Circular 10/2024/TT-BKHDT amend Circular 09/2021/TT-BKHDT and 10/2022/TT-BKHDT

CIRCULAR

Amending a number of articles of the Minister of Planning and Investment’s Circular No. 09/2021/TT-BKHDT of November 16, 2021, guiding the selection of investors to implement investment projects in the form of public-private partnership and land-using investment projects, and the Minister of Planning and Investment’s Circular No. 10/2022/TT-BKHDT of June 15, 2022, providing in detail the provision and posting of information and selection of investors on the Vietnam National E-Procurement System^[1]

Pursuant to the November 26, 2013 Bidding Law;

Pursuant to the June 17, 2020 Law on Investment;

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. 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. 23/2024/ND-CP of February 27, 2024, detailing a number of articles of, and measures to implement, the Bidding Law regarding the selection of investors to implement projects subject to bidding in accordance with specialized laws;

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 amending a number of articles of the Minister of Planning and Investment’s Circular No. 09/2021/TT-BKHDT of November 16, 2021, guiding the selection of investors to implement investment projects in the form of public-private partnership and land-using investment projects, and the Minister of Planning and Investment’s Circular No. 10/2022/TT-BKHDT of June 15, 2022, providing in detail the provision and posting of information and selection of investors on the Vietnam National E-Procurement System.

Article 1. To amend a number of articles of the Minister of Planning and Investment’s Circular No. 09/2021/TT-BKHDT of November 16, 2021, guiding the selection of investors to implement investment projects in the form of public-private partnership and land-using investment projects

1. To annul Clause 1, Article 6, and amend Article 6 as follows:

“1. 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 projects’ 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 projects’ 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.

2. The preliminary evaluation of 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 specified in Clause 3, Article 29 of the Law on Investment, and at 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.

3. 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 laws on enterprises, investment, construction, land, housing, and real estate business, and relevant laws (if any).”.

2. To annul Clause 2, Article 8.

3. To amend Clause 3, Article 8 as follows:

“3. Lists of land-using investment projects 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 of investors are approved (for projects subject to investment policy approval in accordance with the law on investment).”.

Article 2. To amend a number of articles of the Minister of Planning and Investment’s Circular No. 10/2022/TT-BKHDT of June 15, 2022, providing in detail the provision and posting of information and selection of investors on the Vietnam National E-Procurement System

1. To annul the phrase “projects subject to bidding in accordance with specialized laws and regulations on mobilization of social resources” at Points a and b, Clause 1, Article 1.

2. To annul the phrases “dossier for project implementation registration” and “preliminary requirements on capacity and experience” in Articles 10 and 20.

3. To annul the phrase “units assigned the evaluation task by competent authorities, for projects subject to bidding in accordance with specialized laws and regulations on mobilization of social resources” in Article 20, and the phrase “units tasked by competent authorities, for projects subject to bidding in accordance with specialized laws and regulations on mobilization of social resources” in Article 27.

4. To amend Article 21 as follows:

“Article 21. Clarification, modification, replacement or withdrawal of e-dossiers for expression of interest, e-dossiers for prequalification participation, or e-dossiers for project implementation registration

1. Clarification of e-dossiers for expression of interest, e-dossiers for prequalification participation, or e-dossiers for project implementation registration:

a/ Investors shall:

- Clarify e-dossiers for expression of interest, e-dossiers for prequalification participation, or e-dossiers for project implementation registration at the request of bid solicitors, project preparation units or agencies/units in charge of receiving PPP project proposal dossiers, provincial-level Departments of Planning and Investment or Economic Zone Management Boards, for land-using investment projects;

- Clarify by themselves their dossiers and provide additional documents to prove their legal status, capacity and experience when finding that e-dossiers for expression of interest, e-dossiers for prequalification participation, or e-dossiers for project implementation registration lack documents on their eligibility, capacity and experience that have not yet submitted together with the dossiers.

b/ The clarification of e-dossiers for expression of interest and e-dossiers for prequalification participation for PPP projects or the clarification of e-dossiers for project implementation registration for land-using investment projects shall be carried out on the System. All requests for clarification and documents on clarification of investors shall be made on the System.

2. Modification, replacement or withdrawal of e-dossiers for expression of interest, e-dossiers for prequalification participation, or e-dossiers for project implementation registration:

a/ After submitting e-dossiers for expression of interest, e-dossiers for prequalification participation, or e-dossiers for project implementation registration, investors may modify, replace or withdraw such dossiers.

b/ After the deadline for submission of e-dossiers for expression of interest, e-dossiers for prequalification participation, or e-dossiers for project implementation registration, investors may not withdraw the submitted dossiers.”.

 5. To annul Clause 3, Article 9; Point c, Clause 1, Point c, Clause 2, and Point c, Clause 3, Article 10; and Point b, Clause 1, Article 20.

Article 3. Implementation provisions

1. This Circular takes effect on July 26, 2024.

2. Any problems arising in the course of implementation of this Circular should be reported to the Ministry of Planning and Investment for further guidance.-

Minister of Planning and Investment
NGUYEN CHI DUNG