Project

1. Foreign contractors (if any) participating in the Project shall pay various taxes and enjoy exemptions and reductions in taxes in accordance with the Tax Law applicable to foreign contractors.

2. Vietnamese contractors shall fulfill their tax obligations in accordance with the Tax Law applicable to Vietnamese enterprises.

Article 40. Guaranteeing Obligations of Investors, Project Enterprises, and Other Enterprises

In necessary cases and depending on the nature of the Project, the Government may designate competent authorities to guarantee loans, supply raw materials, purchase products, and other contractual obligations for Investors, Project Enterprises, or other enterprises participating in the Project, and to guarantee the obligations of state-owned enterprises selling raw materials, purchasing products, and services from Project Enterprises.

Article 41. Right to Mortgage Assets

1. Project Enterprises shall have the right to pledge and mortgage assets and land use rights in accordance with the law.

2. The pledging and mortgaging of assets by Project Enterprises must be approved by the competent state authority and shall not affect the objectives, progress, and operations of the Project as stipulated in the Project Contract and in compliance with the law.

Article 42. Right to Purchase Foreign Currency

1. During the construction and operation of projects, the Investor or Project Enterprise may purchase foreign currency from credit institutions authorized to operate in foreign exchange transactions to meet current transactions, capital transactions, and other transactions as prescribed by laws on foreign exchange management, including:

a) Payment for leasing equipment and machinery from abroad;

b) Import of machinery, equipment, and other products and services for the implementation of the Project;

c) Repayment of foreign debts (including principal and interest);

d) Repayment of debts (including principal and interest) borrowed from banks in foreign currency for the import of machinery, equipment, and other products and services for the implementation of the Project;

đ) Transfer of capital, profits, proceeds from liquidation of investment, payments for technical assistance, services, intellectual property rights, and other lawful income to foreign countries (applicable to foreign Investors).

2. The Government ensures balance or supports balance of foreign currency for certain important Projects in the energy sector, transportation infrastructure construction, and waste treatment.

Article 43. Ensuring Provision of Public Services

1. The Project Enterprise may use land, roads, and other auxiliary facilities to implement the Project in accordance with the provisions of the law.

2. In cases where there is a shortage of public services or restrictions on the use of public facilities, the Project Enterprise shall be given priority in providing such services or obtaining the right to use public facilities to implement the Project.

3. The competent state agency shall be responsible for assisting the Project Enterprise in completing necessary procedures to obtain priority in using public services and facilities.

Article 44. Dispute Resolution

1. Disputes between the Competent State Agency and the Investor or Project Enterprise, and disputes between the Project Enterprise and economic organizations participating in the Project shall first be resolved through negotiation and mediation. If resolution cannot be achieved through negotiation and mediation, the parties may refer the dispute to arbitration or the Vietnamese court in accordance with Vietnamese law, except for the cases stipulated in Clause 2 and Clause 3 of this Article.

2. Disputes between the Competent State Agency and foreign Investors or Project Enterprises during the implementation of the Project Contract and surety contracts as prescribed in Article 40 of this Decree shall be resolved through arbitration or the Vietnamese court or an Arbitration Tribunal agreed upon by the Parties.

3. Disputes between the Project Enterprise and foreign organizations or individuals or Vietnamese economic organizations, and disputes among Investors shall be resolved in accordance with the Investment Law.

Article 45. Guarantees for Capital and Assets

1. The Investor's investment capital and lawful assets shall not be nationalized or confiscated by administrative measures.

2. In cases where it is necessary to requisition or expropriate the Investor's assets, the State shall ensure payment or compensation for the Investor's assets and capital in accordance with the Investment Law or the conditions agreed upon in the Project Contract.

Chapter VIII

STATE MANAGEMENT OF INVESTMENT PROJECTS UNDER BOT CONTRACTS,

 BTO CONTRACTS AND BT CONTRACTS

Article 46. Tasks and Authorities of the Ministry of Planning and Investment

1. Lead in drafting and promulgating normative legal documents on investment under the BOT Contract, BTO Contract, and BT Contract forms either within its authority or submitting to the Government for promulgation.

2. Guide the implementation of regulations concerning the preparation and approval of Project Proposals and Feasibility Study Reports; selection of Investors and organization of project contract negotiations; contents of project contracts; procedures, formalities for issuance, adjustment, and recovery of Investment Certificates, and other related matters within the authority defined in this Decree.

3. Participate in providing opinions on the development of plans and project lists of relevant ministries, sectors, and provincial People's Committees.

4. Lead and coordinate with relevant ministries and sectors to submit to the Prime Minister for consideration and decision on the implementation of projects not falling within the scope or contract forms specified in this Decree.

5. Participate in providing opinions on the selection of Investors for project contract negotiations and dispatch representatives to join inter-sectoral working groups at the request of relevant ministries, sectors, and provincial People's Committees in specific cases.

6. Review, issue, adjust, and recover Investment Certificates for projects within the authority stipulated in Clause 1, Article 24 of this Decree.

7. Participate in reviewing projects for issues within their functions and authorities upon the request of relevant ministries, sectors, and provincial People's Committees.

8. Lead and coordinate with relevant ministries, sectors, and provincial People's Committees to guide, inspect, and audit activities of projects within their authority; compile and evaluate the implementation situation of investment projects under the BOT, BTO, and BT contract forms.

9. Perform other tasks and exercise other powers as prescribed by law.

Article 47. Tasks and Authorities of the Ministry of Finance

1. Perform the tasks and authorities stated in Clauses 3, 5, and 7 of Article 46 of this Decree.

2. Guide the implementation of regulations concerning project preparation costs and the use of operating funds of competent state agencies during project management; financial indicators of project contracts; conditions and methods of payment to Investors implementing BT projects; and other related matters within the authority defined in this Decree.

3. Coordinate with the Ministry of Planning and Investment to perform the tasks stated in Clause 8 of Article 46 of this Decree.

4. Performing other tasks and powers as prescribed by law.

Article 48. Tasks and Authorities of the Ministry of Justice

1. Participate in negotiating issues related to applicable laws, dispute resolution, government guarantees, and other legal aspects of project contracts at the request of competent state agencies in specific cases.

2. Review and provide opinions on discrepancies between provisions of project contracts and domestic laws.

3. Lead negotiations and provide legal opinions on the contents of project contracts in specific cases.

4. Performing other tasks and powers as prescribed by law.

Article 49. Tasks and Authorities of Other Ministries and Sectors

1. Perform the tasks and authorities stated in Clauses 3, 5, and 7 of Article 46 of this Decree.

2. Develop and publish project lists of ministries and sectors as prescribed in this Decree.

3. Participate in providing opinions on planning and policies for implementing projects within their areas of management.

4. Accept projects outside the published project list and prepare feasibility study reports or project proposals as prescribed in Articles 11 and 12 of this Decree.

5. Directly or authorize subordinate agencies to be competent state agencies to conclude and implement project contracts as prescribed in Article 3 of this Decree.

6. Approve bidding plans and results for selecting Investors for project contract negotiations within their authority.

7. Coordinate with the Ministry of Planning and Investment to perform the tasks stated in Clause 8 of Article 46 of this Decree.

8. Perform other tasks and exercise other powers as prescribed by law.

Article 50. Tasks and Authorities of the People's Committee of the Province

1. Implement the tasks and authorities specified in Clauses 3, 5, and 7 of Article 46 of this Decree.

2. Develop and publish the List of projects of the locality in accordance with the provisions of this Decree.

3. Participate in providing opinions on planning and policies for implementing projects within their areas of management.

4. Accept Projects outside the published List of projects and prepare Feasibility Study Reports or Project Proposals in accordance with the relevant provisions of Articles 11 and 12 of this Decree.

5. Directly or authorize subordinate agencies which are competent State agencies to conclude Project Contracts in accordance with the provisions of Article 3 of this Decree.

6. Examine, issue, adjust, and revoke Investment Certificates for Projects within the authority stipulated in Clause 2 of Article 24 of this Decree.

7. Approve plans and results of bidding to select Investors to negotiate Project Contracts within its authority.

8. Coordinate with the Ministry of Planning and Investment to implement the tasks specified in Clause 8 of Article 46 of this Decree.

9. Perform other tasks and exercise other powers as prescribed by law.

Chapter IX

IMPLEMENTING PROVISIONS

Article 51. Effective Date

This Decree takes effect from January 15, 2010, and replaces Government Decree No. 78/2007/NĐ-CP dated May 11, 2007, on investment under BOT Contract, BTO Contract, and BT Contract forms.

Article 52. Transitional Provisions

1. Investors implementing Projects that have been issued Investment Certificates before the effective date of this Decree shall continue to implement in accordance with the provisions of the Project Contract and the Investment Certificate.

2. Projects that have had decisions selecting Investors before the effective date of this Decree do not need to comply with the bidding procedures to select Investors as prescribed in Article 13 of this Decree.

3. Except where approved by the Prime Minister, investors who have concluded Project Contracts before the effective date of this Decree and have not yet been issued Investment Certificates must amend the Project Contracts and complete the procedures for issuing Investment Certificates in compliance with the provisions of this Decree.

Article 53. Implementation Organization

1. The Ministry of Planning and Investment shall take the lead and coordinate with relevant ministries and sectors to guide the implementation of this Decree.

2. Ministers, heads of ministerial-level agencies, heads of agencies under the Government, and Chairpersons of provincial People's Committees directly under the Central Government shall be responsible for implementing this Decree within their respective functions and powers./.