Circular No. 15/2016/TT-BKHĐT guiding the preparation of prequalification documents and tender documents to select investors for implementing investment projects under the public-private partnership (PPP) model

CIRCULAR

Guidelines for preparing tender invitation documents and prequalification documents to select investors for public-private partnership projects

lựa chọn nhà đầu tư thực hiện dự án đầu tư theo hình thức đối tác công tư ||| selecting the investor to implement the project under the public-private partnership form 

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

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

Pursuant to Decree No. 30/2015/NĐ-CP dated March 17, 2015 of the Government detailing the implementation of certain provisions of the Bidding Law regarding the selection of investors;

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;

At the request of the Director of the Bidding Management Department, the Minister of Planning and Investment issues this Circular guiding the preparation of tender invitation documents and prequalification documents to select investors for public-private partnership projects.

Article 1. Scope of Regulation

This Circular guides the preparation of tender invitation documents and prequalification documents for public-private partnership (PPP) projects within the scope regulated by Clause 3, Article 1 of the Law on Bidding No. 43/2013/QH13 as follows:

1. Model of prequalification document for selecting investors for PPP projects (Model No. 01) applies to national-level important PPP projects, Group A and Group B projects.

2. Model of tender invitation document for selecting investors for PPP projects (Model No. 02) applies to national-level important PPP projects, Group A and Group B projects that have completed prequalification.

Article 2. Applicability

This Circular applies to agencies, organizations, and individuals participating in or related to the activity of selecting investors for PPP projects within the scope regulated by this Circular.

Article 3. Application of prequalification and tender invitation document models for selecting investors for PPP projects

1. Based on the scale, nature, and field of each specific project, the competent authority or the tenderer may supplement appropriate requirements while ensuring principles of competition, fairness, transparency, and economic efficiency during the preparation, review, and approval of prequalification and tender invitation documents; ensuring compliance with laws on bidding; not applying conditions that limit investor participation or create advantages for one or some investors leading to unfair competition.

2. For projects not subject to prequalification as stipulated in Clause 2, Article 87 of Decree No. 30/2015/NĐ-CP dated March 17, 2015, the tender invitation document shall be prepared based on Model No. 02, supplemented with contents regarding the capacity and experience of investors as specified in Model No. 01.

3. For Group C projects, the tender invitation document shall be prepared based on Model No. 02, supplemented with contents regarding the capacity and experience of investors as specified in Model No. 01. In cases where the competent authority decides to apply prequalification, the prequalification and tender invitation documents shall be prepared based on Model No. 01 and Model No. 02.

4. For projects applying the selective tendering method as stipulated at point a, Clause 3, Article 9 of Decree No. 30/2015/NĐ-CP, the request document shall be prepared based on Model No. 02.

5. For projects applying the selective tendering method as stipulated at points b and c, Clause 3, Article 9 of Decree No. 30/2015/NĐ-CP, the request document shall be prepared based on Model No. 02, supplemented with contents regarding the capacity and experience of investors as specified in Model No. 01.

6. In these Models, the texts italicized are illustrative contents and will be detailed based on the scale, nature, and field of each specific project.

Article 4. Contract

Based on general guidelines on the content of project contracts under the law on PPP investment, taking into account the nature, scale, and field of each specific project, the competent authority or the tenderer shall draft the contract and attach it to the tender invitation document. The draft contract specifies the terms of the contract to serve as a basis for preliminary negotiations, negotiations, finalization, signing of investment agreements, signing and implementation of the contract, ensuring clear division of responsibilities, risks, rights, and legitimate interests of the parties according to current laws.

State-owned enterprises that have been assigned by the Ministry of Agriculture and Rural Development to conduct offshore wind power project surveys before the effective date of this Circular shall continue to implement according to the assigned documents; any new matters arising after the effective date of this Circular shall be implemented in accordance with the provisions of this Circular.

1. This Circular takes effect from November 15, 2016. This Circular replaces the provisions on selecting investors in Circular No. 03/2011/TT-BKHĐT dated January 27, 2011 of the Ministry of Planning and Investment guiding the implementation of certain provisions of Decree No. 108/2009/NĐ-CP dated November 27, 2009 of the Government on BOT, BTO, and BT investment forms.

2. During implementation, if there is a need to issue detailed guidance based on the characteristics and fields, relevant ministries and sectors shall coordinate with the Ministry of Planning and Investment to promptly consider and provide guidance.

3. Ministries, ministerial-level agencies, central-level agencies, central-level organizations, People's Committees at all levels, and related organizations and individuals are responsible for implementing this Circular. Any difficulties encountered during implementation should be reported to the Ministry of Planning and Investment for timely guidance./.