Circular 09/2021/TT-BKHDT selection of investors to implement investment projects in the form of public-private partnership and land-using investment projects

CIRCULAR

Guiding the selection of investors to implement investment projects in the form of public-private partnership and land-using investment projects^[1]

Pursuant to the November 26, 2013 Bidding Law;

Pursuant to the June 17, 2020 Law on Investment;

Pursuant to the June 18, 2020 Law on Investment in the Form of Public-Private Partnership;

Pursuant to the Government’s Decree No. 31/2021/ND-CP of March 26, 2021, detailing and guiding the implementation of a number of articles of the Law on Investment;

Pursuant to the Government’s Decree No. 35/2021/ND-CP of March 29, 2021, detailing and guiding the implementation of the Law on Investment in the Form of Public-Private Partnership;

Pursuant to the Government’s Decree No. 28/2021/ND-CP of March 26, 2021, providing the financial management mechanism applicable to investment projects in the form of public-private partnership;

Pursuant to the Government’s Decree No. 25/2020/ND-CP of February 28, 2020, detailing the implementation of a number of articles of the Bidding Law regarding investor selection;

Pursuant to the Government’s Decree No. 86/2017/ND-CP of July 25, 2017, defining the functions, tasks, powers and organizational structure of the Ministry of Planning and Investment;

At the proposal of the Director of the Public Procurement Agency;

The Minister of Planning and Investment promulgates the Circular guiding the selection of investors to implement investment projects in the form of public-private partnership and land-using investment projects.

Article 1. Scope of regulation

This Circular details and guides the implementation of a number of provisions of the Government’s Decree No. 35/2021/ND-CP of March 29, 2021, detailing and guiding the implementation of the Law on Investment in the Form of Public-Private Partnership (below referred to as Decree No. 35/2021/ND-CP) and the Government’s Decree No. 25/2020/ND-CP of February 28, 2020, detailing the implementation of a number of articles of the Bidding Law regarding investor selection (below referred to as Decree No. 25/2020/ND-CP), which was amended and supplemented under Article 89 of Decree No. 35/2021/ND-CP and Article 108 of the Government’s Decree No. 31/2021/ND-CP of March 26, 2021, detailing and guiding a number of articles of the Law on Investment (below referred to as Decree No. 31/2021/ND-CP),
including:

1. Provisions on preparation of dossiers of invitation to prequalification, dossiers of invitation to negotiation and bidding dossiers for public-private partnership (PPP) projects.

2. Provisions concerning the setting of preliminary requirements on capacity and experience, bidding dossiers and dossiers of requirements for land-using investment projects.

3. Other provisions relevant to the implementation of land-using investment projects.

Article 2. Subjects of application

This Circular applies to agencies, organizations and individuals engaged or involved in the selection of investors to implement PPP projects and land-using investment projects.

Article 3. Preparation of dossiers of invitation to prequalification, dossiers of invitation to negotiation and bidding dossiers for PPP projects

1. Dossiers of invitation to prequalification shall be prepared according to the form provided in Appendix I to this Circular.

2. Dossiers of invitation to negotiation shall be prepared according to the form provided in Appendix II to this Circular.

3. Bidding dossiers for projects subject to prequalification shall be prepared according to the form provided in Appendix III to this Circular.

4. Bidding dossiers for projects not subject to prequalification and projects subject to the form of competitive negotiation under Clause 1, Article 38 of the Law on Investment in the Form of Public-Private Partnership (below referred to as the PPP Law) shall be prepared according to the form provided in Appendix IV to this Circular.

5. Bidding dossiers for projects subject to the form of competitive negotiation under Clauses 2 and 3, Article 38 of the PPP Law shall be prepared according to the form provided in Appendix V to this Circular.

6. For projects subject to the form of investor appointment under Point a, Clause 1, Article 39 of the PPP Law, bidding dossiers shall be prepared on the basis of modified contents of the dossier form provided in Appendix IV to this Circular, provided that the modified contents comply with the PPP Law, Decree No. 35/2021/ND-CP and relevant regulations. Bidding dossiers may not have contents on investor comparison and ranking.

Article 4. Setting of preliminary requirements on capacity and experience, bidding dossiers and dossiers of requirements for land-using investment projects

1. Notices of invitation for expression of interest, and preliminary requirements on capacity and experience shall be prepared according to the form provided in Appendix VI to this Circular. Requirements on capacity and experience may only set contents aimed solely at selecting investors that meet preliminary requirements on capacity and experience, and may not set out any conditions to restrict the participation of investors or to bring about advantages for one or several investor(s), thus leading to unfair competition.

2. Bidding dossiers shall be prepared according to the form provided in Appendix VII to this Circular, in which the minimum level of payment into the state budget (m₃) shall be determined under Point k, Clause 2, Article 47 of Decree No. 25/2020/ND-CP and the guidance provided in Appendix VIII to this Circular.

3. For projects subject to the form of contractor appointment under Clause 3, Article 10 of Decree No. 25/2020/ND-CP, dossiers of requirements shall be prepared on the basis of modified contents of the dossier form provided in Appendix VII to this Circular, provided that the modified contents comply with the Bidding Law, Decree No. 25/2020/ND-CP, Article 108 of Decree No. 31/2021/ND-CP, Article 89 of Decree No. 35/2021/ND-CP, and relevant regulations. Dossiers of requirements may not have contents on investor comparison and ranking.

Article 5. Principles of application and modification of dossier forms

1. In Appendices I, II, III, IV, V, VI and VII to this Circular, the contents in Italic letters are for the purposes of instruction and demonstration and shall be concretized according to size, characteristics, field and specific conditions (if any) of each project.

2. In addition to criteria for evaluation of capacity and experience of investors provided in Appendices I, II, IV and VII to this Circular, other evaluation criteria shall be added on the following principles:

a/ Being suitable to size, characteristics, field and specific conditions (if any) of each project;

b/ Being not contrary to law; neither restricting the participation of investors nor bringing about advantages for one or several investor(s), thus leading to unfair competition.

3. In case of addition of evaluation criteria under Clause 2 of this Article, a request for approval of a dossier of invitation to prequalification, dossier of invitation to negotiation, bidding dossier, or dossier of requirements must comprise detailed explanations about the added criteria and reasons for proposing the addition for a competent authority’s consideration and decision.

Article 6. Implementation of land-using investment projects

1. Land-using investment projects specified in Clause 1, Article 11 of Decree No. 25/2020/ND-CP shall be identified under the following provisions:

a/ Urban centers shall be identified under Clause 1, Section VII of Appendix IX to the Government’s Decree No. 15/2021/ND-CP of March 3, 2021, detailing a number of provisions on management of construction investment projects;

b/ Commercial houses shall be identified under Clause 4, Article 3 of Housing Law No. 65/2014/QH13 of November 25, 2014;

c/ Head offices and working offices, including officetel buildings, shall be identified under Point h, Clause 2, Section I of Appendix I to the Government’s Decree No. 06/2021/ND-CP of January 26, 2021, detailing a number of provisions on quality management, construction and maintenance of construction works (below referred to as Decree No. 06/2021/ND-CP);

d/ Commercial works, including trade centers, supermarkets, department stores, and shops; restaurants, and food-and-drink stalls shall be identified under Point e, Clause 2, Section I of Appendix I to Decree No. 06/2021/ND-CP;

dd/ Service works, including hotels, guesthouses and inns; resorts; accommodation villas and apartments, and other accommodation service establishments shall be identified under Point g, Clause 2, Section I of Appendix I to Decree No. 06/2021/ND-CP.

2. Preliminary requirements on capacity and experience of investors and announcement of lists of land-using investment projects, for projects subject to investment policy approval under Point a, Clause 1, Article 12 of Decree No. 25/2020/ND-CP, are provided as follows:

a/ For projects subject to the Prime Minister’s investment policy approval:

Provincial-level People’s Committees shall act as bidding organizers under Clause 8, Article 32 of Decree No. 31/2021/ND-CP. Based on project investment policy approval decisions, provincial-level People’s Committees shall assign provincial-level Departments of Planning and Investment to assume the prime responsibility for, and coordinate with related agencies in, determining preliminary requirements on capacity and experience of investors, then report them to provincial-level People’s Committees for approval before announcing lists of projects. For projects to be implemented in economic zones, provincial-level People’s Committees shall assign management boards of economic zones to determine and approve preliminary requirements on capacity and experience of investors before announcing lists of projects.

b/ For projects subject to investment policy approval by provincial-level People’s Committees:

Provincial-level Departments of Planning and Investment or management boards of economic zones (for projects to be implemented in economic zones) shall act as bidding organizers under Clause 6, Article 33 of Decree No. 31/2021/ND-CP. Based on project investment policy approval decisions, provincial-level Departments of Planning and Investment shall assume the prime responsibility for, and coordinate with related agencies in, determining preliminary requirements on capacity and experience of investors, then report them to provincial-level People’s Committees for approval before announcing lists of projects. For projects to be implemented in economic zones, management boards of economic zones shall determine and approve preliminary requirements on capacity and experience of investors before announcing lists of projects.

3. Evaluation of preliminary requirements on capacity and experience of investors shall be carried out under Article 13 of Decree No. 25/2020/ND-CP.

In case only one investor meets preliminary requirements on capacity and experience, such investor shall submit a dossier of request for investor approval under Clause 3, Article 29 of the Law on Investment, and Point a, Clause 2, Article 30 of Decree No. 31/2021/ND-CP without having to determine the minimum level of payment into the state budget under Clause 2, Article 4 of this Circular.

4. Project enterprises established by bid-winning investors to implement projects under Clause 5, Article 57 of Decree No. 25/2020/ND-CP may take over rights and obligations to implement investment projects as committed by the bid-winning investors in bid dossiers and must satisfy conditions specified by the enterprise, investment, construction, land, housing, and real estate business laws and relavant laws (if any).

Article 7. Transitional provisions

1. For land-using investment projects:

a/ If bidding dossiers and dossiers of requirements have been distributed under the Government’s Decree No. 30/2015/ND-CP of March 17, 2015, detailing the implementation of a number of articles of the Bidding Law regarding investor selection (below referred to as Decree No. 30/2015/ND-CP), and the Minister of Planning and Investment’s Circular No. 16/2016/TT-BKHDT of December 16, 2016, guiding the preparation of bidding dossiers and dossiers of requirements for selection of investors to implement land-using investment projects (below referred to as Circular No. 16/2016/TT-BKHDT), but, by the effective date of this Circular, no investor selection results are obtained, such dossiers may be based on for the evaluation of bid dossiers and dossiers of proposals;

b/ If dossiers of invitation to prequalification have been distributed before the effective date of Decree No. 25/2020/ND-CP, the investor selection shall continue to be carried out under Clause 3, Article 90 of Decree No. 25/2020/ND-CP. Contents of bidding dossiers and dossiers of requirements must comply with Decree No. 30/2015/ND-CP, the Circular guiding Decree No. 30/2015/ND-CP, and the land, housing, real estate business, investment, and construction laws effective by the time of approval of such dossiers;

c/ In case a list of projects announced on the Vietnam National E-Procurement System complies with Decree No. 25/2020/ND-CP and the Minister of Planning and Investment’s Circular No. 06/2020/TT-BKHDT of September 18, 2020, guiding the implementation of Decree No. 25/2020/ND-CP (below referred to as Circular No. 06/2020/TT-BKHDT), and there are two or more investors meeting preliminary requirements on capacity and experience but, by the effective date of this Circular, no bidding dossiers have been distributed, contents of such bidding dossiers must comply with Decree No. 25/2020/ND-CP (effective from April 20, 2020, to March 26, 2021), Circular No. 06/2020/TT-BKHDT, and the land, housing, real estate business, investment, and construction laws effective by the time of approval of bidding dossiers;

d/ If bidding dossiers and dossiers of requirements have been distributed under Decree No. 25/2020/ND-CP and Circular No. 06/2020/TT-BKHDT but, by the effective date of this Circular, no investor selection results are obtained, such dossiers may be based on for the evaluation of bid dossiers and dossiers of proposals.

dd/ Project contracts that are lawfully signed before the effective date of this Circular may continue to be performed under their clauses and terms. In case adjustment to an investment project has been approved, such project may be adjusted in accordance with the law on investment before the project contract is modified.

2. For PPP projects for which dossiers of invitation to prequalification, dossiers of invitation to negotiation and bidding dossiers have been distributed in accordance with the PPP Law and Decree No. 35/2021/ND-CP, such dossiers may be based on for the evaluation of dossiers for participation in prequalification, dossiers for participation in negotiation and bid dossiers. The subsequent order and procedures shall be carried out in accordance with the PPP Law, Decree No. 35/2021/ND-CP and this Circular.

Article 8. Implementation provisions   

1. To add Forms A.I.5a and A.II.5a provided in Appendix IX to this Circular to the List of forms issued together with the Minister of Planning and Investment’s Circular No. 03/2021/TT-BKHDT of April 3, 2021, providing forms of documents and reports related to investment activities in Vietnam, Vietnam’s offshore investment and investment promotion,.

2. Pending the issuance of detail provisions on projects subject to bidding in accordance with specialized laws and regulations on mobilization of social resources under Clause 3, Article 16 of Decree No. 25/2020/ND-CP by ministries, ministerial-level agencies and government-attached agencies or pending their submission of such provisions to the Prime Minister for issuance, dossiers for bidding shall be prepared on the basis of modification of the model dossiers provided in Appendices VI and VII to this Circular in compliance with the bidding law, specialized laws and regulations on mobilization of social resources, ensuring competitiveness, fairness, transparency and economic efficiency.

3. Lists of land-using investment projects and projects subject to bidding in accordance with specialized laws and regulations on mobilization of social resources shall be posted on the Vietnam National E-Procurement System within 7 working days after they are approved (for projects not subject to investment policy approval in accordance with the law on investment) or after preliminary requirements on capacity and experience are approved (for projects subject to investment policy approval in accordance with the law on investment).

4. The posting of information on bidding and investor selection on the Vietnam National E-Procurement System shall be carried out under relevant provisions of Articles 7, 8, 9, 10 and 13 of Circular No. 06/2020/TT-BKHDT until the Ministry of Planning and Investment issues guiding documents.

5. This Circular takes effect on January 1, 2022, and replaces Circular No. 06/2020/TT-BKHDT, except Clause 4 of this Article.

6. Ministries, ministerial-level agencies, government-attached agencies, other central agencies, provincial-level People’s Committees, and related organizations and individuals shall implement this Circular, and report any problems arising in the course of implementation of this Circular to the Ministry of Planning and Investment for further guidance.-

Minister of Planning and Investment
NGUYEN CHI DUNG

 * The appendices to this Circular are not translated.