Circular No. 50/2018/TT-BGTVT provides detailed regulations on the functions, tasks, and responsibilities of State agencies authorized to sign and implement public-private partnership (PPP) project contracts under the management of the Ministry of Transport.

CIRCULAR

Regulations on the organization to perform functions and tasks of the State agency authorized to conclude and implement contracts for public-private partnership investment projects under the management of the Ministry of Transport

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

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

Article 1. This Circular guides certain contents in the feasibility study report, the detailed feasibility study report for public-private partnership investment projects, build-operate-transfer contracts (BOT contracts) in the transport sector, including: economic and social efficiency indicators; framework of return on equity of investors; quality assessment index of works and infrastructure systems provided by project enterprises; depreciation period of works and infrastructure systems.

The Minister of Transport issues this Circular qRegulations on the organization to perform functions and tasks of the State agency authorized to conclude and implement contracts for public-private partnership investment projects under the management of the Ministry of Transport,

PART I

GENERAL PROVISIONS

Article 1. Scope of Regulation

This Circular stipulates the organization to perform functions and tasks of the State agency authorized to conclude and implement contracts for projects (hereinafter referred to as the authorized State agency) for public-private partnership investment projects under the management of the Ministry of Transport.

Article 2. Applicability

This Circular applies to agencies and units entrusted or assigned to carry out certain activities of the authorized State agency and agencies, organizations, and individuals related to the implementation of public-private partnership investment projects under the management of the Ministry of Transport.

Article 3. Explanation of Terms

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

1.  Specialized Management Department includes the Vietnam Highway Administration, the Vietnam Railway Administration, the Vietnam Maritime Administration, the Vietnam Civil Aviation Administration, the Vietnam Inland Waterway Administration;

2.  Project Management Board is the Project Management Board established by the Minister of Transport.

Article 4. The State agency authorized to conclude and implement project contracts

1.  The Ministry of Transport is the State agency authorized to conclude and implement contracts for public-private partnership investment projects, including:

a) National key projects (when assigned by the Prime Minister);

b) Group A projects;

c) Group B and C projects involving two or more specialized management departments or not within the scope of management of specialized management departments; other complex projects according to specific decisions of the Ministry of Transport.

2.  The Ministry of Transport delegates to the specialized management department as the State agency authorized for public-private partnership investment projects of Groups B and C, except for projects specified in point c, Clause 1 of this Article. The scope, content of delegation, and responsibilities of the delegated agency shall be carried out in accordance with this Circular.

Chapter II

STAGE PROJECT PREPARATION

Article 5. Selection of consultants to prepare the Preliminary Feasibility Study Reportfor projects prepared by the authorized State agency

1.  The Project Management Board performs the tasks of the Investor and Tenderer in accordance with the law for projects specified in Clause 1, Article 4 of this Circular, including organizing the preparation, review, approval of the mission and budget for survey work, preparation of the Preliminary Feasibility Study Report (including any supplements or adjustments); preparation, review, approval of the tender plan; preparation, review, approval of the tender request or tender invitation; organizing the selection of contractors; evaluation of tender documents or proposal submissions; contract negotiations; review, approval, and publicizing the results of contractor selection; completion and signing of the contract; other tasks of the Investor and Tenderer as prescribed by law.

2.  The specialized management department organizes the performance of the tasks of the Investor and Tenderer in accordance with the law for projects specified in Clause 2, Article 4 of this Circular.

Article 6. Preparation, review, and approval of the feasibility study reportfor projects prepared by the authorized State agency

1. For national key projects and projects within the decision-making authority of the Prime Minister

The project management board shall organize the preparation of the feasibility study report to submit to the Ministry of Transport for submission to the competent authority to decide on investment orientation.

2. For projects within the decision-making authority of the Minister of Transport

The project management board shall organize the preparation of the feasibility study report for projects under Clause 1 of Article 4 of this Circular; the specialized management agency shall organize the preparation of the feasibility study report for projects under Clause 2 of Article 4 of this Circular; these reports shall be submitted to the Ministry of Transport for review and approval.

Article 7. Announcement of Projects

1. Within four working days from the date of approval of the investment orientation or the feasibility study report for Group C projects, the Public-Private Partnership Department shall take the lead in drafting and issuing the decision to announce the project.

2. Within three working days from the date of approval of the announcement of the project, the project management board shall take the lead in announcing the project and the list of projects on the National Bidding Network System and the Ministry of Transport's electronic portal for projects under Clause 1 of Article 4 of this Circular; the specialized management agency shall take the lead in announcing the project and the list of projects on the National Bidding Network System and the Ministry of Transport's electronic portal for projects under Clause 2 of Article 4 of this Circular.

Article 8. Projects Proposed by Investors

1. Investors shall submit project proposal documents or feasibility study reports for Group C projects to the project management board for projects under Clause 1 of Article 4 of this Circular; submit them to the specialized management agency for projects under Clause 2 of Article 4 of this Circular. The project management board and the specialized management agency shall examine and review the project proposal documents or feasibility study reports for Group C projects before submitting them to the Ministry of Transport.

2. In cases where two or more investors jointly submit project proposal documents.

a. The project management board shall be responsible for organizing the evaluation and selection of project proposals according to regulations for projects under Clause 1 of Article 4 of this Circular, and submit them to the Ministry of Transport;

b. The specialized management agency shall be responsible for organizing the evaluation and selection of project proposals according to regulations for projects under Clause 2 of Article 4 of this Circular, and submit them to the Ministry of Transport;

c. The organization of the evaluation and selection of project proposals shall be carried out in accordance with the provisions of the law.

3. The review and approval of the feasibility study report for the preliminary stage of the project shall be implemented in accordance with Article 6 of this Circular.

4. The review and approval of the feasibility study report for Group C projects shall be implemented in accordance with Clause 2 of Article 10 of this Circular.

5. In cases where the project proposed by the investor is approved for investment orientation or the feasibility study report for Group C projects is approved, the announcement of the project proposed by the investor shall be implemented in accordance with the provisions of Article 7 of this Circular.

Article 9. Selection of Consultants for Feasibility Study Reports

1. Projects established by State authorities with competent authority

a. The project management board shall perform the duties of the Project Owner and Tenderer in accordance with the law for projects under Clause 1 of Article 4 of this Circular, including organizing the preparation, review, and approval of tasks and budgets for survey work, preparing the feasibility study report (including any supplements or adjustments if necessary); preparing, reviewing, and approving tender plans; preparing, reviewing, and approving tender documents or tender invitations; organizing the selection of contractors; evaluating tender documents or proposal documents; negotiating contracts; reviewing, approving, and publicly announcing the results of contractor selection; completing and signing contracts; other tasks of the Project Owner and Tenderer as prescribed by law;

b. The specialized management agency shall perform the duties of the Project Owner and Tenderer in accordance with the law for projects under Clause 2 of Article 4 of this Circular.

2. Projects Proposed by Investors

Investors shall organize the selection of consultants in accordance with the law.

Article 10. Preparation, Review, and Approval of the Feasibility Study Report

1.   Preparation and Submission of the Feasibility Study Report

a)   The project management board shall organize the preparation and submission to the Ministry of Transport of the feasibility study report for projects under Clause 1, Article 4 of this Circular;

b)   The specialized management agency shall organize the preparation and submission to the Ministry of Transport of the feasibility study report for projects under Clause 2, Article 4 of this Circular;

c)   The investor shall organize the preparation of the feasibility study report for the project approved under Clause 5, Article 8 of this Circular. The investor shall submit the feasibility study report to the Ministry of Transport (through the project management board) for projects under Clause 1, Article 4 of this Circular, and submit it to the specialized management agency for projects under Clause 2, Article 4 of this Circular. The project management board and the specialized management agency shall be responsible for reviewing and submitting to the Ministry of Transport.

2.   Review and Approval of the Feasibility Study Report

The Ministry of Transport shall organize the review of the feasibility study report and approve it or submit it to the competent authority for approval in accordance with the laws on investment and construction.

Article 11. Amendment of the Feasibility Study Report

1.   The project management board shall organize the preparation and submission to the Ministry of Transport of amendments to the feasibility study report for projects under Clause 1, Article 4 of this Circular;

2.   The specialized management agency shall organize the preparation and submission to the Ministry of Transport of amendments to the feasibility study report for projects under Clause 2, Article 4 of this Circular;

3.   In cases where the investor or project enterprise prepares the report: The project management board for projects under Clause 1, Article 4 of this Circular, and the specialized management agency for projects under Clause 2, Article 4 of this Circular shall be responsible for reviewing and submitting to the Ministry of Transport.

Chapter III

SELECTION OF INVESTOR AND SIGNING OF PROJECT CONTRACT

Article 12. For Projects Where the Ministry of Transport is the Competent State Agency1.   Selection of Investor

a)   The Minister of Transport shall perform the duties of the Authorized Person in accordance with the laws on bidding;

b)   The project management board shall act as the Tender Inviter, organizing the selection of investors, including preparing and submitting tender prequalification documents; conducting prequalification, evaluating prequalification bids, submitting prequalification results and publishing shortlisted candidates; preparing and submitting tender plans; preparing and submitting tender documents or tender invitations, organizing the selection of investors, evaluating tender bids or proposals, submitting investor selection results (technical proposals, financial proposals, preliminary contract negotiations), and publishing investor selection results; other tasks of the Tender Inviter as prescribed by law.

2.   Negotiation and Signing of Project Contracts

a)   Submitting draft project contracts, negotiation plans, and contract contents to the Ministry of Transport for contract negotiations; the Ministry of Transport shall organize the negotiation of project contracts;

b)   The project management board shall finalize the contract after negotiations and submit the project contract to the Ministry of Transport for signing with the investor or project enterprise.

3.   Public Disclosure of Project Contract Information

Within seven working days from the date of signing the project contract, the project management board shall publicly disclose the contract information on the national bidding system and the Ministry of Transport's electronic portal in accordance with Article 41 of Decree No. 63/2018/NĐ-CP.

Within seven working days from the date of signing the project contract, the Project Management Board shall publicly announce the contract information on the national bidding system network and the Ministry of Transport's electronic portal in accordance with Article 41 of Decree No. 63/2018/NĐ-CP.

Article 13. For projects managed by the specialized management agency as the competent state authorityThe specialized management agency shall perform all tasks of the competent state authority and the authorized person as prescribed by laws on bidding for projects under Clause 2, Article 4 of this Circular.

a)   The Minister of Transport shall perform the duties of the Authorized Person in accordance with the laws on bidding;

The specialized management agency shall carry out the functions and responsibilities of the competent state authority as prescribed by laws, this Circular, and other relevant regulations.

2. Project Contract

Within seven working days from the date of signing the project contract, the specialized management agency shall publicly disclose information about the contract on the national e-bidding system and the Ministry of Transport's electronic portal in accordance with Article 41 of Decree No. 63/2018/NĐ-CP.

Within seven working days from the date of signing the project contract, the project management board shall publicly disclose the contract information on the national bidding system and the Ministry of Transport's electronic portal in accordance with Article 41 of Decree No. 63/2018/NĐ-CP.

STAGE OF IMPLEMENTING THE PROJECT

Chapter IV

Article 14. Tasks of the Project Management Board for projects

1. Selection of contractors to participate in implementing the project1.   Selection of Investor

Implement tasks as prescribed by laws and the project contract.

2. Regarding design review and approval work after basic design and construction cost estimate

a) Based on the provisions of construction laws, the project contract, conduct checks and reviews of the outline of tasks and cost estimates for consultancy packages, submit to the specialized construction management agency to organize the review process;

b) Conduct checks and reviews, and submit to the specialized construction management agency to organize the review and adjustment of technical design documents in three-step design cases, construction drawings in two-step design cases, and construction cost estimates according to Article 82 of the Construction Law 2014; Clause 2, Article 25 of Decree No. 59/2015/NĐ-CP; Clause 10, Article 1 of Decree No. 42/2017/NĐ-CP; Articles 10 and 11 of Decree No. 32/2015/NĐ-CP, and other relevant regulations; accept, review project design and construction cost estimates approved by the project enterprise, promptly report to the Ministry of Transport for handling in case of discrepancies with the results of the specialized construction management agency's review;

c) In cases where tendering is organized to select investors after approving the technical design and construction cost estimate as stipulated in Clause 4, Article 9 of Decree No. 63/2018/NĐ-CP, organize the preparation of the outline of tasks, technical design documents, and construction cost estimates for submission to the Ministry of Transport for review and approval before selecting investors.

3. Regarding land clearance work

a) Coordinate with the Investor, Project Enterprise, Project Owner, and related agencies in land clearance and resettlement work as stipulated in the project contract;

b) Check the implementation of compensation, support, and resettlement, report to the Ministry of Transport to resolve issues promptly according to Clause 1, Article 33 of Decree No. 47/2014/NĐ-CP;

c) Monitor and urge the Investor, Project Enterprise, and Project Owner to fulfill their responsibilities for managing, settling, and finalizing land clearance funds according to regulations;

d) Directly work and urge localities to complete land clearance settlement work, check and review the value of land clearance settlements to submit to the Ministry of Transport for consolidation into the overall settlement value of the investment construction project.

4. Regarding management and supervision of the implementation of the project contract

a) Review and examine supplementary and amendment annexes to the project contract (if any) and the final settlement value of completed construction costs, submit to the Ministry of Transport for agreement or approval according to the project contract;

b) Monitor the implementation of the project contract by the investor and project enterprise during the investment implementation phase and warranty period; coordinate with advisory agencies to the Minister to perform the Ministry of Transport's functions and responsibilities during the investment implementation phase (including final settlement of completed construction costs) according to the project contract, Decree No. 63/2018/NĐ-CP, and other relevant regulations;

c) Supervise compliance with obligations of the Investor and Project Enterprise as stipulated in the project contract. If the Investor or Project Enterprise violates the project contract, promptly report to the Ministry of Transport for handling according to regulations;

d) Check the legality and management of performance guarantees provided by the Investor in accordance with legal provisions; monitor the duration of performance guarantees to ensure they align with the project implementation schedule.

5. Regarding project capital management

a) Develop annual capital plans (state budget and other lawful sources) for the project to report to the Ministry of Transport. Monitor and periodically report on the progress of capital mobilization and disbursement according to regulations;

b) State capital participating in the project: Receive state capital participating in the project and implement allocation and payment according to laws and the project contract; urge and guide the Investor and Project Enterprise to repay investment preparation support costs and preservation costs of support capital (if any) to create investment preparation capital for other projects according to the project contract;

c) Capital raised by the Investor: Check the progress of capital raising (equity, loans) in accordance with the schedule specified in the project contract. When the Investor or Project Enterprise violates laws and the project contract, the Project Management Board proposes and reports to the Ministry of Transport for handling according to laws and the project contract; check and review the disbursement value, disbursement progress, VAT refund value of the project according to the project contract; check and provide opinions on interest rates, loan interest payable, investor profit, and other financial parameters (if any) during project implementation to ensure compliance with the project contract and legal provisions.

6. Regarding construction quality management

a) Inspect the construction process and quality of works according to the project contract and relevant laws.

a) Inspect the construction process and the quality of the works in accordance with the provisions of the project contract and relevant laws.

b) Inspect compliance with management operation procedures, standards, technical regulations for construction works as stipulated in the project contract;

c) Inspect the quality certification work of construction components, sub-projects, and the entire construction project when there is doubt about quality or upon request from state management agencies and in accordance with Article 29 of Decree No. 46/2015/NĐ-CP;

d) Supervise and inspect the implementation of measures to ensure environmental hygiene, labor safety, construction safety, and traffic safety during construction as stipulated in the project contract;

7. Regarding acceptance of construction phase, completion of sub-projects, and construction projects put into use;

a) Participate in acceptance of construction phases (if any), completion of sub-projects, and construction projects according to laws on construction;

b) Review documents provided by the Project Enterprise, assess the quality of construction projects, report to the Ministry of Transport to serve the inspection work of state management agencies regarding the acceptance and putting construction projects into use as stipulated in Article 123 of the Construction Law and Article 32 of Decree No. 46/2015/NĐ-CP;

8. Work on establishing and archiving completion documents of construction projects;

a) Guide the Project Enterprise to establish and archive completion documents of construction projects before commissioning and operating sub-projects or construction projects according to construction laws and the project contract;

b) Request the Project Enterprise to transfer a set of completion documents of construction projects for archiving as stipulated in Clause 3, Article 33 of Decree No. 46/2015/NĐ-CP;

c) Guide the Project Enterprise to establish and submit completion documents to the Historical Archive of the Project in accordance with archival laws;

9. Warranty work for construction projects;

Inspect and supervise the implementation of warranty responsibilities for construction projects by the Project Enterprise and contractors as stipulated in Decree No. 46/2015/NĐ-CP, Decree No. 63/2018/NĐ-CP, regulations of the Ministry of Transport, and the project contract;

10. Regarding final settlement of investment capital for construction;

a) Guide investors and the Project Enterprise to complete the final settlement of investment capital for completed construction projects to be submitted to the Ministry of Transport within the time limit specified in the project contract;

b) Guide investors and the Project Enterprise to prepare final settlement project documents; conduct inspections and accept final settlement project documents from investors and the Project Enterprise; be responsible for reviewing and examining final settlement documents, inspecting final settlements according to provisions on final settlement of completed projects; review the implementation status of the project investor and the Project Enterprise based on conclusions from inspection, audit, and supervision agencies; compile and submit in writing to the Ministry of Transport the results of final settlement inspections for the Ministry of Transport to consider and approve final settlement of completed projects as stipulated;

c) For ongoing final settlement projects where remaining values have not been settled (interest on loans during the construction phase, preservation costs on the owner's equity, other costs, etc.), in addition to the tasks at points a and b of this Clause 10, the Project Management Board will review and inspect the project contract conditions, work with the Investor to record quantities and remaining unsettled values as a basis for temporarily determining adjustments in the project contract appendix; after the remaining values are settled, continue updating and recalculating the financial plan of the project, adjust the contract according to regulations;

11. Regarding reporting, monitoring, and evaluating investments;

Inspect and guide investors and the Project Enterprise to implement project monitoring and evaluation according to laws on monitoring and evaluating investments and stipulations in the project contract;

12. For projects using public investment funds to organize design and construction implementation following basic design and construction cost estimates as a basis for tendering to select investors;

a) In cases where the Ministry of Transport is the project investor, perform project management board tasks similar to those for projects using public investment funds, state budget funds, and non-budget state funds managed by the Ministry of Transport;

b) In cases where another agency is designated as the project investor, follow regulations applicable to public investment projects;

13. Reporting system;

a) Monthly (before the 22nd day of the month being reported) or when requested by the Ministry of Transport, report on the project's implementation status up to the reporting date, including progress, volume, value achieved; comments and evaluations on project quality; compliance with construction laws; list of organizations and individuals selected to manage, provide consulting services, construction contractors, equipment suppliers, and other organizations and individuals; mobilized loan and equity capital values; disbursed values and interest rates; advantages and difficulties; other necessary contents;

b) Report immediately in case of construction accidents, force majeure events, or when required by state management agencies or when deemed necessary;

c) Urge the Project Enterprise to comply with the reporting system;

14. Perform other tasks as prescribed by law, the project contract, and the Ministry of Transport.

Article 15. Regarding dThe specialized management agency shall perform all tasks of the competent state authority and the authorized person as prescribed by laws on bidding for projects under Clause 2, Article 4 of this Circular.

Based on the provisions of Article 14 of this Circular, the specialized management agency shall carry out all functions and tasks of the competent State agency during the project implementation phase and upon completion of construction to put the project works into operation in accordance with the laws and the project contract.

Chapter V

OPERATING PHASE, EXPLOITATION AND TRANSFER OF WORKS

Article 16. Tasks of The specialized management agency for projects where the Ministry of Transport is the competent State agency

1.  Submit to the Ministry of Transport for consideration and decision on matters

a)  Related to the transfer of rights and obligations under the project contract for projects specified in Clause 1 of Article 4 of this Circular;

b)  Related to the adjustment of fees (prices), fee (price) collection objects for services and other contents related to service fee (price) collection within the authority to handle and decide of the Ministry of Transport or relevant ministries and sectors;

c)   The annex of the project contract for projects specified in Clause 1 of Article 4 of this Circular.

2.  The specialized management agency shall implement the remaining functions and tasks of the competent State agency during the operating, exploitation, and transfer phases of the project works in accordance with the laws and the project contract.

3.  Reporting system

a)  Monthly reports (before the 10th day of the following month) on revenue and traffic volume; mid-year reports (before July 10) and annual reports (before February 28 of the following year) on traffic conditions, management and maintenance work performance, traffic volume, service fee (price) revenue, other revenues, and other financial indicators as prescribed by law and the project contract. Annual reports must be audited before submission. Develop and issue reporting forms;

b)  Ad hoc reports as required by the competent State management agencies;

c)   Urge the Project Enterprise to comply with the reporting system.

Article 17. Regarding dThe specialized management agency shall perform all tasks of the competent state authority and the authorized person as prescribed by laws on bidding for projects under Clause 2, Article 4 of this Circular.

The specialized management agency shall carry out all functions and tasks of the competent State agency during the operating and exploitation phases in accordance with the laws and the project contract.

Chapter VI

RESPONSIBILITIES OF THE AGENCIES AND UNITS

Article 18. Responsibilities of the Project Management Board

1.   Be responsible for the procedures, accuracy of data, and content of the Preliminary Feasibility Study Report and Feasibility Study Report; the tasks and authorities of the Investor and Tender Inviter in accordance with the laws on bidding in the process of selecting contractors during the project preparation phase; the Tender Inviter in the process of selecting investors;

2.   Be responsible for publishing information on the website: ppp.mt.gov.vn according to the classification level;

3.   Be responsible for performing functions, tasks, and authorities in accordance with the laws and this Circular.

Article 19. Responsibilities of the specialized management agency

1.  Be responsible for the procedures, accuracy of data, and content of the Preliminary Feasibility Study Report and Feasibility Study Report;

2.  Be responsible for performing functions, tasks, and authorities in accordance with the laws and this Circular;

3.  Be responsible for transparently disclosing information related to its management tasks; publish information on the website: ppp.mt.gov.vn according to the classification level;

4.  Be responsible for monitoring and inspecting the revenue recovery of the project; take measures to prevent revenue leakage; control other parameters related to the financial plan of the project during the exploitation period.

Chapter VII

IMPLEMENTING PROVISIONS

Article 20. Transitional Provisions

1. Projects that have signed contracts before this Circular takes effect shall continue to be implemented in accordance with the provisions of the project contracts already signed;

2. For projects that have signed investment agreements or are in the process of negotiating and drafting project contracts, the Project Management Board and the specialized management agencies shall negotiate and agree with investors to incorporate the provisions of this Circular into the project contracts as the basis for implementation;

3. The specialized management agencies, the Project Management Boards, and the agencies and units under the Ministry of Transport shall perform the functions and tasks prescribed in this Circular;

4. When referenced documents are amended or replaced, they shall be applied in accordance with the amended or replaced legal provisions.

Article 21. Effective Date

1. This Circular takes effect from October 27, 2018.

2. In case of difficulties during implementation, organizations and individuals shall submit reports to the Ministry of Transport for consideration and decision./.