Circular 95/2024/TT-BTC management, use of expenditures related to selection of investors for investment projects in PPP form

CIRCULAR

On the management and use of revenues and expenditures related to the process of selection of investors for implementation of investment projects in the form of public-private partnership^[1]

Pursuant to the Government’s Decree No. 163/2016/ND-CP of December 21, 2016, detailing a number of articles of the Law on the State Budget;

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

Pursuant 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;

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. 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. 60/2021/ND-CP of June 21, 2021, providing the financial autonomy mechanism applicable to public non-business units;

Pursuant to the Government’s Decree No. 99/2021/ND-CP of November 11, 2021, on the management, payment and finalization of projects using public investment funds;

Pursuant to the Government’s Decree No. 35/2023/ND-CP of June 20, 2023, amending and supplementing a number of articles of the Decrees under the state management of the Ministry of Construction;

Pursuant to the Government’s Decree No. 14/2023/ND-CP of April 20, 2023, defining 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 promulgates the Circular on the management and use of revenues and expenditures related to the process of selection of investors for implementation of investment projects in the form of public-private partnership.

Chapter I

GENERAL PROVISIONS

Article 1. Scope of regulation

This Circular provides the management and use of revenues and expenditures related to the process of selection of investors for implementation of investment projects in the form of public-private partnership (below referred to as PPP projects).

Article 2. Subjects of application

Organizations and individuals that are engaged or involved in the selection of investors for implementation of PPP projects as specified in Clause 1 of this Circular.

Chapter II

MANAGEMENT OF REVENUES AND EXPENDITURES IN THE SELECTION OF INVESTORS FOR IMPLEMENTATION OF PPP PROJECTS

Article 3. Principles of management of revenues and expenditures in the process of selection of investors for implementation of PPP projects

1. Revenues and expenditures in the selection of investors for implementation of PPP projects shall be used for their intended purposes in accordance with State’s regulations and laws.

2. The formulation of estimates, payment and finalization of revenues and expenditures in the process of selection of investors must comply with the law on the management, use, payment and finalization of public investment funds and recurrent expenditures of the state budget.

Article 4. Expenditures in the selection of investors for implementation of PPP projects

Expenditures and expenditure norms in the investor selection must comply with Article 32 and Point e, Clause 2, Article 73 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).

Article 5. Revenues in the investor selection

1. Revenues from the sale of bidding dossiers and other revenues (if any), after tax obligations are fulfilled, shall be remitted by bid solicitors into the state budget in accordance with the law on the state budget.

2. Selected investors shall reimburse the costs specified in Article 4 of this Circular and remit them into the state budget in accordance with the law on the state budget within 15 days after PPP contracts take effect.

Article 6. Funding sources for the selection of investors for implementation of PPP projects

1. Expenses for activities involved in the investor selection as specified in Clauses 2 and 3, Article 32 of Decree No. 35/2021/ND-CP shall be included in competent agencies’ plans on funding sources for preparation of PPP projects from the state budget’s public investment funds and recurrent expenditures and accounted in total investment capital amounts of PPP projects.

2. Expenses for the settlement of investors’ petitions shall be paid by the petitioning investors under Point e, Clause 2, Article 73 of Decree No. 35/2021/ND-CP.

Article 7. Management and use of funds for the selection of investors for implementation of PPP projects

1. If bid solicitors are project management units: the management, use and finalization of funds for organizing bidding to select investors for implementation of PPP projects must comply with the Ministry of Finance’s Circular No. 70/2024/TT-BTC of October 1, 2024, on the management and use of revenues from project consultancy and management activities of investors and management units of projects funded by the state budget.

2. If specialized units or subordinate units of competent agencies hire consultants to select investors for implementation of one or all of the tasks specified in Clauses 2, 3, and 4, Article 32 of Decree No. 35/2021/ND-CP, expense for consultant hiring is as follows:

a/ The total expenditure amount for investor selection, inclusive of taxes (including expenses for activities directly performed by bid solicitors) must not exceed the approved expense estimates for consultant hiring.

b/ The amount paid to the consulting unit must comply with the contract signed between the bid solicitor and the consulting unit.

c/ The management, use, payment and finalization of funds specified at Point b of this Clause must comply with the current regulations on the management, payment and finalization of public investment funds.

3. If specialized units or subordinating units of competent agencies are capable as approved by competent agencies to independently perform several or all of the tasks specified in Clauses 2, 3, and 4, Article 32 of Decree No. 35/2021/ND-CP: The management and use of funds for assigned units to organize by themselves the bidding for investor selection must comply with the financial mechanism approved by the competent authority.

Article 8. Expenses for settlement of petitions of investors regarding results of the selection of investors for implementation of PPP projects

1. In case an investor makes a petition concerning investor selection results that shall be settled by a competent authority, the investor shall pay an expense for the petition settlement to the standing body of the advisory council as specified at Point e, Clause 2, Article 73 of Decree No. 35/2021/ND-CP. If the investor withdraws the petition before it is settled, the expense for the petition settlement already paid by the investor shall be settled as follows:

a/ The investor shall be reimbursed 50% of the paid expense if the advisory council has not yet been established, or has been established but has not yet held its meeting.

b/ The investor may not be reimbursed the paid expenses if the advisory council has already held its meeting. The remaining expense paid by the investor shall be remitted by the advisory council’s standing body into the state budget within 7 working days after the investor withdraws the petition.

2. The advisory council’s standing body shall make a detailed estimate of expenses for the settlement of petitions regarding investor selection results and submit it to the advisory council’s chairperson for approval.

3. The expense estimate approved by the advisory council’s chairperson under Clause 2 of this Article must not exceed expenses paid by the petitioning investor as specified in Clause 1 of this Article.

4. The advisory council’s chairperson shall decide on expenditures based on the approved estimates, for members of the advisory council, the advisory council’s assisting standing body, and other expenses for the petition settlement. Remunerations for the advisory council’s petition-settling members who are civil servants or public employees must comply with law.

5. The advisory council’s standing body shall pay expenses for the petition settlement in accordance with the expense estimates approved by the advisory council’s chairperson.

6. Upon the completion of the petition settlement, the advisory council’s chairperson shall certify actually paid expenses. Any positive difference between the amount paid by the petitioning investor and the actually paid expenses (if any) as certified by the advisory council’s chairperson shall be refunded by the advisory council’s standing body to the investor within seven (07) working days from the date of certification.

7. If an investor’s petition is concluded to be correct, the document on the settlement of the investor’s petition concerning investor selection results must clearly state that the petitioning investor is entitled to refund of the paid expense for the petition settlement. The advisory council’s standing body shall request in writing the bid solicitor to refund to the investor an amount equal to the paid expense minus the amount already refunded by the advisory council’s standing body under Clause 6 of this Article (if any).

8. Funding sources for making refunds to investors under decisions on settlement of petitions concerning investor selection results in case the competent authority concludes such petitions are correct:

a/ If the bid solicitor is an administrative unit or a public non-business unit: funding sources for making refund to the investor shall be included in the unit’s recurrent expenditure estimates.

b/ If the bid solicitor is neither an administrative agency nor a public non-business unit: funding sources for making refund to the investor shall be included in the unit’s operation funding sources.

9. Organizations or individuals committing violations under competent authorities’ decisions on settlement of investor petitions shall make compensation for bid solicitors in accordance with law.

Chapter III

ORGANIZATION OF IMPLEMENTATION

Article 9. Responsibilities of related agencies

1. Responsibilities of competent agencies and agencies or units designated as bid solicitors:

a/ To take responsibility for managing and using revenues and expenditures in the process of investor selection in accordance with law;

b/ To make expense estimates in the process of investor selection and make and submit reports on finalization of actual expenses to competent authorities for appraisal and approval;

c/ To refund expenses paid by advisory councils in case investors’ petitions are concluded to be correct.

2. Responsibilities of payment agencies:

To control and pay expenses in the process of investor selection in accordance with the regulations on state budget payment, public investment, the current financial management regime of the State and specific provisions of this Circular.

3. Responsibilities of advisory council chairpersons and standing bodies:

a/ Advisory councils’ chairpersons shall manage and use expenses paid by investors under Clause 1, Article 8 of this Circular in an efficient and economical manner and in compliance with law;

b/ Advisory councils’ standing bodies shall receive expenses paid by investors, formulate and submit expense estimates to advisory councils’ chairpersons for approval, and refund positive revenue-expenditure differences to petitioning investors under Article 8 of this Circular.

4. Responsibilities of ministries, central agencies, other agencies, and localities:

To check the management and use of revenues and expenditures in the process of investor selection for PPP projects, and take measures for settlement thereof in accordance with law, for individuals or units that commit violations in the management and use of revenues and expenditures.

Article 10. Responsibilities of investors

Selected investors shall remit into the state budget expenses incurred in the process of investor selection that are covered by public investment funding sources or recurrent expenditures as specified in Clause 1, Article 6 of this Circular in accordance with the law on the state budget.

Article 11. Implementation provisions

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

2. To annul the Minister of Finance’s Circular No. 08/2022/TT-BTC of February 9, 2022, on the management and use of revenues and expenditures in the process of investor selection.

The management and use of revenues and expenditures in the process of investor selection for implementation of projects that are subject to bidding in accordance with the regulations on management of sectors and fields, and investor selection for implementation of land using projects must comply with the Government’s Decree No. 23/2024/ND-CP of February 27, 2024, detailing a number of articles and providing measures for implementation of the Law on Bidding regarding investor selection for projects subject to bidding in accordance with the regulations on management of sectors and fields; the Government’s Decree No. 115/2024/ND-CP of September 16, 2024, detailing a number of articles and measures for implementation of the Law on Bidding regarding investor selection for implementation of land using investment projects.

3. In case estimates of expenses for the selection of investors for implementation of PPP projects are approved by competent authorities before the effective date of this Circular, the payment and finalization of investor selection expenses must comply with this Circular without requiring re-approval of such estimates.

4. If documents referred to in this Circular are amended, supplemented or replaced, the amending, supplementing or replacing documents shall prevail.

5. Ministries, central agencies, other agencies, People’s Committees at all levels, and related organizations and individuals shall implement this Circular.-

For the Minister of Finance
Deputy Minister
BUI VAN KHANG