Circular No. 15/2016/TT-BKHDT dated September 29, 2016 of the Ministry of Planning and Investment guiding the pre-qualification document, bidding documents on selection of investors carrying public-private partnership projects

CIRCULAR

Guiding the making of prequalification invitation dossiers and bidding dossiers for selection of investors to implement investment projects in the form of public-private partnership[1]

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

Pursuant to the Government’s Decree No. 15/2015/ND-CP of February 14, 2015, on investment in the form of public-private partnership;

Pursuant to the Government’s Decree No. 30/2015/ND-CP of March 17, 2015, detailing a number of articles of the Bidding Law regarding selection of investors;

Pursuant to the Government’s Decree No. 116/2008/ND-CP of November 14, 2008, 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 making of prequalification invitation dossiers and bidding dossiers for selection of investors to implement investment projects in the form of public-private partnership.

Article 1. Scope of regulation

This Circular guides the making of prequalification invitation dossiers and bidding dossiers for investment projects in the form of public-private partnership (PPP) falling within the scope of regulation prescribed in Clause 3, Article 1 of Bidding Law No. 43/2013/QH13 as follows:

1. The form of prequalification invitation dossier for selection of investors to implement investment projects in the form of PPP (Form No. 01) applies to national important projects group A and group B in the form of PPP.

2. The form of bidding dossier for selection of investors to implement investment projects in the form of PPP (Form No. 02) applies to national important projects of groups A and B in the form of PPP, of which the prequalification has been carried out.

Article 2. Subjects of application

This Circular applies to agencies, organizations and individuals engaged or involved in the selection of investors to implement investment projects in the form of PPP within the scope of regulation prescribed in Article 1 of this Circular.

Article 3. Application of the forms of prequalification invitation dossier and bidding dossier for selection of investors to implement investment projects in the form of PPP

1. Based on the size, characteristics and field of each project, a competent person or bid solicitor may supplement appropriate requirements on the basis of guaranteeing the principles of competitiveness, fairness, transparency and economic efficiency in the course of making, appraisal and approval of prequalification invitation dossiers and bidding dossiers and ensuring compliance with the bidding law; and shall refrain from imposing conditions to restrict the participation of any investor or create advantages for one or more than one investor, thus causing unfair competition.

2. For a project without prequalification prescribed in Clause 2, Article 87 of the Government’s Decree No. 30/2015/ND-CP of March 17, 2015, the bidding dossier shall be made according to modified Form No. 02 with supplemented contents on requirements on, and appraisal of, investor capacity and experience as provided in Form No. 01.

3. For a group-C project, the bidding dossier shall be made according to Form No. 02 with supplemented contents on requirements on, and appraisal of, investor capacity and experience as provided in Form No. 01. In case the competent person decides to apply prequalification, the prequalification invitation dossier and bidding dossier shall be made according to Form No. 01 and Form No. 02.

4. For a project eligible for contractor appointment prescribed at Point a, Clause 3, Article 9 of Decree No. 30/2015/ND-CP, the dossier of requirements shall be made according to Form No. 02.

5. For a project eligible for contractor appointment prescribed at Points b and c, Clause 3, Article 9 of Decree No. 30/2015/ND-CP, the dossier of requirements shall be made according to Form No. 02 with supplemented contents on requirements on, and appraisal of, investor capacity and experience as provided in Form No. 01.

6. In these forms, italic words are for instructive and illustrative purposes which may be specified based on the size, characteristics and field of each project.

Article 4. Contracts

Based on the general guidance on contents of project contract under regulations on investment in the form of PPP and on the size, characteristics and field of each project, a competent person or bid solicitor shall make a draft contract and enclose it with the bidding dossier. The draft contract must include detailed provisions on articles and clauses of the contract as a basis for the parties to conduct preliminary negotiation or negotiation, finalize and sign an investment agreement, sign and perform the contract, ensuring clear division of the contracting parties’ responsibility, risks, lawful rights and interests in accordance with current law.

Article 5. Organization of implementation

1. This Circular takes effect on November 15, 2016. This Circular replaces the provisions on the selection of investors in the Ministry of Planning and Investment’s Circular No. 03/2011/TT-BKHDT of January 27, 2011, guiding the implementation of a number of provisions of the Government’s Decree No. 108/2009/ND-CP of November 27, 2009, on investment in the forms of build-operate-transfer (BOT) contract, build-transfer-operate (BTO) contract and build-transfer (BT) contract.

2. In the course of implementation of this Circular, based on the requirements and characteristics of sectors and fields, if there are contents requiring detailed guidance, ministries and sectors shall coordinate with the Ministry of Planning and Investment for timely consideration and guidance.

3. Ministers, ministerial-level agencies, government-attached agencies, other central agencies, People’s Committees at all levels, and related organizations and individuals shall implement this Circular and report any problems arising in the course of implementation to the Ministry of Planning and Investment for timely guidance.-

Minister of Planning and Investment
NGUYEN CHI DUNG

* The forms mentioned in this Circular are not translated.