Circular No. 95/2024/TT-BTC on the management and use of revenues and expenditures related to the process of selecting investors for implementing public-private partnership (PPP) projects.

CIRCULAR

Regulations on management and use of revenues and expenditures related to the process of selecting investors to implement public-private partnership investment projects

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Pursuant to Decree No. 163/2016/NĐ-CP dated December 21, 2016, issued by the Government, detailing the implementation of certain provisions of the State Budget Law;

Pursuant to Decree No. 10/2021/NĐ-CP dated February 9, 2021 of the Government on the management of construction investment costs;

Pursuant to Decree No. 15/2021/NĐ-CP dated March 3, 2021 of the Government detailing certain contents regarding project management in construction investment;

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

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

Pursuant to Decree No. 32/2019/NĐ-CP dated April 10, 2019 of the Government stipulating the assignment of tasks, ordering goods or services, or tendering for the provision of public products and services using state budget funds from regular expenditure;

Pursuant to Decree No. 99/2021/NĐ-CP dated November 11, 2021 of the Government on management, payment, and settlement of projects using state capital;

Pursuant to Decree No. 35/2023/NĐ-CP dated June 20, 2023 of the Government amending and supplementing certain articles of decrees under the Ministry of Construction's jurisdiction;

Pursuant to Decree No. 14/2023/NĐ-CP dated April 20, 2023, issued by the Government, stipulating the functions, tasks, powers, and organizational structure of the Ministry of Finance;

At the proposal of the Director of the Investment Department;

The Minister of Finance issues this Circular regulating the management and use of revenues and expenditures related to the process of selecting investors to implement public-private partnership investment projects.

PART I

GENERAL PROVISIONS

Article 1. Scope of Regulation

This Circular regulates the management and use of revenues and expenditures related to the process of selecting investors to implement public-private partnership investment projects (hereinafter referred to as PPP projects).

Article 2. Applicability

Organizations and individuals participating in or related to the activity of selecting investors to implement PPP projects as stipulated in Article 1 of this Circular.

Chapter II

MANAGEMENT OF REVENUES AND EXPENDITURES IN THE SELECTION OF INVESTORS TO IMPLEMENT PPP PROJECTS

Article 3. Principles of revenue and expenditure management during the process of selecting investors to implement PPP projects

1. Revenues and expenditures in the selection of investors to implement PPP projects must be in accordance with their intended purposes and the regulations of the State and laws.

2. The preparation of budgets, payments, and settlements of revenues and expenditures during the process of selecting investors to implement PPP projects shall be carried out in accordance with the laws on the management, use, payment, and settlement of state capital investment funds and regular expenses from the state budget.

Article 4. Expenditures in the selection of investors to implement PPP projects

The items of expenditure and the norms of these expenditures in the selection of investors to implement PPP projects as prescribed in Article 32 and point e, Clause 2, Article 73 of Decree No. 35/2021/NĐ-CP dated March 29, 2021 of the Government detailing and guiding the implementation of the Law on Investment under the Public-Private Partnership Model (hereinafter referred to as Decree No. 35/2021/NĐ-CP).

Article 5. Revenues in the selection of investors

1. Revenues from the sale of tender documents and other revenues (if any), after fulfilling tax obligations, shall be deposited into the state budget in accordance with the laws on the state budget.

2. The selected investor shall be responsible for reimbursing the expenditure costs as stipulated in Article 4 of this Circular and depositing them into the state budget in accordance with the laws on the state budget within fifteen days from the date the PPP contract becomes effective.

Article 6. Sources of funds for selecting investors to implement PPP projects

1. The sources of funds for expenses stipulated in Clauses 2 and 3 of Article 32 of Decree No. 35/2021/NĐ-CP shall be allocated from the capital plan for preparing PPP projects from state budget investment capital, regular expenditures from the state budget of the competent authority, and shall be included in the total investment cost of the PPP project.

2. The source of funds for resolving investor complaints submitted according to Point e, Clause 2 of Article 73 of Decree No. 35/2021/NĐ-CP shall be borne by the investor who submits the complaint.

Article 7. Management and use of funds in tendering to select investors to implement PPP projects

1. In cases where the tenderer is the Project Management Board: management, use, and settlement of funds for tendering to select investors to implement PPP projects shall be carried out in accordance with Circular No. 70/2024/TT-BTC dated October 1, 2024 of the Ministry of Finance on managing and using revenues from consulting and project management activities of project sponsors and project management boards funded by the state budget.

2. In cases where specialized units or subordinate units of the competent authority hire consultants to select investors to perform one or all of the tasks stipulated in Clauses 2, 3, and 4 of Article 32 of Decree No. 35/2021/NĐ-CP, the consultant hiring fees shall be implemented as follows:

a) The total expenditure in selecting investors including taxes (including costs incurred by the tenderer itself) shall not exceed the approved budget estimate for the consultant hiring work.

b) The payment value to the consultant unit shall be carried out according to the Contract between the Tenderer and the Consultant Unit.

c) The management, use, payment, and settlement of funds specified in Point b of this clause shall be carried out in accordance with current regulations on the management, payment, and settlement of public investment funds.

3. In cases where specialized units or subordinate units of the competent authority have sufficient capacity and are approved by the competent authority to self-perform part or all of the tasks stipulated in Clauses 2, 3, and 4 of Article 32 of Decree No. 35/2021/NĐ-CP: the management and use of self-organized funds for tendering to select investors by the assigned unit shall be carried out according to the financial mechanism approved by the competent authority.

Article 8. Expenses for resolving investor complaints about the results of selecting investors to implement PPP projects

1. In cases where investors submit complaints about the results of selecting investors, which are resolved by authorized persons, investors are responsible for submitting complaint resolution expenses to the standing office assisting the Advisory Council according to Point e, Clause 2 of Article 73 of Decree No. 35/2021/NĐ-CP. During the complaint process, if the investor withdraws the complaint, the complaint resolution expenses already paid by the investor shall be handled as follows:

a) The investor will be refunded 50% of the amount paid if the Advisory Council has not been established or has been established but has not convened a meeting.

b) The investor will not be refunded the amount paid if the Advisory Council has convened a meeting. The remaining amount paid by the investor shall be deposited into the state budget within seven working days from the date the investor withdraws the complaint.

2. The standing office assisting the Advisory Council shall prepare and submit to the Chairman of the Advisory Council for approval a detailed budget for resolving complaints about the results of selecting investors for each case.

3. The budget approved by the Chairman of the Advisory Council under Clause 2 of this Article shall not exceed the amount of expenses submitted by the investor according to Clause 1 of this Article.

4. The Chairman of the Advisory Council shall decide on the allocation of expenses according to the approved budget for Advisory Council members, the standing office assisting the Advisory Council, and other expenses to resolve complaints. Payment for Advisory Council members resolving complaints who are civil servants or public officials shall be made in accordance with the law.

5. The standing office assisting the Advisory Council shall be responsible for resolving complaints according to the approved budget by the Chairman of the Advisory Council.

6. Upon completion of resolving complaints, the Chairman of the Advisory Council shall confirm the actual expenses incurred. Any surplus over the amount received from the investor's complaint submission (if any) shall be confirmed by the Chairman of the Advisory Council, and the standing office assisting the Advisory Council shall be responsible for refunding the investor within seven days from the date the Chairman of the Advisory Council confirms the actual expenses incurred.

7. In cases where the investor's complaint is concluded to be correct, the resolution document regarding the selection result must clearly state that the investor who submitted the complaint will receive back the complaint resolution expenses submitted. The standing office assisting the Advisory Council shall issue a document requesting the tenderer to refund the investor the amount equal to the money submitted by the investor minus the amount already refunded according to Clause 6 of this Article (if applicable).

8. The source of funds to refund investors according to the decision on resolving complaints about the selection results when the investor's complaint is concluded to be correct by the competent authority is as follows:

a) In cases where the tenderer is an administrative unit or a public service organization: the source of funds to refund investors shall be allocated from the regular budget of the unit.

b) In cases where the tenderer is not an administrative unit or a public service organization: the source of funds to refund investors shall be allocated from the operating funds of the unit.

Organizations or individuals found to be in violation according to the decision on resolving complaints about the selection results of the competent authority shall be responsible for compensating the tenderer in accordance with the law.

Chapter III

IMPLEMENTATION

Article 9. Responsibilities of Relevant Authorities

1. Responsibilities of the competent authority, the agency or unit entrusted to be the tender inviter

a) Shall be responsible for managing and using revenues and expenditures during the selection process of investors in accordance with the provisions of the law;

b) Shall implement the preparation of budget estimates of costs during the investor selection process and prepare a final account report on cost usage, submit to the competent authority for review and approval;

c) Shall refund the amounts spent by the Advisory Board in cases where the investor's recommendations are determined to be correct.

2. Responsibilities of the payment agency

Shall be responsible for controlling and paying costs during the investor selection process in accordance with the regulations on state budget payments, laws on public investment, current financial management systems of the State, and specific provisions of this Circular.

3. Responsibilities of the Chairman of the Advisory Board and the permanent working body of the Advisory Board

a) The Chairman of the Advisory Board shall be responsible for managing and using the expenses paid by the investor in accordance with Clause 1, Article 8 of this Circular, ensuring efficiency, economy, and compliance with the law;

b) The permanent working body of the Advisory Board shall be responsible for receiving expenses paid by the investor, preparing and submitting to the Chairman of the Advisory Board for approval the budget estimate of expenses and the Advisory Board's operational expenses according to the approved budget, and refunding the excess revenue over expenditure to the investor who made the recommendation in accordance with Article 8 of this Circular.

4. Responsibilities of Ministries, central agencies, other agencies, and localities

Shall inspect the management and use of revenues and expenditures during the investor selection process for PPP projects and take measures to handle violations in management and use of revenues and expenditures according to the law against individuals and units involved.

Article 10. Responsibilities of Investors

The selected investor shall be responsible for paying the state budget the costs incurred in the investor selection process that have been allocated from public investment funds and regular expenditures as stipulated in Clause 1, Article 6 of this Circular in accordance with the state budget law.

Article 11. Implementation Provisions

1. This Circular takes effect from February 15, 2025.

2. Repeal Circular No. 08/2022/TT-BTC dated February 9, 2022, issued by the Minister of Finance, which provides for the management and use of revenues and expenditures during the investor selection process.

Management and use of revenues and expenditures during the investor selection process for projects required to organize bidding in accordance with industry and sector management laws, and for projects involving land use, shall be implemented in accordance with Decree No. 23/2024/NĐ-CP dated February 27, 2024, of the Government detailing certain provisions and implementing measures of the Law on Bidding regarding the selection of investors for projects required to organize bidding in accordance with industry and sector management laws, and Decree No. 115/2024/NĐ-CP dated September 16, 2024, of the Government detailing certain provisions and implementing measures of the Law on Bidding regarding the selection of investors for projects involving land use.

3. In cases where the budget estimate of costs for selecting investors for PPP projects has been approved by the competent authority before the effective date of this Circular, the payment and settlement of costs for selecting investors shall be carried out in accordance with this Circular without the need for re-approval of the budget estimate.

4. In cases where the referenced documents in this Circular are amended, supplemented, or replaced, they shall be implemented in accordance with the amended, supplemented, or replacement documents.

5. Ministries, central agencies, other agencies, People's Committees at all levels, and related organizations and individuals shall be responsible for implementing this Circular./.