DECREE

On investment under public-private partnership model

^____________

 

 

Pursuant to the Law on Government Organization dated June 19, 2015;

Pursuant to the Investment Law dated November 26, 2014;

Pursuant to the Law on Public Investment dated June 18, 2014;

Pursuant to the Law on Procurement dated November 26, 2013;

Pursuant to the Construction Law dated June 18, 2014;

Pursuant to the Law on Management and Use of State Assets dated June 21, 2017;

At the proposal of the Minister of Planning and Investment;

The Government promulgates the Decree on investment under public-private partnership model.

 

PART I

GENERAL PROVISIONS

 

Article 1. Scope of Regulation

This Decree stipulates the scope, conditions, procedures for implementing investment under public-private partnership model.

Article 2. Applicability

This Decree applies to ministries, ministerial-level agencies, agencies under the Government, provincial People's Committees (hereinafter referred to collectively as ministries, sectors, provincial People's Committees), investors, project enterprises, lenders, and organizations, individuals related to investment under public-private partnership model.

Article 3. Explanation of Terms

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

1. Investment under public-private partnership model (hereinafter referred to as PPP) is a form of investment implemented based on a project contract between the competent state agency and the investor, project enterprise to construct, renovate, operate, manage, and provide public services for infrastructure works.

2. Project contract means the contract prescribed in Clauses 3, 4, 5, 6, 7, 8, 9
and 10 of this Article and other contracts as provided for in Clause 4 of Article 40 of this Decree.
3. Build-Operate-Transfer Contract (hereinafter referred to as BOT Contract) is a contract signed between the competent state agency and the investor, project enterprise to construct infrastructure works; after completion of the works, the investor, project enterprise has the right to operate the works for a certain period of time; at the end of the period, the investor, project enterprise transfers the works to the competent state agency.

4. Build-Transfer-Operate Contract (hereinafter referred to as BTO Contract) is a contract signed between the competent state agency and the investor, project enterprise to construct infrastructure works; after completion of the works, the investor, project enterprise transfers the works to the competent state agency and has the right to operate the works for a certain period of time.

5. Build-Transfer Contract (hereinafter referred to as BT Contract) is a contract signed between the competent state agency and the investor, project enterprise (if any) to construct infrastructure works; after completion of the works, the investor transfers the works to the competent state agency and is paid with land funds, office premises, infrastructure assets or rights to operate and exploit works and services to implement another project.

6. Build-Own-Operate Contract (hereinafter referred to as BOO Contract) is a contract signed between the competent state agency and the investor, project enterprise to construct infrastructure works; after completion of the works, the investor, project enterprise owns and has the right to operate the works for a certain period of time; at the end of the period, the investor, project enterprise terminates the operation of the investment project in accordance with the laws on investment.

7. Build-Transfer-Lease Service Contract (hereinafter referred to as BTL Contract) is a contract signed between the competent state agency and the investor, project enterprise to construct infrastructure works; after completion of the works, the investor, project enterprise transfers the works to the competent state agency and has the right to provide services based on operating and exploiting the works for a certain period of time; the competent state agency leases the services and pays the investor, project enterprise.
8. Build-Lease Service-Transfer Contract (hereinafter referred to as BLT Contract) is a contract signed between the competent state agency and the investor, project enterprise to construct infrastructure works; after completion of the works, the investor, project enterprise has the right to provide services based on operating and exploiting the works for a certain period of time; the competent state agency leases the services and pays the investor, project enterprise; at the end of the service provision period, the investor, project enterprise transfers the works to the competent state agency.

9. Operate-and-Manage Contract (hereinafter referred to as O&M Contract) is a contract signed between the competent state agency and the investor, project enterprise to operate part or all of the works for a certain period of time.
10. Hybrid contract is a project contract combining the types of contracts prescribed in Clauses 3, 4, 5, 6, 7, 8, and 9 of this Article.

11. Another project is the corresponding project of the BT project assigned to the investor for implementation according to the provisions of the law.

12. Feasibility study report is a document presenting preliminary research contents on the necessity, feasibility, and effectiveness of the PPP project as the basis for the competent authority to decide on the investment policy.

13. Detailed feasibility study report is a document presenting research contents on the necessity, feasibility, and effectiveness of the PPP project.

14. Total investment capital equals the total investment amount as prescribed by specialized laws plus the initial working capital for exploitation and operation of the PPP project.

15. Shareholder equity is the capital contribution of the investor to implement the PPP project as prescribed in Article 10 of this Decree.

16. Investor is an organization or individual conducting investment activities in accordance with the laws on investment and relevant laws.

17. Project enterprise is an enterprise established by one or more joint venture investors to implement the PPP project.

18. Lender is an organization providing credit to the investor, project enterprise to implement the PPP project.

16. An investor is an organization or individual conducting investment activities in accordance with laws on investment and related laws.

17. A project enterprise is a business established by one or a consortium of investors to implement a PPP project.

18. The lender is a credit institution providing loans to investors and project enterprises for the implementation of PPP projects.

Article 4. Investment Areas and Project Classification

1. The State encourages investment implementation under the PPP model in the following areas:

a) Transportation;

b) Power plants, power transmission lines;

c) Public lighting systems; clean water supply systems; drainage systems; wastewater and waste collection and treatment systems; parks; parking lots for cars, vehicles, machinery, and equipment; cemeteries;

d) Government agency headquarters; public service housing; social housing; resettlement housing;

đ) Healthcare; education, training, vocational training; culture; sports; tourism; science and technology, meteorology and hydrology; information technology applications;

e) Commercial infrastructure; urban area infrastructure, economic zone infrastructure, industrial park infrastructure, concentrated information technology park infrastructure; high-tech technical infrastructure; incubation facilities, technical facilities, shared workspace supporting small and medium-sized enterprises;

g) Agriculture and rural development; services linking production with processing and product consumption;

h) Other areas as decided by the Prime Minister.

2. PPP projects are classified into national key projects, group A, group B, and group C projects according to criteria specified in laws on public investment.
3. Ministries and ministerial-level agencies provide detailed guidance on investment areas within their respective management scope.

Article 5. Investment Preparation Costs and Project Implementation Costs of Ministries, Sectoral Agencies, and Provincial People's Committees

1. Investment preparation costs and project implementation costs include:

a) Preparing and reviewing feasibility studies and preliminary feasibility reports;

b) Organizing investor selection;

c) Activities of project management units under competent state agencies, including contract supervision costs and construction quality control;

d) Announcing projects;
đ) Activities of lead units managing PPP activities;

e) Hiring consultants to support state agencies in fulfilling their responsibilities and obligations as stipulated in Clause 7, Article 8 of this Decree;

g) Organizing related conferences and seminars;

2. Costs specified in points a and b of Clause 1 of this Article shall be allocated from the following sources:

a) State budget funds in accordance with the investment development expenditure plan of ministries, sectors, and provincial people's committees;

h) Other costs.

b) Investment preparation support as stipulated in Article 6 of this Decree;

c) Revenue from selling tender documents for investor selection;

d) Repayment by the selected investor;

đ) Other legitimate sources of funding.

3. Costs specified in points c, d, đ, e, g, and h of Clause 1 of this Article shall be arranged from the state budget funds within the investment development expenditure plan and regular expenditure plan of ministries, sectors, and provincial people's committees.

Article 6. Sources of Investment Preparation Support Funds

1. Based on the ability to mobilize legitimate sources of funding, ministries, sectors, and provincial people's committees proactively form sources of investment preparation support for PPP projects.

2. When using the funds specified in Clause 1 of this Article, ministries, sectors, and provincial people's committees require winning investors to repay the costs already used to create investment preparation funds for other potential PPP projects.

3. The Ministry of Finance provides guidance on implementing this Article.

Article 7. Steering Committee for PPP and Lead Units Managing PPP Activities

1. The Steering Committee for PPP is established and operates based on the Prime Minister's decision.

2. Based on specific management requirements and conditions, ministries, sectors, and provincial people's committees assign specialized subordinate agencies to serve as lead units managing PPP activities of ministries, sectors, and localities (hereinafter referred to collectively as lead units). In necessary cases, ministries and ministerial-level agencies submit proposals to the Government for decisions on establishing specialized units responsible for managing PPP activities within their respective management scopes.

1. The Steering Committee for PPP is established and operates pursuant to the Prime Minister's Decision.

2. Based on specific management requirements and conditions, ministries, sectors, provincial People's Committees assign specialized agencies under their jurisdiction to be the focal units managing PPP activities of the ministry, sector, or locality (hereinafter referred to collectively as the focal unit). In necessary cases, ministries or ministerial-level agencies submit to the Government for a decision on establishing specialized units responsible for managing PPP activities within their respective areas of management.

Article 8. State agencies authorized to conclude and implement project contracts

1. Ministries, sectors, provincial People's Committees are state agencies authorized to conclude and implement rights and obligations stipulated in contracts for projects within their functions, tasks, and powers, or projects assigned by the Prime Minister as state agencies authorized to conclude and implement contracts.

2. In cases where state assets are used according to laws on management and use of state assets at units of people's armed forces, political-social organizations, occupational-political-social organizations, social organizations, occupational-social organizations, or other organizations established under laws on associations to participate in PPP projects, these agencies, organizations, and units shall report to the Prime Minister regarding the assignment of a state agency to be the authorized state agency to conclude and implement the project contract.

3. Ministries and sectors may assign organizations or units under their own ministries and sectors; provincial People's Committees may assign specialized agencies, subordinate agencies, or district People's Committees to perform tasks including preparing project reports, conducting feasibility studies, organizing the selection of investors in accordance with this Decree and laws on bidding.

4. Based on the functions, tasks, powers, and specific management conditions of each ministry, sector, and provincial People's Committee, the delegation of authority to conclude and implement project contracts shall be carried out as follows:

a) Ministries and sectors may delegate authority to organizations under their own ministries and sectors; provincial People's Committees may delegate authority to specialized agencies or district People's Committees to conclude and implement group B and group C project contracts.

b) Ministries, sectors, and provincial People's Committees may delegate authority to self-financing public service units and investment units under their ministries, sectors, and localities to conclude and implement group B and group C project contracts, except in cases where service contracts are applied according to specialized laws.

5. The delegation of authority as prescribed in Clause 4 of this Article must be implemented in writing, specifying the scope and content of the delegation, and the responsibilities of the delegated agency in concluding and implementing project contracts.

6. The authorized state agency or the delegated agency (hereinafter referred to collectively as the authorized state agency) as prescribed in Clause 4 of this Article shall establish a project management unit or assign an already established project management unit with sufficient capacity and expertise to fulfill its responsibilities and obligations under the project contract, but in all cases, it must bear responsibility for the obligations under the concluded project contract.

7. When necessary, the authorized state agency may select independent consulting organizations to support the implementation of responsibilities and obligations as prescribed in Clause 3 and Clause 6 of this Article.

Article 9. Procedures for Implementing PPP Projects

1. Except for cases prescribed in Clause 3 of this Article and projects applying the BT contract type implemented according to Chapter V of this Decree, PPP projects shall be implemented according to the following procedures:

a) Preparing and reviewing the preliminary feasibility study report, deciding on the investment direction, and announcing the project;

b) Preparing and approving the feasibility study report;

c) Organizing the selection of investors;

d) Negotiating, establishing a project company (if applicable), and signing the project contract;
e) Implementing the project; finalizing accounts and transferring the works.

2. Group C projects do not need to prepare and review the preliminary feasibility study report and decide on the investment direction as prescribed in point a of Clause 1 of this Article, but they must announce the project after the feasibility study report has been approved.

3. High-tech application projects as prescribed by laws on high technology shall be implemented according to the following procedures:

c) Preparing the feasibility study report (to be conducted by the winning bidder);

a) Preparing and reviewing the preliminary feasibility study report, deciding on the investment direction, and announcing the project;

c) Activities of project management units under competent state agencies, including contract supervision costs and construction quality control;

d) Organizing the review and approval of the feasibility study report;

e) Implementing the steps prescribed in points d and e of Clause 1 of this Article.

4. If necessary, based on the actual requirements of the PPP project, the authorized state agency may decide to organize a bidding process to select investors (as prescribed in point c of Clause 1 of this Article) after approving the technical design and budget estimate, but must ensure wide competition in the bidding process. Ministries and ministerial-level agencies shall guide the implementation of this content within their respective areas of management.

SOURCES OF FUNDS FOR PROJECT IMPLEMENTATION

 

Chapter II

SOURCES OF FUNDS FOR PROJECT IMPLEMENTATION

Article 10. Shareholder Equity and Investor Capital Raising

1. The investor shall be responsible for contributing shareholder equity and mobilizing other lawful sources of capital to implement the project in accordance with the signed project contract.

2. The ratio of shareholder equity of the investor shall be determined according to the following principles:

a) For projects with total investment up to 1.5 trillion VND, the ratio of shareholder equity of the investor shall not be less than 20% of the total investment;

b) For projects with total investment exceeding 1.5 trillion VND, the ratio of shareholder equity of the investor shall be determined according to the principle that for the portion up to 1.5 trillion VND, the ratio of shareholder equity shall not be less than 20%, and for the portion exceeding 1.5 trillion VND, the ratio of shareholder equity shall not be less than 10%.

3. The State's participation in the PPP project as stipulated in Clause 2 and Clause 4 of Article 11 of this Decree shall not be included in the total investment to determine the ratio of shareholder equity.

4. In BOT contracts, the investor must meet additional requirements regarding shareholder equity (if any) as prescribed by laws on investment, construction, housing, real estate business, and related laws to implement other projects.

Article 11. State Participation in PPP Projects

1. The State's participation in PPP projects shall be implemented in one or more of the following forms:

a) State contribution capital;

b) Payment capital to investors;

c) Land funds, office premises, infrastructure assets paid to investors or rights to operate and exploit works and services transferred to investors under BOT contract projects;

d) Construction support capital for auxiliary works, compensation, land clearance, and resettlement.

2. State contribution capital:

a) State contribution capital is used to support the construction of works to ensure the financial feasibility of the project;

b) State contribution capital is allocated from public investment capital sources as prescribed by laws on public investment or state assets as prescribed by laws on state asset management and utilization;

c) State contribution capital is allocated from public investment capital sources and does not apply to BOT projects.

3. Payment capital to investors:

a) Payment capital to investors is used to pay investors providing services under BLT, BTL contracts;

b) Payment capital to investors is allocated from public investment capital sources, regular expenditure sources to maintain service provision activities, and revenue from service provision activities.

4. Construction support capital for auxiliary works, compensation, land clearance, and resettlement is allocated from public investment capital.

5. In cases where provincial People's Committees use foreign loans provided by the Government as the State's participation in PPP projects, the use of such capital shall be carried out in accordance with the provisions of laws on relending foreign loans provided by the Government to provincial People's Committees.

6. For projects proposed by investors, the State's participation in PPP projects as stipulated in Clause 2 and Clause 3 of this Article shall only be allocated when the project does not apply the tender designation method for investors as prescribed by laws on bidding.

Article 12. Determining the Value of State Participation in PPP Projects

1. The value of the State's participation in PPP projects shall be considered based on
financial plans, the balance of capital sources, and other resources.
other resources.

2. In cases where the State's contribution capital is state assets, ministries, sectors, and provincial People's Committees shall determine the value according to laws on state asset management and utilization, serving as the basis for determining the State's contribution capital in the project.

3. The competent authority specified in Clause 1 of Article 31 of this Decree shall determine the value of the State's participation in PPP projects upon approving the feasibility study report.

4. The Ministry of Finance shall guide the determination of the value of state assets participating in PPP projects.

Article 13. Establishing the State's Investment Plan for its Share in PPP Projects

1. Based on the investment orientation approved by the competent authority as stipulated in Section 1, Chapter III of this Decree, ministries, sectors, and provincial People's Committees shall establish and consolidate the State's share of capital investment in PPP projects into their respective medium-term public investment plans.

2. Based on the medium-term public investment plan and the feasibility study report approved, ministries, sectors, and provincial People's Committees shall establish and consolidate the State's share of capital investment in PPP projects into their respective annual public investment plans.

3. For Category C projects, based on the feasibility study report approved, ministries, sectors, and provincial People's Committees shall establish and consolidate the State's share of capital investment in the project into their respective medium-term and annual public investment plans.

Article 14. Establishing the Budget for Regular Expenditures and Revenue from Public Service Provision to Serve as Payment Capital for Investors

Ministries, sectors, and provincial People's Committees shall establish and consolidate regular expenditure sources and revenue from public service provision to serve as payment capital for investors in accordance with the laws on state budget and relevant laws governing funding sources.

Article 15. Implementing the State's Share in PPP Projects

1. Disbursing the State's equity contribution capital:

a) In cases where public investment capital is utilized, disbursements shall be made based on the volume and value of completed construction works certified by the investor or project enterprise, and authorized by the competent state agency according to the ratio, value, progress, and conditions stipulated in the project contract;

b) In cases where state assets are utilized, the competent state agency shall transfer or sell such assets to the investor or project enterprise according to the value and schedule specified in the project contract.

2. Disbursing payment capital for investors:

a) Payment capital for investors providing services under BOT or BOOT contracts as stipulated in Clause 3, Article 11 of this Decree shall be disbursed from the time services are provided as specified in the project contract;

b) The payment process as stipulated in point a of this clause shall be carried out periodically based on the quantity and quality of services provided as specified in the project contract.

3. Utilizing land funds, office premises, infrastructure assets, or business and exploitation rights of facilities and services to pay investors in BT projects shall be implemented in accordance with the provisions of Chapter V of this Decree.

4. State support capital for constructing auxiliary works, compensation, land clearance, and resettlement as stipulated in Clause 4, Article 11 of this Decree shall be disbursed in accordance with regulations applicable to public investment projects.

5. The Ministry of Finance shall provide guidance on implementing this Article.

 

Chapter III

INVESTMENT ORIENTATION AND ANNOUNCEMENT OF PPP PROJECTS

 

Section 1

PPP PROJECTS ESTABLISHED BY MINISTRIES, SECTORS, AND PROVINCIAL PEOPLE'S COMMITTEES

 

Article 16. Authority to Approve Investment Orientation

1. The National Assembly shall approve the investment orientation for national key projects.

2. The Prime Minister shall approve the investment orientation for the following projects:

a) Category A projects using central government budget capital of 30% or more, or less than 30% but over 300 billion VND in total project investment;

b) Category A projects applying BT contracts.

3. Ministers, heads of ministerial-level agencies, and government-affiliated agencies shall approve the investment orientation for projects not covered by the cases stipulated in Clauses 1 and 2 of this Article within their respective ministries and sectors.

4. Provincial People's Councils shall approve the investment orientation for the following projects:

a) Category A projects not covered by the cases stipulated in Clause 2 of this Article;

b) Category B projects utilizing public investment capital;

c) Category B projects applying BT contracts.

5. Provincial People's Committees shall approve the investment orientation for projects
not covered by the cases stipulated in Clauses 1, 2, and 4 of this Article in their respective localities.

Article 17. Procedures and formalities for deciding on investment orientation

1. The procedures for deciding on investment orientation for national key projects shall be carried out in accordance with the laws on public investment.

2. The procedures for deciding on investment orientation for projects within the decision-making authority of the Prime Minister:

a) Organizations and units specified in Clause 3, Article 8 of this Decree shall organize the preparation of a pre-feasibility study report.

b) Ministries, sectors, People's Committees of provinces shall assign the lead unit managing PPP activities to organize the review of the pre-feasibility study report.

c) In cases where the project uses central government budget funds, the Ministry of Planning and Investment shall take the lead and coordinate with relevant ministries to review the source of funds and the ability to balance funds for this portion.

d) In cases where the project uses local government budget funds, the Department of Planning and Investment shall take the lead and coordinate with relevant agencies to review the source of funds and the ability to balance funds for this portion.

đ) Ministries, sectors, People's Committees of provinces shall submit to the Prime Minister for consideration and decision on the investment orientation of one or more projects (listed) that have been prepared and reviewed in accordance with points a, b, c, and d of this clause.

3. The procedures for deciding on investment orientation for projects within the decision-making authority of Ministers, Heads of ministerial-level agencies, and agencies under the Government:

a) Organizations and units specified in Clause 3, Article 8 of this Decree shall organize the preparation of a pre-feasibility study report.

b) Ministers, Heads of ministerial-level agencies, and agencies under the Government shall assign the lead unit managing PPP activities to organize the review of the pre-feasibility study report.

c) In cases where the project uses central government budget funds, the Ministry of Planning and Investment shall take the lead and coordinate with relevant ministries to review the source of funds and the ability to balance funds for the public investment portion in the project (if any).

d) Organizations and units specified in Clause 3, Article 8 of this Decree shall submit to Ministers, Heads of ministerial-level agencies, and agencies under the Government for consideration and decision on the investment orientation of one or more projects (listed) that have been prepared and reviewed in accordance with points a, b, and c of this clause.

4. The procedures for deciding on investment orientation for projects within the decision-making authority of Provincial People's Councils:

a) Organizations and units specified in Clause 3, Article 8 of this Decree shall organize the preparation of a pre-feasibility study report.

b) People's Committees of provinces shall assign the lead unit managing PPP activities to organize the review of the pre-feasibility study report.

c) In cases where the project uses central government budget funds, the Ministry of Planning and Investment shall take the lead and coordinate with the Ministry of Finance to review the source of funds and the ability to balance funds for this portion.

d) In cases where the project uses local government budget funds, the Department of Planning and Investment shall take the lead and coordinate with relevant agencies to review the source of funds and the ability to balance funds for this portion.

đ) People's Committees of provinces shall submit to Provincial People's Councils for consideration and decision on the investment orientation of one or more projects (listed) that have been prepared and reviewed in accordance with points a, b, c, and d of this clause.

5. The procedures for deciding on investment orientation for projects within the decision-making authority of People's Committees of provinces:

a) Organizations and units specified in Clause 3, Article 8 of this Decree shall organize the preparation of a pre-feasibility study report.

b) People's Committees of provinces shall assign the lead unit managing PPP activities to organize the review of the pre-feasibility study report.

c) Organizations and units specified in Clause 3, Article 8 of this Decree shall submit to People's Committees of provinces for consideration and decision on the investment orientation of one or more projects (listed) that have been prepared and reviewed in accordance with point a and b of this clause.

6. For projects using regular expenditure sources or revenue from public service provision activities to pay investors, ministries, sectors, and People's Committees of provinces shall determine the ability to balance funds in accordance with the laws on state budget.

7. For high-tech application projects specified in Clause 3, Article 9 of this Decree, the pre-feasibility study report shall be approved simultaneously with the investment orientation to serve as the basis for selecting investors.

Article 18. Preparation of a Feasibility Study Report

1. Basis for preparing a feasibility study report:

a) Master plans and development plans for industries and regions, and local socio-economic development plans;

b) Investment needs for development of the industry and locality;

c) Provisions on investment fields under the Public-Private Partnership (PPP) form as stipulated in Article 4 of this Decree.

2. For projects not included in master plans, development plans for industries and regions, and local socio-economic development plans, ministries, sectors, provincial People's Committees shall consider supplementing according to their authority or submit to competent authorities for approval.

3. Contents of a feasibility study report:

a) The necessity of investment; assessment of advantages and impacts of implementing the project under the PPP form on the community and residents within the scope of the project;

b) Compatibility with the investment field; master plans and development plans for industries and regions, and local socio-economic development plans;

c) Preliminary proposal on objectives, scale, location of the project; land use requirements and natural resources;

d) Preliminary analysis of technical requirements, standards, quality of construction works, products, or services provided; preliminary design scheme in accordance with laws on construction (for projects with construction components);

đ) Preliminary economic and social effectiveness of the project; environmental impact assessment reports in accordance with laws on environmental protection;

e) Preliminary overall compensation, land clearance, and resettlement plan;
resettlement;

g) Preliminary financial plan of the project including total investment capital, capital structure, and mobilization methods; state participation in the project (if any); expenses, revenue sources, prices, fees for goods and services; expected capital recovery time, profit; other implementation conditions of the project (for Build-Transfer (BT) projects);

h) Preliminary selection of project contract types;

i) Preliminary risk analysis during project implementation and allocation of responsibilities among parties in managing risks arising during project implementation;

k) Preliminary schedule and duration of the contract; construction and operation period of the works; management and business organization or service provision schemes;

l) Preliminary forms of incentives and investment guarantees (if any);

m) Other necessary contents as prescribed by specialized laws.

Article 19. Documents submitted to competent authorities for investment policy decision

1. Proposal for investment policy decision.

2. Feasibility study report.

3. Review report on the feasibility study report.

4. Review report on capital sources and capital balancing capacity in accordance with laws on public investment for projects using public investment funds as state participation in PPP projects.

5. Document containing the opinion of the finance agency in accordance with laws on state budget for projects using regular expenditure or revenue from public service provision activities as payment to investors.

Article 20. Conditions and contents of investment policy decision

1. Conditions for making an investment policy decision:

a) Compliance with industry and sector development plans; approved socio-economic development plans;

b) Compliance with investment fields as stipulated in Article 4 of this Decree;

c) No overlap with projects that have already received investment policy decisions or investment decisions;

d) Possibility of capital recovery for investors;

đ) Compliance with the ability to balance state participation in PPP projects;

e) Environmental impact assessment report in accordance with laws on environmental protection.

2. Contents of the investment policy decision for PPP projects include: Project name; objectives; preliminary scale, capacity, location; expected implementation time, total investment capital, capital structure, and state participation in PPP projects (if any).

Article 21. Announcement of Projects

1. Within seven working days from the date of the competent authority's decision on the investment policy, ministries, sectors, provincial People's Committees shall announce the project and project list on the National Bidding Network System in accordance with laws on bidding.

2. Announced projects shall include the following main contents:

a) Project name and type of project contract;

b) Objectives, scale, location of the project and other projects (for BT projects);

c) Summary of technical requirements, standards, quality of construction works, products, or services provided;

d) Estimated total investment capital; state participation in PPP projects (if any);

đ) Estimated project implementation schedule including time for preparing the feasibility study report; time for organizing bidding to select investors; construction and completion time and commissioning time;

e) Updated information on project implementation status as stipulated in point đ clause 34;

g) Contact address of the competent state agency or tenderer.

 

Section 2

PROJECTS PROPOSED BY INVESTORS

 

Article 22. Conditions for Proposing Projects

1. Investors may propose projects outside those approved and announced by ministries, sectors, provincial People's Committees according to the provisions of Section 1 of this Chapter.

2. Projects proposed by investors must meet the following requirements:

a) The conditions stipulated in Clause 1 of Article 20 of this Decree;

b) State-owned enterprises proposing projects must form a consortium with other enterprises but must ensure competition in bidding in accordance with the law on bidding.

Article 23. Documents for Proposing Projects by Investors

1. A proposal document for implementing the project, including a commitment to bear all costs and risks if the project proposal is not approved.

2. A preliminary feasibility study report (including the contents specified in Clause 3 of Article 18 of this Decree) or a feasibility study report for Group C projects (including the contents specified in Clause 1 of Article 29 of this Decree).

3. Documents regarding the legal status, capacity, and experience of the investor.

4. Other necessary documents to explain the project proposal documents (if any).

Article 24. Decision on Investment Orientation for Projects Proposed by Investors

1. Projects proposed by investors shall be appraised and decided upon investment orientation according to the procedures and formalities prescribed in Article 17 of this Decree.

2. For projects where two or more investors submit project proposal documents (prepared according to the requirements set out in Article 23 of this Decree):

a) Ministries, sectors, and provincial People's Committees shall consider and select the most feasible and effective project proposal based on factors such as the necessity of investment; technical and financial feasibility; economic and social effectiveness of the project; the capacity and experience of the investor, and other relevant factors;

b) The Ministry of Planning and Investment shall guide the implementation of this content.

3. The time limit for appraisal and approval of investment orientation for projects proposed by investors (excluding the time for appraising the funding source and the ability to balance public investment funds) is as follows:

a) For Group A projects: up to 60 days from the date of receiving complete valid documents;

b) For Group B projects: up to 30 days from the date of receiving complete valid documents.

Article 25. Announcing Projects Proposed by Investors

1. In cases where projects proposed by investors are approved for investment orientation, ministries, sectors, and provincial People's Committees shall announce the projects and information about the proposing investors according to the provisions of Article 21 of this Decree.

2. For projects involving intellectual property rights, trade secrets, technology, or fundraising agreements that require confidentiality, investors shall agree with ministries, sectors, and provincial People's Committees on the content of the announcement.

 

Section 3

TRANSITION FROM PUBLIC INVESTMENT PROJECTS TO PPP PROJECTS

 

Article 26. Forms of Transition

1. Public investment projects currently being implemented with public investment funds meeting the conditions stipulated in Clause 1 of Article 20 of this Decree may be considered for transition to PPP implementation under one of the types of project contracts specified in Clauses 3, 4, 5, 6, 7, 8, and 10 of Article 3 of this Decree or another type of contract specified in Clause 4 of Article 40 of this Decree.

2. Transition Plan

a) The competent state agency withdraws the entire amount of public investment funds already invested in the project. The investor repays the state the amount of public investment funds already invested according to the agreed schedule in the project contract; is responsible for arranging the remaining capital to continue investing the project under the PPP form;

b) The competent state agency uses the entire or part of the public investment funds already invested as the state's contribution in the PPP project. The investor is responsible for arranging the remaining capital to continue investing the project under the PPP form.

3. The value of the public investment funds already invested as specified in point a and b of Clause 2 of this Article shall be determined based on the settlement of the construction project to the time of transitioning the investment form according to the guidance of the Ministry of Finance.

Article 27. Procedures and formalities for changing the form of investment

1. The competent authority that approves the decision to change the form of investment and feasibility study report of the project to be changed is the authority that has decided to invest in the previous public investment project.

2. Documents submitted to the competent authority for approval of the decision to change the form of investment and feasibility study report of the project to be changed include:

a) A proposal document for changing the form of investment, specifying: Reasons and necessity for changing the form of investment; form and method of changing according to Article 26 of this Decree;

b) Report on the implementation status of the project up to the time of proposing to change the form of investment as prescribed by laws on public investment;

c) Feasibility study report of the project to be changed;

d) Report on the review of the feasibility study report of the project to be changed;

đ) For projects to be changed implemented under the PPP model and expected to use regular budget funds or revenue from public service provision activities, the documents must include a document with the opinion of the financial agency as stipulated in Clause 5, Article 19 of this Decree.

3. Procedures for approving the decision to change the form of investment and feasibility study report of the project to be changed shall be carried out in accordance with Articles 30 and 31 of this Decree.

4. After the competent authority approves the decision to change the form of investment and feasibility study report of the project to be changed, ministries, sectors, and provincial People's Committees organize the selection of investors to implement the project.

 

Chapter IV

PREPARATION, REVIEW AND APPROVAL OF FEASIBILITY STUDY REPORTS

 

Article 28. Responsibilities for preparing feasibility study reports

1. Ministries, sectors, and provincial People's Committees assign organizations and units specified in Clause 3, Article 8 of this Decree to organize the preparation of feasibility study reports as the basis for selecting investors.

2. For projects proposed by investors and approved according to Article 24 of this Decree, ministries, sectors, and provincial People's Committees assign investors to organize the preparation of feasibility study reports.

3. For high-tech projects specified in Clause 3, Article 9 of this Decree, ministries, sectors, and provincial People's Committees assign winning investors to organize the preparation of feasibility study reports.

4. The assignment to investors to organize the preparation of feasibility study reports as stipulated in Clauses 2 and 3 of this Article shall be carried out based on a written agreement between ministries, sectors, provincial People's Committees, and investors. The agreement must specify the purpose; requirements; costs for preparing the feasibility study report; costs for hiring independent consultants to review and audit, and principles for handling in the following cases:

a) For projects specified in Clause 2 of this Article, the agreement must clearly state the principle for handling in the case where the feasibility study report is not approved, the investor will bear all resulting costs, and if another investor wins the bid to implement the project, the proposing investor will be reimbursed the cost of preparing the feasibility study report by the winning investor;

b) For projects specified in Clause 3 of this Article, the agreement must clearly state the principle for handling in the case where the feasibility study report is not approved and the project does not proceed with negotiations, discussions, or signing contracts, the investor will bear all resulting costs.

Article 29. Contents of the Feasibility Study Report

1. The feasibility study report for a project shall include the following main contents:

a) Detailed analysis of the necessity of investment and the advantages of implementing the project compared to other forms of investment; consultation on the impact of the project's implementation from one or more of the following agencies or organizations: People's Council, People's Committee, provincial or city-level delegation of the National Assembly; relevant professional associations;

b) Evaluation of the project's alignment with the investment sector; planning, industry development plans, and local development plans;

c) Objectives, scale, components (if any), and location of the project; land requirements and resource needs;

d) Explanation of technical and technological requirements to meet the quality standards of the project's works, products, or services provided; assessment of the current status of works, machinery, equipment, asset value (for O&M contracts); basic design in accordance with construction laws (for projects with construction components);
construction;

đ) Economic and social benefits and the project's impact on the environment, society, national defense, and security;

e) Resettlement and land clearance compensation plan;

g) Financial plan of the project (including the contents stipulated in point g, Clause 3, Article 18 of this Decree);

h) Ability to mobilize capital to implement the project; evaluation of market demand and payment capacity; survey of investors' and lenders' interest in the project;

i) Type of project contract;

k) Duration and term of the project contract; construction and operation time; organization management, business, or service provision plan;

l) Risk analysis and allocation of responsibilities among parties in managing risks arising during project implementation;

m) Recommendations for investment incentives and guarantees (if any);

n) Other necessary contents as prescribed by specialized laws.

2. Ministries and equivalent agencies shall provide detailed guidance on the contents of the feasibility study report in accordance with the requirements of their respective sectors and fields.
feasibility studies appropriate to the project implementation requirements of the industry or field they manage.

Article 30. Review of the Feasibility Study Report

1. Responsibilities for reviewing the feasibility study report:

a) The State Appraisal Council shall review the feasibility study report for national key projects; projects using ODA and preferential foreign loan funds as state equity contributions in the fields of national defense, security, and religion;

b) The Minister, Head of an equivalent agency, or Chairman of the Provincial People's Committee shall assign the lead unit responsible for PPP activities to head the review of the feasibility study report for projects not covered under point a of this clause.

2. Content of the review:

a) The necessity of implementing the project: Alignment of the project with sectoral, regional, and local development plans; advantages of implementing the project through the PPP model compared to other investment models;

b) Suitability of basic factors: Project objectives and scale, location; design, technical, and technological requirements; unit prices, norms, and design solutions to reduce construction costs; organizational management and business or service provision plans. Basic design shall be reviewed according to construction laws for projects with construction components or according to specialized laws for projects without construction components;

c) Project effectiveness: Results and contributions to economic and social development tasks; environmental, social, and national defense impacts;
security;

d) Project feasibility: Financial plan, ability to mobilize resources for project implementation; land use, clearance, and resource utilization needs; supply capacity and implementation solutions to meet user demand and payment capacity; investor and lender interest in the project;

đ) Suitability of the project contract type: Contract type and duration; risks during construction, operation, and management, and preventive measures to mitigate risks;

e) Other necessary contents.

3. For Group C projects using public investment funds, ministries, sectors, and provincial People's Committees shall organize reviews of funding sources and financial balance capabilities for the public investment portion according to the分级处理此长文本翻译任务，确保每个部分都准确无误。从第30行开始继续翻译：

4. Time limit for reviewing the feasibility study report:

a) For national key projects: Not exceeding 90 days;

b) For Group A projects: Not exceeding 40 days;

c) For Group B and Group C projects: Not exceeding 30 days.

5. The reviewing authority may select consultants to review part or all of the contents specified in Clause 2 of this Article.

Article 31. Approval of the Feasibility Study Report

1. Authority to approve the feasibility study report:

a) The Prime Minister approves the feasibility study report for national key projects; projects using ODA and preferential foreign loan funds as state equity contributions in the fields of national defense, security, and religion;

b) The Minister, Head of an equivalent agency, government agency, or Chairman of the Provincial People's Committee approves the feasibility study report for projects not covered under point a of this clause.

2. Documents for approval of the feasibility study report:

a) Request for approval of the feasibility study report;

b) Feasibility study report;

c) Review report on the feasibility study report;

d) Decision on the investment policy for the project (except for Group C projects); review report on funding sources and financial balance capability for Group C projects using public investment funds;

đ) Relevant documents and legal texts.

3. For Group C projects using public investment funds, the approved feasibility study report serves as the basis for compiling and consolidating public investment funds in the medium-term and annual investment plans according to Clause 3, Article 13 of this Decree.

Article 32. Amendment of the Feasibility Study Report

1. Projects will be considered for amendment in the following cases:

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

b) The appearance of factors that significantly improve the financial and socio-economic benefits of the project;

c) Changes in planning that directly affect the project's objectives, location, and scale.

d) The project does not attract investors' interest after market research, preliminary selection, or bidding to select investors;

đ) Other cases as prescribed by specialized laws or decisions of the Prime Minister;

2. The procedures for reviewing and approving feasibility study reports for adjustment projects shall be implemented in accordance with Articles 30 and 31 of this Decree;

 

Chapter V

PROCEDURES FOR IMPLEMENTING PROJECTS UNDER BT CONTRACTS

 

Article 33. Procedures for implementing projects under BT contracts

1. Implementation procedures:

a) Preparing and reviewing the pre-feasibility study report, deciding on investment orientation, and announcing the project in accordance with Chapter III of this Decree;

b) Preparing and reviewing the feasibility study report and approving it in accordance with Chapter IV of this Decree;

c) Preparing, reviewing, and approving the design and budget estimate in accordance with the Construction Law or relevant specialized laws;

d) Organizing the selection of investors; negotiating and signing the project contract in accordance with Chapter VI of this Decree;

đ) Implementing construction works; finalizing accounts and transferring the works in accordance with Chapters VII and VIII of this Decree;

2. Responsibilities for preparing the design and budget estimate:

a) Ministries, sectors, or provincial People's Committees shall assign organizations or units specified in Clause 3, Article 8 of this Decree to prepare the design and budget estimate;

b) For projects proposed by investors, ministries, sectors, or provincial People's Committees shall assign investors to organize the preparation of the design and budget estimate. This assignment shall be based on a written agreement between ministries, sectors, provincial People's Committees, and investors. The agreement must specify the purpose, requirements, costs for preparing the design, costs for hiring independent consultants to review, and principles for handling situations where another investor is selected to implement the project;

3. Reviewing and Approving the Design and Budget Estimate:

a) The competent authority on construction in accordance with the Construction Law or the agency assigned to review according to specialized laws shall review the design and budget estimate;

b) Ministries, sectors, provincial People's Committees, or agencies authorized to sign and implement the contract shall approve the design and budget estimate;

4. Investors in BT projects are not required to follow the procedures and formalities for deciding on investment orientation and depositing guarantees under the Investment Law to implement other projects;

Article 34. Payment Methods for Investors in BT Contracts

1. Utilize the value of land use rights, office premises, and infrastructure assets in accordance with laws on managing and using state assets;

2. Grant business operation rights and exploitation of works and services to investors in accordance with specialized laws;

Article 35. Principles for Implementing BT Contracts Using the Value of Land Use Rights, Office Premises, and Infrastructure Assets

1. The fund of land, office premises, and infrastructure assets intended to be paid to investors shall be determined and approved in the feasibility study report, serving as the basis for selecting investors;

2. The detailed planning at a scale of 1/2,000 or 1/500 (if applicable) of the land fund intended to be paid to investors must be prepared and approved in accordance with the law before the feasibility study report is approved. In cases where the planning is adjusted leading to changes in the value of land use fees or land rental fees, the competent state authority and the investor shall re-determine the value of land use fees or land rental fees to ensure that there is no loss of state budget funds and to balance the interests of the investor and the public;

3. Principles for handling situations when the planning of the land fund intended to be paid to investors is adjusted must be stipulated in the project contract, including the following contents: Cases permitted to adjust the planning; commitment not to disrupt the overall planning of the area or locality when adjusting the planning; negotiation mechanisms when adjusting the planning leads to changes in the value of land use;

4. Procedures and formalities for paying BT contracts using the value of land use rights, office premises, and infrastructure assets in accordance with laws on managing and using state assets.

Article 36. Principles for Implementing BOT Contracts through Franchise Rights to Operate and Exploit Projects and Services for Investors

1. The scope and duration of franchise rights to operate and exploit projects and services granted to investors shall be determined on the basis of balancing interests between the State and investors.

2. The scope and duration of franchise rights to operate and exploit projects and services granted to investors, as specified in Clause 1 of this Article, shall be approved in the feasibility study report and serve as the basis for organizing the selection of investors.

3. The time of granting franchise rights to operate and exploit projects and services to investors shall be carried out according to the agreement stipulated in the project contract.

4. The exercise of business and exploitation rights of investors must ensure that it does not affect the operation of parts of the project belonging to competent state agencies when operating concurrently.

 

Chapter VI

SELECTION OF INVESTORS AND ESTABLISHMENT OF PROJECT ENTERPRISES
PROJECTS AND SIGNING OF PROJECT CONTRACTS

 

Article 37. Selection of Investors

1. The selection of investors shall be conducted in accordance with the provisions of the Law on Bidding.

2. Investors shall enjoy incentives during the bidding process for selecting investors if their feasibility study reports have been approved by ministries, sectors, or provincial People's Committees.

Article 38. Establishment of Project Enterprises

1. After receiving the decision approving the results of investor selection, except in cases provided for in Clause 2 of this Article, investors shall establish enterprises to implement the projects. The procedures and documents for establishing project enterprises shall comply with the provisions of the Enterprise Law.

2. For projects applying the BOT contract type or group C projects, investors may decide to establish project enterprises as stipulated in Clause 1 of this Article or directly implement the projects but must organize independent management and accounting of investment capital and project activities.

3. Management, operations, and dissolution of project enterprises shall be carried out in accordance with the provisions of the Enterprise Law, Investment Law, and project contracts.

4. The owner's equity of investors shall be contributed according to the agreed schedule in the project contract. At the time of registering to establish a project enterprise, investors shall determine the proportion of owner's equity to be contributed to the registered capital of the project enterprise in compliance with the provisions of the Enterprise Law. In cases where the registered capital of the project enterprise is lower than the committed owner's equity of the investor, the project contract must include a roadmap for increasing the registered capital of the project enterprise, consistent with the project implementation schedule.

Article 39. Signing of Project Contracts

Based on the decision approving the results of investor selection and the outcomes of negotiations and contract completion, the competent state agency shall organize the signing of project contracts in one of the following ways:

1. The competent state agency and the investor sign the project contract. In this case, the competent state agency, the investor, and the project enterprise (if any) shall 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 contract.
10. Hybrid contract is a project contract combining the types of contracts prescribed in Clauses 3, 4, 5, 6, 7, 8, and 9 of this Article.

2. The investor and the project enterprise form one party to sign the project contract with the competent state agency.

Article 40. Contents of the project contract

1. Based on the objectives, nature, and type of the project contract, the parties shall agree on all or some of the following basic contents:

a) Objectives, scale, location, duration, and progress of implementing the project; construction time for the project works;

b) Technical requirements, technology, quality of the project works, products, or services provided;

c) Total investment capital and financial plan of the project;

d) Value, conditions, ratio, and progress of the State's participation in the PPP project (if applicable); principles for handling changes in land value when the master plan for land to be paid to the investor in the BT project is adjusted by the competent authority;

đ) Land use conditions and related works;

e) Compensation, clearance, resettlement;

g) Construction; requirements for inspection, supervision, and quality management during construction; acceptance and settlement of completed project works;

h) Inspection, operation, maintenance, business, and exploitation of project works; transfer of project works;

i) Safety assurance and environmental protection;

k) Conditions and procedures for the lender to accept the project;

l) Risk allocation and responsibilities of the parties in the contract including the competent state agency, authorized agency (in case of delegation), and the investor; principles for handling disputes; force majeure events;

m) Forms of incentives and investment guarantees (if applicable);

n) Laws governing the project contract relationship, related contracts, and dispute resolution mechanisms;

o) Effectiveness and duration of the project contract;

p) Principles and conditions for amending, supplementing, terminating the project contract; transferring rights and obligations under the project contract;

q) Other contents agreed upon by the signing parties.

2. Documents accompanying the project contract (if any) include appendices, other documents, and papers which are integral parts of the project contract.

3. The mixed contract prescribed in Clause 10, Article 3 of this Decree shall be decided by ministries, sectors, or provincial People's Committees based on ensuring the economic and financial efficiency of the project and the principle of harmonizing the interests of the State, investors, and users.

4. In cases where other types of contracts different from those specified in Clauses 3, 4, 5, 6, 7, 8, 9, and 10 of Article 3 of this Decree are applied:

a) Ministries, sectors, or provincial People's Committees shall prepare proposals for applying such other types of contracts, submit them to the Ministry of Planning and Investment for consolidation, and present them to the Prime Minister for consideration and approval.

b) Proposals for applying other types of contracts shall include the following contents: the necessity and advantages of applying such other types of contracts compared to the types of contracts stipulated in Article 3 of this Decree; construction methods, ownership, management, business, operation, exploitation, and transfer of project works; service provision methods, recovery of investment capital, and profits for investors; international experience regarding the application of the proposed contract type (if available).

5. Based on the provisions of Clause 1 of this Article, ministries or agencies at the ministerial level shall provide detailed guidelines for model project contracts suitable for the implementation requirements of their respective industries and fields.

Article 41. Public Disclosure of Project Contract Information

1. Within seven working days from the date of signing the project contract, the competent state agency shall be responsible for publicly disclosing information about the project contract on the National Procurement Network System.

2. The disclosed information includes:

a) Name of the project; contract number, contract signing date;

b) Name and address of the competent state agency;

c) Name and address of the investor; name and address of the project company established;

d) Project implementation location, land area used;

đ) Basic parameters for monitoring the quality of works and services provided by the investor during the operational phase;

e) Total investment capital; contributed and raised capital by the investor; State's participation in the PPP project (if applicable);

g) Type of contract, contract duration, anticipated project work transfer date (if applicable);

h) Price, fee for goods and services; form and location of price and fee collection;
(if applicable);

i) Other necessary information.

3. In cases where amendments or supplements to the project contract lead to changes in the information prescribed in Clause 2 of this Article, the competent state agency shall update it on the National Procurement Network System within seven days from the date of signing the contract appendix.

4. The information prescribed in Clause 2 of this Article is encouraged to be posted on the website of the competent state agency or on other mass media.

Article 42. Right to Acceptance of the Project by the Lender

1. The lender has the right to accept or designate an organization with sufficient capacity to accept part or all of the rights and obligations of the investor or project enterprise (hereinafter referred to as the right to accept the project) in cases where the investor or project enterprise fails to fulfill the obligations stipulated in the project contract or loan contract.

2. Agreements regarding the right to accept the project must be documented in writing between the lender and the competent state agency or the parties signing the project contract.

3. After accepting the project, the lender or the organization designated by the lender must fully perform the corresponding obligations of the investor or project enterprise as prescribed in the project contract and the agreement on the right to accept the project.

Article 43. Transfer of Rights and Obligations under the Project Contract

1. The investor has the right to transfer part or all of the rights and obligations under the signed project contract to the lender or another investor after completing construction for projects with construction components or after transitioning to the operation phase for projects without construction components.

2. The transfer of part or all of the rights and obligations under the project contract shall not affect the objectives, scale, technical standards, implementation schedule of the project, and must meet the investment and business conditions prescribed by law on investment and other conditions agreed upon in the project contract.

3. The agreement on the transfer provided for in Clause 1 of this Article must be documented in writing and signed among the parties to the project contract and the transferee. The lender participates in negotiating the transfer agreement according to the loan contract.

4. The transferee must meet the following requirements:

a) Having financial and management capabilities to implement the project contract and related contracts;

b) Committing to continue performing the rights and obligations of the transferor as stipulated in the project contract and related contracts;

c) Other requirements as agreed upon in the project contract, loan contract, and related agreements between the competent state agency and the investor or project enterprise.

5. In cases where transferring rights and obligations under the project contract changes the registered business content, the project enterprise must complete the procedures to change the registered business content in accordance with the law on enterprises.

6. In cases where transferring rights and obligations under the project contract generates income, the transferor must fulfill their financial obligations in accordance with the law on taxes and the project contract.

Article 44. Amendment and Supplement to the Project Contract

The project contract may be amended or supplemented due to changes in the scale, technical standards of the works, total investment capital already agreed upon, or due to force majeure events, adjustments to the feasibility study report as prescribed in Article 32 of this Decree, and other cases as stipulated in the project contract.

Article 45. Duration of the Project Contract

1. The duration of the project contract is agreed upon by the parties in accordance with the field, scale, nature, and type of the project contract.

2. The project contract terminates its effectiveness upon the expiration of the agreed duration or prematurely due to the fault of one of the parties without effective remedial measures, due to force majeure events, or other cases as stipulated in the project contract.

3. The parties sign an agreement on the conditions for terminating the project contract and the measures to handle the termination of the project contract.

Article 46. Application of Foreign Law

The parties to the agreement may agree on the application of foreign law to regulate the project contract and other related contracts and agreements in accordance with the Civil Code.

Article 47. Guarantee for the Implementation of Project Contracts

The competent state agency and the investor shall agree on the form, value, and duration of effectiveness of the guarantee for the implementation of the project contract in accordance with the provisions of the law on bidding.

 

Chapter VII

IMPLEMENTATION OF PROJECTS

 

Article 48. Selection of Contractors for Project Implementation

The investor and the project enterprise shall issue regulations on selecting consulting contractors, suppliers of goods, construction works, and other contractors based on ensuring fairness, transparency, and economic efficiency to be uniformly applied during the implementation process.
10. Hybrid contract is a project contract combining the types of contracts prescribed in Clauses 3, 4, 5, 6, 7, 8, and 9 of this Article.

Article 49. Land Clearing and Preparation

1. The provincial People's Committee shall be responsible for organizing land clearance and completing land transfer and lease procedures to implement the project in accordance with the laws on land, the project contract, and related contracts.

2. The competent state agency shall coordinate with the provincial People's Committee to fulfill the responsibility stipulated in Clause 1 of this Article.

Article 50. Establishment, Review, and Approval of Construction Design

1. Except for projects applying the BT contract type prescribed in Chapter V of this Decree, based on the feasibility study report and the provisions of the project contract, the investor and the project enterprise shall establish the construction design, submit it to the specialized agency on construction for review before approval, and simultaneously submit it to the competent state agency for monitoring and supervision. Any changes to the construction design that affect the scale and progress of the project must be approved in writing by the competent state agency before approval.

2. The review of construction design shall be carried out in accordance with the provisions of the law on construction.

Article 51. Supervision of Project Contract Implementation

1. The investor and the project enterprise shall be responsible for the quality of the works and services of the project.

2. Except for BT projects implemented according to the provisions of Clause 2 of Article 52 of this Decree, the investor shall self-supervise and manage or hire an independent consulting organization to manage and supervise construction work, inspect individual items, and the entire project according to the design and business plan specified in the project contract.

3. The competent state agency shall monitor the compliance of the investor and the project enterprise with their obligations under the project contract.

4. If necessary, the competent state agency may hire a consulting organization with sufficient capacity and experience to support the performance of the tasks stipulated in Clause 3 of this Article.

Article 52. Quality Control of Works

1. During the organization and implementation of construction works according to the project contract, in addition to the tasks stipulated in Article 51 of this Decree, the competent state agency shall have the responsibility to:

a) Organize inspections of the supervision of the construction work process according to the requirements set forth in the project contract;

b) Inspect compliance with management operation procedures, standards, and norms of the works according to the project contract;

c) Organize testing of the quality of parts of the works, individual items, and the entire construction works when there is doubt about the quality or when requested by the state management agency;

d) Request the investor to require the contractor to adjust or suspend construction if the quality of the work performed does not meet the requirements.

2. For projects applying the BT contract type, the competent state agency shall directly be responsible or assign the project management unit or project management board as prescribed in Clause 6 of Article 8 of this Decree to cooperate with the investor to carry out quality control of the project works according to the project contract. The content, scope, and responsibilities of the supervision shall be carried out in accordance with the provisions of the law on construction.

3. If necessary, the competent state agency or the project management unit or project management board as prescribed in Clause 6 of Article 8 of this Decree may hire a consulting organization with sufficient capacity and experience to support the performance of the tasks stipulated in Clause 2 of this Article.

4. The Ministry of Construction shall provide guidance on the implementation of this Article.

Article 53. Management and operation of project works

1. The investor or project enterprise shall manage and operate the project works or implement other projects as agreed upon in the contract.
10. Hybrid contract is a project contract combining the types of contracts prescribed in Clauses 3, 4, 5, 6, 7, 8, and 9 of this Article.

2. During the operation of the works or provision of services, the project enterprise shall be responsible for the following:

a) Supplying products and services and performing other obligations as required and stipulated in the project contract;

b) Ensuring the use of the works in accordance with the conditions specified in the project contract;

c) Treating all users of the products and services provided by the project enterprise equally; it shall not use its right to operate the works to refuse service provision to users;

d) Repairing, maintaining regularly, and ensuring safe operation of the works according to the design or procedures committed in the project contract.

Article 54. Prices, Fees for Goods and Services and Revenue

1. Prices, fees for goods and services, revenues, and conditions and procedures for adjustment shall be stipulated in the project contract based on the principle of ensuring benefits among investors, project enterprises, users, and the State, creating favorable conditions for investors to recover capital and profits.

2. The agreement and adjustment of prices, fees for goods and services, and revenues managed by the State must comply with the provisions of laws on prices and fees and the conditions stipulated in the project contract.

3. When adjusting prices, fees for goods and services, and revenues (if applicable), the project enterprise (or investor if no project enterprise is established) must notify the users at least thirty days in advance.
providing services.

Article 55. Support for Collection of Prices and Service Fees

Investors and project enterprises shall be facilitated to collect prices, service fees, and other revenues as stipulated in the contract.
10. Hybrid contract is a project contract combining the types of contracts prescribed in Clauses 3, 4, 5, 6, 7, 8, and 9 of this Article.

Article 56. Supervision, Evaluation of Investment, and Financial Disclosure

1. The supervision and evaluation of projects shall be carried out in accordance with the laws on supervision and evaluation of investment and the agreements in the project contract.

2. Investors and project enterprises shall disclose financial reports and audit reports in accordance with the laws and agreements in the project contract.

 

Chapter VIII

SETTLEMENT AND TRANSFER OF PROJECT WORKS

 

Article 57. Settlement of Project Works

1. From the date of completion of the project works, the competent state agency and the investor shall complete the settlement procedures for construction investment capital within the following timeframes:

a) For national key projects, Group A: nine months;

b) For Group B projects: six months;

c) For Group C projects: three months.

2. The competent state agency shall agree with the investor in the project contract on selecting an independent auditing organization with capability and experience to conduct the audit of the construction investment capital value.
10. Hybrid contract is a project contract combining the types of contracts prescribed in Clauses 3, 4, 5, 6, 7, 8, and 9 of this Article.

3. For BT projects, the competent state agency shall carry out the settlement procedures for construction investment capital in accordance with the regulations on settlement of projects funded by state budget.

4. After completing the settlement of project works, ministries, sectors, and provincial People's Committees shall have the responsibility to submit reports to the Ministry of Finance for consolidation and monitoring.
monitoring.

5. The Ministry of Finance shall provide guidance on implementing this Article.

Article 58. Transfer of Project Works

1. In cases where the project contract stipulates the transfer of project works, the competent state agency and the investor shall agree in the project contract on the conditions and procedures for transferring the works.

2. The transfer of project works shall be carried out according to the following conditions and procedures:

a) One year before the transfer date or within the agreed period in the project contract, the investor and the project enterprise must publish information publicly about the transfer of works, the settlement procedures, the contract termination deadlines, and debt payments;

b) The competent state agency shall organize the appraisal of the quality, value, and condition of the works in accordance with the agreement in the project contract, compile a list of assets to be transferred, identify any damages (if any), and require the project enterprise to carry out repairs and maintenance of the works;

c) The investor and the project enterprise must ensure that the transferred assets are not used to guarantee the fulfillment of financial obligations or other obligations arising from the investor or the project enterprise prior to the transfer date, except in cases where the project contract provides otherwise;

d) The project enterprise is responsible for transferring technology, training, and performing regular maintenance and major overhauls to ensure the technical operating conditions of the works meet the requirements of the project contract;

đ) After receiving the project works, the competent state agency shall organize the management and operation of the works according to its functions and authorities;

 

Chapter IX

INVESTMENT INCENTIVES AND GUARANTEES

 

Article 59. Investment Incentives

1. Investors and project enterprises shall enjoy tax incentives on corporate income tax as prescribed by the Corporate Income Tax Law.

2. Goods imported for the implementation of the project shall enjoy tax incentives as prescribed by the Export Duties Law and Import Duties Law.

3. Investors and project enterprises shall be exempted or granted reductions in land use fees for the area of land allocated by the State or granted reductions in land lease fees during the implementation of the project in accordance with the provisions of the Land Law.

4. Investors and project enterprises shall enjoy other incentives as prescribed by law.

Article 60. Taxes for Contractors Participating in the Implementation of Projects

Contractors participating in the implementation of projects shall fulfill their tax obligations and enjoy tax incentives as prescribed by law.

Article 61. Guaranteeing Obligations of Investors, Project Enterprises, and Other Enterprises

Based on the nature and requirements of implementing the project, the Prime Minister shall designate an agency representing the Government to guarantee the provision of raw materials, product sales, services, and other contractual obligations to investors, project enterprises, or other enterprises participating in the implementation of the project, and to guarantee the obligations of state-owned enterprises selling fuel, raw materials, purchasing products, and services from investors and project enterprises.

Article 62. Pledging Assets and Business Rights of Project Works

1. Investors and project enterprises may pledge assets, land use rights, and business rights of project works to lenders in accordance with the provisions of the Land Law and Civil Code. The pledging period shall not exceed the term of the project contract, except in cases where the project contract provides otherwise.

2. The agreement on pledging assets and business rights of project works must be documented in a written agreement signed between the lender and the parties to the contract.
10. Hybrid contract is a project contract combining the types of contracts prescribed in Clauses 3, 4, 5, 6, 7, 8, and 9 of this Article.

3. Pledging assets and business rights of project works shall not affect the objectives, scale, technical standards, progress of implementing the project, and other conditions agreed upon in the project contract.

Article 63. Ensuring the Implementation of Land Use Rights

The purpose of land use for the project shall not change throughout the entire term of the project contract, including in cases where the lender exercises the right to take over the project in accordance with Article 42 of this Decree.

Article 64. Ensuring Foreign Currency Balance

1. Investors and project enterprises may purchase foreign currency from credit organizations authorized to operate foreign exchange transactions to meet the needs for current transactions, capital transactions, and other transactions, or to transfer capital, profits, and proceeds from investment abroad in accordance with the laws on foreign exchange management.

2. Based on the orientation of socio-economic development, foreign exchange management policies, the ability to balance foreign currencies during each period, and the objectives and nature of the project, ministries, sectors, provincial People's Committees shall coordinate with the State Bank of Vietnam to submit to the Prime Minister for decision on ensuring the availability of foreign currency requirements for investment projects under the investment policy approval authority of the National Assembly and the Prime Minister, and other important infrastructure development projects.

Article 65. Ensuring the Provision of Public Services

1. Investors and project enterprises may use land, roads, and other auxiliary facilities to implement the project in accordance with the law.
legal regulations.

2. In cases of scarcity of public services or restrictions on the users of public facilities, investors and project enterprises shall be given priority in providing such services or obtaining the right to use public facilities to implement the project.

3. Competent state agencies shall be responsible for assisting investors and project enterprises in completing necessary procedures to obtain priority in using public services and facilities.

Article 66. Ensuring Property Ownership Rights

1. The lawful property of investors shall not be nationalized or confiscated through administrative measures.

2. In cases where the State purchases or requisitions property for reasons of national defense, security, or national interest, emergency situations, or disaster prevention and control, investors shall be compensated according to the provisions of the investment law, the law on purchasing and requisitioning property, and the conditions agreed upon in the project contract.

Article 67. Dispute Resolution

1. Disputes between competent state agencies and investors or project enterprises, and disputes between project enterprises and participating economic organizations 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 organizations or Vietnamese courts in accordance with Vietnamese law, except for the cases specified in Clause 2 and Clause 3 of this Article.

2. Disputes between competent state agencies and foreign investors or project enterprises established by foreign investors in accordance with Article 38 of this Decree during the implementation of the project contract and guarantee contracts as stipulated in Article 61 of this Decree shall be resolved through arbitration organizations or Vietnamese courts or an arbitral tribunal agreed upon by the parties.

3. Disputes between project enterprises and foreign organizations or individuals or Vietnamese economic organizations, and disputes between investors shall be resolved in accordance with the investment law.

4. Disputes resolved by arbitration in accordance with the project contract and related contracts are commercial disputes. Foreign arbitral awards shall be recognized and enforced in accordance with the law on the recognition and enforcement of foreign arbitral awards.

 

Chapter X

STATE MANAGEMENT RESPONSIBILITIES

ON INVESTMENT IN THE FORM OF PUBLIC-PRIVATE PARTNERSHIP

Article 68. Responsibilities of the Ministry of Planning and Investment

1. Assist the Government in uniformly managing investment activities under the PPP form throughout the country.

2. Take the lead in guiding necessary contents to ensure the implementation of this Decree and other issues within the authority prescribed in this Decree.

3. Review and submit to the Prime Minister for consideration and decision on other types of contracts proposed by ministries, sectors, and provincial People's Committees.

4. Take the lead and coordinate with the Ministry of Finance to review the sources of capital and the ability to balance capital for the public investment portion participating in project implementation within the scope of authority; compile the plan for the public investment portion in PPP projects into the medium-term and annual public investment plans.

5. Participate in providing opinions on issues within its functions and powers upon request from ministries, sectors, and provincial People's Committees.

6. Take the lead and coordinate with ministries, sectors, and provincial People's Committees to examine proposals for applying other forms of investment guarantees not provided for in this Decree.

7. Take the lead and coordinate with ministries, sectors, and provincial People's Committees to supervise, inspect, audit, and compile and evaluate the situation of project implementation nationwide.

8. Develop and manage the information system and national database on investment under the PPP form.

9. Organize training and enhance capacity for implementing PPP investment projects.

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

Article 69. Responsibilities of the Ministry of Finance

1. Take the lead and coordinate with relevant ministries, sectors to guide the use of preparation costs and project implementation costs of ministries, sectors, and provincial People's Committees; management and utilization mechanisms for preparatory investment support funds; determine the value of state assets participating in PPP projects; implement the state's portion in PPP projects; financial plans for projects; final accounts of construction projects and other related issues within the authority prescribed in this Decree.

2. Guide the planning for the capital paid to investors using regular expenditure funds and revenue from public service provision activities.
3. Participate in providing opinions on investment guarantee measures and investment incentives for projects.

4. Participate in providing opinions on issues within its functions and powers upon request from ministries, sectors, and provincial People's Committees.

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

Article 70. Responsibilities of the Ministry of Justice

1. Provide legal opinions on project contracts, government guarantees, and other documents related to projects signed by state agencies according to the provisions of the law on providing legal opinions.

2. Participate in negotiations on issues related to applicable laws, dispute resolution, government guarantees, and other legal issues of project contracts and related contracts upon request from ministries, sectors, and provincial People's Committees.

3. Perform other tasks and exercise other powers as prescribed by law.
Article 71. Responsibilities of the State Bank of Vietnam

1. Coordinate with ministries, sectors, and provincial People's Committees to submit to the Prime Minister for decisions on ensuring foreign currency requirements.

2. Participate in providing opinions on issues within its functions and powers upon request from ministries, sectors, and provincial People's Committees.

1. Coordinate with ministries, sectors, provincial People's Committees to submit to the Prime Minister for a decision on ensuring foreign currency requirements.

2. Participate in opinions on issues within their functions and authorities at the request of ministries, sectors, provincial People's Committees.

1. Coordinate with ministries, sectors, and provincial People's Committees to submit to the Prime Minister for decisions on ensuring foreign currency requirements.

Article 72. Responsibilities of the Ministry of Construction

1. Take the lead in guiding the implementation of regulations on supervision, quality management of construction projects and investment projects, and cost standards for project management units.

2. Participate in opinions on issues within their functions and authorities at the request of ministries, sectors, provincial People's Committees.

1. Coordinate with ministries, sectors, and provincial People's Committees to submit to the Prime Minister for decisions on ensuring foreign currency requirements.

Article 73. Responsibilities of ministries and ministerial-level agencies

1. Implement state management over investment under the PPP form within their respective fields of management.

2. Take the lead and coordinate with the Ministry of Finance to issue profit frameworks for PPP projects under their respective sectors' jurisdiction.

3. Develop, announce, and implement projects within their respective jurisdictions.

4. Ensure compliance with legal provisions regarding the contents of feasibility studies approved and project contracts signed; bear legal responsibility for the contents of project contracts signed.

5. Take the lead in guiding the implementation of regulations assigned in this Decree.

6. Participate in providing opinions on issues within their functions and authorities at the request of ministries, sectors, and provincial People's Committees.

7. Summarize and evaluate the implementation status of projects within their respective sectors.

8. Submit to the Prime Minister for consideration and decision on implementing other forms of investment guarantees and mechanisms to attract private investment to provide public services in public institutions not yet specified in this Decree.

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

Article 74. Responsibilities of Provincial People's Committees

1. Implement state management over investment under the PPP form within their respective localities according to the delegation of the Government.

2. Develop, announce, and implement projects within their respective jurisdictions.

3. Ensure compliance with legal provisions regarding the contents of feasibility studies approved and project contracts signed; bear legal responsibility for the contents of project contracts signed.

4. Provide opinions on issues within their functions and authorities at the request of ministries, sectors, and provincial People's Committees.

5. Summarize and evaluate the implementation status of projects within their respective localities.

6. Take the lead and coordinate with competent state agencies to organize land clearance for project implementation.

7. Submit to the Prime Minister for consideration and decision on implementing other forms of investment guarantees not yet specified in this Decree.

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

 

Chapter XI

IMPLEMENTING PROVISIONS

Article 75. Effective Date

1. This Decree takes effect from June 19, 2018.

2. This Decree replaces Government Decree No. 15/2015/NĐ-CP dated February 14, 2015, on investment under the Public-Private Partnership form.

3. Abolish the provisions on investment policies and decisions on PPP projects in Articles 10, 17, 19, 24, and 33 of Government Decree No. 136/2015/NĐ-CP dated December 25, 2015, guiding the implementation of certain provisions of the Law on Public Investment.

Article 76. Transitional Provisions

1. Projects that have been approved by competent authorities for investment policies (by separate documents or in planning approval decisions), or approved for project proposals, or agreed to use state investment capital before the effective date of this Decree shall not need to go through the procedures for deciding on investment policies as stipulated in this Decree.

2. Feasibility study reports approved before the effective date of this Decree do not need to be re-approved according to this Decree.

3. Projects that have had investor selection results approved or investment agreements signed before the effective date of this Decree but have not yet completed investment registration certificate procedures shall not need to go through these procedures. The parties shall negotiate and sign contracts in accordance with this Decree.

4. Project contracts signed or investment agreements signed before the effective date of this Decree do not need to renegotiate.

5. Projects that have obtained investment registration certificates before the effective date of this Decree may continue to be implemented according to the provisions of the investment registration certificate. In cases where adjustments to the project are needed, the parties shall adjust the project contract in accordance with this Decree and relevant laws without having to go through the procedures for adjusting the investment registration certificate. If the adjusted project contract has different contents from the investment registration certificate issued before the effective date of this Decree, the parties shall proceed according to the adjusted project contract and bear legal responsibility for those adjustments.

6. Project contracts officially signed before the effective date of this Decree may continue to be implemented according to the provisions of the project contract.

7. Projects that have commitments or approvals in writing from the Prime Minister or ministries, sectors, or provincial People's Committees on incentives, investment guarantees, and other related contents to project implementation before the effective date of this Decree may continue to be implemented according to those documents.

8. Other cases shall be handled according to the Prime Minister's decision based on the proposal of the Ministry of Planning and Investment.

Article 77. Implementation organization

The Ministers, Heads of ministerial-level agencies, Heads of government-affiliated agencies, Chairpersons of provincial People's Committees under the central government shall be responsible for guiding and implementing this Decree within their respective functions and powers. In cases where specific contents have not been provided for in this Decree, they shall report to the Prime Minister for consideration and decision.
- Office of the President;