Decree 71/2025/ND-CP amending Decree 35/2021/ND-CP on public-private partnership investment

DECREE

Amending and supplementing a number of articles 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^[1]

Pursuant to the February 18, 2025 Law on Organization of the Government;

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

Pursuant to the November 29, 2024 Law Amending and Supplementing a Number of Articles of the Planning Law, the Law on Investment, the Law on Investment in Form of Public-Private Partnership, and the Bidding Law;

At the proposal of the Minister of Finance;

The Government promulgates the Decree amending and supplementing a number of articles 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.

Article 1. To amend and supplement a number of articles 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

1. To amend and supplement Article 1 as follows:

“1. This Decree details and guides the implementation of the Law on Investment in the Form of Public-Private Partnership (below referred to as the PPP Law) regarding PPP project appraisal councils; contents of the preparation of PPP projects and projects implemented under BT contracts and not requiring payment; selection of investors for implementation of PPP projects; certification of completion and handover of infrastructure facilities and systems; termination of PPP project contracts; and handling of situations and violations in PPP investment.

2. This Decree does not apply to projects implemented under BT contracts and paid from the state budget or implemented under BT contracts and paid with land areas.”.

2. To amend and supplement Clauses 1 and 2, Article 8 as follows:

a/ To amend Clause 1 as follows:

“1. An interdisciplinary appraisal council shall be formed for each project under the Prime Minister’s decision at the proposal of the Ministry of Finance or under the Minister of Finance’s decision as authorized by the Prime Minister.”;

b/ To amend Clause 2 as follows:

2. An interdisciplinary appraisal council shall be composed of its Chairperson, Vice Chairpersons and other members. The Chairperson of an interdisciplinary appraisal council is the Minister of Finance. Vice Chairpersons of the council are representatives of leaderships of related ministries or agencies. Members of the council include representatives of related ministries and agencies.”.

3. To amend and supplement a number of clauses of Article 16 as follows:

a/ To add Clause 2a below Clause 2 as follows:

“2a. In case no appraisal council is formed, appraisal expenses of the unit assigned the appraisal task include expenses for organization of meetings, stationery, and field survey (if any) according to the relevant norms specified at Point b, Clause 2 of this Article and shall be allocated from public investment capital source, recurrent expenditures and other lawful funding sources. For projects implemented under BT contracts and not requiring payment, expenses for appraisal of feasibility study reports and draft contracts shall be allocated from recurrent expenditures of units assigned the appraisal task.”;

b/ To amend and supplement Clause 3 as follows:

“3. The expenses specified in Clauses 1 and 2 of this Article shall be allocated from public investment capital source, recurrent expenditures or other lawful funding sources, and paid by the PPP project preparation unit or agency in charge of receiving project proposal dossiers (in case the investor makes the project proposal) under the contract on hire of verification consultants and at the request of the standing body of the appraisal council.”.

4. To add Clauses 2a and 2b below Clause 2, Article 17 as follows:

“2a. Projects to be implemented in geographical areas with difficult socio-economic conditions or geographical areas with extremely difficult socio-economic conditions specified at Point b, Clause 2a, Article 69 of the PPP Law shall be identified on the basis of the list of geographical areas eligible for investment incentives in accordance with the investment law.

2b. A road project in the case specified in Clause 2a of this Article will be eligible for application of the rate of state capital amount in PPP projects exceeding 50% but not exceeding 70% of the preliminary total investment when fully satisfying the following conditions: 

a/ It is implemented in at least one geographical area with difficult socio-economic conditions or geographical area with extremely difficult socio-economic conditions;

b/ It needs to use a state capital amount higher than the level specified in Clause 2, Article 69 of the PPP Law due to the fact that the transport flow, estimated product and public service prices and charges, expected turnover, capital recovery duration and profit of the investor or other contents of the financial plan make the project financially unfeasible.”.

5. To amend and supplement Clause 1, Article 18 as follows:

“1. The time limit for appraisal of a prefeasibility study report of a PPP project shall be counted from the date of issuance of the appraisal council formation decision or from the date the unit assigned the appraisal task receives a complete and valid dossier as specified in Clause 2 of this Article, or from the date of receipt of a verification report in case of hiring verification consultants, specifically as follows:

a/ Thirty days, for projects subject to the Prime Minister’s investment policy decision;

b/ Fourteen days, for projects subject to investment policy decision by ministers or heads of central agencies or other agencies, or by provincial-level People’s Councils or People’s Committees;

c/ Ten days, for projects only requiring construction investment econo-technical reports.

For projects that require accelerated implementation progress, Chairpersons of appraisal councils shall decide on appraisal time limits as appropriate.”.

6. To amend and supplement a number of clauses of Article 21 as follows:

a/ To amend and supplement Clause 4 as follows:

“4. For a PPP project to be implemented in two or more provincial-level administrative units as specified at Point b, Clause 4 or Point b, Clause 4a, Article 12 of the PPP Law, the Prime Minister shall decentralize powers to the related line minister to assign an agency to act as the competent agency. The decision on investment policy for a PPP project is as follows:

a/ The provincial-level People’s Committees of the localities where the project is to be implemented shall exchange opinions and reach agreement on proposing the project implementation, covering the following contents: name, scale and location of the project and type of project contract, preliminary total investment, state capital amount in the project, and division of responsibilities for balancing and allocating budget funds by each locality.

b/ For a project subject to investment policy decision by the provincial-level People’s Council as specified at Point b, Clause 4, Article 12 of the PPP Law, the provincial-level People’s Committees of the localities where the project is to be implemented shall report the contents specified at Point a of this Clause to the provincial-level People’s Councils for consideration and consensus.

Based on the consensus of the provincial-level People’s Councils, the provincial-level People’s Committees of the localities where the project is to be implemented shall reach agreement with the related line ministry on assigning a local authority to act as the competent agency;

c/ For a project subject to investment policy decision by the provincial-level People’s Committee as specified at Point b, Clause 4a, Article 12 of the PPP Law, the provincial-level People’s Committees of the localities where the project is to be implemented shall reach agreement with the related line ministry on assigning a local authority to act as the competent agency. In case the project requires the use of state capital, the provincial-level People’s Committees shall report such to the provincial-level People’s Councils before reaching agreement with the related line ministry on assigning a local authority to act as the competent agency;

d/ The provincial-level People’s Committee assigned to act as the project’s competent agency under Point b or c of this Clause as agreed by the related line ministry shall organize the project preparation and submit the project to the competent authority for deciding on investment policy specified at Point b, Clause 4, or Point b, Clause 4a, Article 12 of the PPP Law;

dd/ In case the money amount for compensation, ground clearance, support and resettlement, or support for construction of makeshift works are allocated from local budgets, the concerned provincial-level People’s Committees shall reach agreement with one another and report to the provincial-level People’s Councils on division of the project into component projects for compensation, ground clearance, support and resettlement, or support for construction of makeshift works together with the contents specified at Point b or c of this Clause for each locality to implement them in accordance with the law on public investment.”;

b/ To add Point c to Clause 6 as follows:

“c/ Ten days, for projects subject to investment policy decision by provincial-level People’s Committees; or 5 working days, for projects only requiring construction investment econo-technical reports.”.

7. To amend and supplement a number of clauses of Article 24 as follows:

a/ To amend and supplement Clause 1 as follows:

“1. PPP project preparation units shall prepare feasibility study reports under Clause 2, Article 19 of the PPP Law according to Form No. 01 provided in Appendix III to this Decree, except the case specified in Article 28a of this Decree.”;

b/ To amend and supplement Clause 3 as follows:

“3. Appraisal councils at all levels or units attached to ministries, central agencies or other agencies, and provincial-level People’s Committees assigned with the task of appraising PPP project feasibility study reports shall prepare feasibility study report appraisal reports under Clause 2, Article 20 of the PPP Law according to Form No. 02 provided in Appendix III to this Decree.

For PPP projects only requiring construction investment econo-technical reports, contents of the appraisal of such reports must comply with the relevant provisions of Clause 2, Article 20 of the PPP Law.”;

c/ To add Clause 4 as follows:

“4. For projects to be implemented under O&M contracts and PPP projects each with the total investment equal to that of a group-B or group-C project as specified in the law on public investment and not funded by state capital, the preparation and appraisal of feasibility study reports must comply with Clauses 2 and 3, Article 19, and Article 20, of the PPP Law, and Clauses 1, 2 and 3 of this Article, ensuring that such projects fully satisfy the conditions for being considered PPP projects as specified in Clause 1, Article 14 of the PPP Law.”.

8. To amend and supplement Clause 1, Article 25 as follows:

“1. In the course of preparation of a PPP project feasibility study report, the competent agency shall carry out survey of interest of investors and lenders (if any), except PPP projects subject to investor appointment under Clause 2, Article 39 of the PPP Law, projects subject to investor selection in special cases, and projects implemented under BT contracts and not requiring payment. The survey for projects specified in Clauses 2a and 2b, Article 11 of the PPP Law or projects proposed by investors shall be carried out after project preparation units or investors finalize draft feasibility study reports and send them to competent agencies.”.

9. To amend and supplement Clause 1, Article 26 as follows:

“1. The time limit for appraisal of a PPP project feasibility study report shall be counted from the date of issuance of the appraisal council formation decision or from the date the unit assigned the appraisal task receives a complete and valid dossier specified in Clause 2 of this Article, or from the date of receipt of a verification report in case of hiring verification consultants, specifically as follows:

a/ Thirty days, for projects subject to approval by the Prime Minister;

b/ Fourteen days, for projects subject to approval by ministers, heads of central agencies or other agencies, or chairpersons of provincial-level People’s Committees; or ten days, for the projects specified in Clauses 2a, 2b and 2c, Article 11 of the PPP Law.

For projects that require accelerated implementation progress, Chairpersons of appraisal councils shall decide on appraisal time limits as appropriate.”.

10. To amend and supplement a number of clauses of Article 28 as follows:

a/ To add Clause 1a below Clause 1 as follows:

“1.a. For a project to be implemented under an O&M contract and PPP project with the total investment equal to that of a group-B or group-C project as specified in the law on public investment and not funded by state capital:

a/ The investor shall send a written proposal on PPP project implementation by hand-delivery or by post to the competent agency specified in Clause 1, Article 5 of the PPP Law;

b/ The competent agency shall consider and issue a written reply stating its approval or disapproval of the investor’s preparation of a feasibility study report. In case of approval, the competent agency shall assign the investor to prepare a feasibility study report under Clause 1, Article 24 of this Decree. A dossier for appraisal of the project’s feasibility study report must comprise the documents specified at Points a, b, c and dd, Clause 1, Article 20 of the PPP Law;

c/ PPP projects proposed by investors must satisfy the conditions specified in Article 26 of the PPP Law.”;

b/ To amend the first paragraph of Clause 2 as follows:

“2. The assignment for the investor to prepare a feasibility study report under Clauses 1 and 1.a of this Article shall be made on the basis of a written agreement between the competent agency and the investor. Such agreement must have the following contents: purposes; requirement; name of the agency or unit in charge of receiving the feasibility study report prepared by the investor; expenses for the preparation of the feasibility study report; expenses for hiring independent consultants to verify the report; and principles of handling in the following cases:”;

c/ To amend Clause 3 as follows:

“3. Investor-prepared feasibility study reports shall be appraised under Point b, Clause 3, Article 27 of the PPP Law, and Clause 3, Article 24, and Article 26, of this Decree. The agency or unit in charge of receiving investor-prepared feasibility study reports shall carry out procedures for submitting such reports for appraisal and submitting PPP projects for approval.”.

11. To add Article 28a below Article 28 as follows:

“Article 28a. Preparation and appraisal of feasibility study reports, approval of investor-proposed projects to be implemented under BT contracts and not requiring payment

1. An investor-proposed project to be implemented under a BT contract and not requiring payment musts satisfy the following conditions:

a/ Satisfying the conditions for being selected for investment in the form of PPP as specified at Points a, b and c, Clause 1, Article 14 of the PPP Law;

b/ Not being identical to a PPP project for which the prefeasibility study report or feasibility study report is being prepared by the competent agency or for which another investor has been approved to prepare the prefeasibility study report or feasibility study report;

c/ Conforming to relevant master plans in accordance with the planning law.

2. Procedures for proposing, appraising and approving a project:

a/ The investor shall send a written proposal on project implementation by hand-delivery or by post to the competent agency specified in Clause 1, Article 5 of the PPP Law;

b/ The competent agency shall consider and issue a written reply stating its approval or disapproval of the investor’s preparation of a feasibility study report and draft contract. Contents of such approval include: name of the investor; time limit and place for submission of the project proposal dossier; agency or unit in charge of receiving the project proposal dossier and carrying out procedures for project submission, appraisal and approval; method of coordinating with organizations and units of the competent agency, and other relevant contents; in case of disapproval, it shall state the reasons;

c/ In case the project proposal dossier is approved by the competent agency, the investor shall prepare a project proposal dossier which must comprise: a draft feasibility study report prepared in accordance with the construction law and relevant regulations; draft contract and dossier of the investor’s legal status and financial capacity for arranging capital sources for project implementation, and send it to the competent agency.

In case the project proposal dossier is disapproved, the investor shall bear all expenses and risks;

d/ The competent agency shall appraise the project appraisal dossier under Clause 2, Article 20 of the PPP Law. The number of sets of appraisal dossiers is specified in Clause 2, Article 26 of this Decree;

dd/ The competent agency shall approve the project, enclosed with the draft contract under Article 23 of the PPP Law and according to Form No. 03 provided in Appendix III to this Decree;

e/ For a project only requiring the construction investment econo-technical report, the investor shall prepare a construction investment econo-technical report and send it to the competent agency, enclosed with the written proposal on project implementation specified at Point a of this Clause. In case of approving the investor’s proposal, the competent agency shall organize the project appraisal, approval and implementation in accordance with the construction law without having to comply with Points b, c, d and dd of this Clause.

3. The adjustment of a PPP project shall be carried out under Points a, b and c, Clause 1, and Clause 4, Article 24 of the PPP Law.

4. Expenses for preparation of feasibility study reports shall be accounted into total investment of projects.”.

12. To amend and supplement a number of clauses of Article 31 as follows:

a/ To amend and supplement Clause 6 as follows:

“6. For projects subject to open bidding and competitive negotiation under Clause 1, Article 38 of the PPP Law:

a/ For projects subject to investment policy decision by the National Assembly or the Prime Minister, the time limit for preparation of bid dossiers is 45 days (in case of selection of domestic investors) or 60 days (in case of selection of international investors) from the first date of distribution of bidding dossiers to the date of bid closing;

b/ For projects each with the total investment equal to that of a group-A project as specified in the law on public investment (except those specified at Point a of this Clause), the time limit for preparation of bid dossiers is 30 days (in case of selection of domestic investors) or 45 days (in case of selection of international investors) from the first date of distribution of bidding dossiers to the date of bid closing;

c/ For projects each with the total investment equal to that of a group-B or group-C project as specified in the law on public investment, the time limit for preparation of bid dossiers is 20 days from the first date of distribution of bidding dossiers to the date of bid closing;

d/ For projects only requiring construction investment econo-technical reports, the time limit for preparation of bid dossiers is 10 days from the first date of distribution of bidding dossiers to the date of bid closing;”;

b/ To amend and supplement Point b, Clause 7 as follows:

“b/ The time limit for preparation of bid dossiers is specified in Clause 6 of this Article.”;

c/ To amend Clause 8 as follows:

“8. For projects subject to investor appointment under Point a, Clause 1, Article 39 of the PPP Law, the time limit for preparation of bid dossiers is 30 days, in case of selection of domestic investors, or 45 days, in case of selection of international investors, from the first date of distribution of bidding dossiers to the date of bid closing.”.

13. To amend Clauses 6 and 7, Article 32 as follows:

“6. The expense for posting of information on investor selection on the Vietnam National E-Procurement System must comply with the relevant provisions of Point a, Clause 11, Article 12 of the Government’s Decree No. 24/2024/ND-CP of February 27, 2024, detailing a number of articles of, and providing measures to implement, the Bidding Law regarding contractor selection. The expense for submission of bid dossiers, expenses payable by bid-winning investors, and expense for connection of the function of bid guarantee on the Vietnam National E-Procurement System must follow the roadmap for application of online investor selection specified at Point b, Clause 1, Article 93 of this Decree.

7. The expenses specified in Clauses 2, 3, 4 and 5 of this Article and the expense for investor selection on the Vietnam National E-Procurement System specified in Clause 6 of this Article shall be included in total investment of projects under Clause 1, Article 73 of the PPP Law.”.

14. To amend and supplement Article 33 as follows:

“Article 33. Experts’ teams

1. Experts’ teams composed of capable and experienced individuals shall be formed or tasked by bid solicitors to evaluate dossiers for participation in prequalification, dossiers for participation in negotiation and bid dossiers, and perform other tasks in the course of investor selection.

2. Depending on characteristics and complexity of a project, an experts’ team shall be composed of technical, financial, commercial, administrative and legal experts and experts in other related fields. A member of an experts’ team must satisfy the following conditions:

a/ Possessing a certificate of professional training in bidding, except the case specified in Clause 3 of this Article;

b/ Possessing a university or higher degree;

c/ Having foreign language skills, for projects involving the selection of international investors;

d/ Having the full civil act capacity in accordance with law; not being examined for penal liability;

dd/ Having at least 3 years’ working experience in a field relevant to legal, technical and financial contents of the project, specifically as follows: having experience in or having performed technical jobs stated in the dossier of invitation to prequalification, dossier of invitation to negotiation, or bidding dossier, or financial or legal jobs.

3. In case it is necessary to solicit opinions of experts, such experts are not required to possess a certificate of professional training in bidding.”.

15. To add Article 33a below Article 33 as follows:

“Article 33a. Appraisal units

1. For a project with the provincial-level People’s Committee acting as the competent agency, the provincial-level Department of Finance shall organize the appraisal of the following contents:

a/ Dossier of invitation to negotiation, dossier of invitation to prequalification, bidding dossier, and prequalification results subject to approval by the provincial-level People’s Committee, except the case specified in Clause 3 of this Article;

b/ Investor selection results.

2. For a project with a ministry, a central agency or another agency acting as the competent agency, the minister or the head of the central agency or another agency shall assign a specialized agency or an attached agency or unit to organize the appraisal of the following contents:

a/ Dossier of invitation to negotiation, dossier of invitation to prequalification, bidding dossier, and prequalification results subject to approval by the ministry, the central agency or another agency, except the case specified in Clause 3 of this Article;

b/ Investor selection results.

3. If being authorized to approve the dossier of invitation to negotiation, dossier of invitation to prequalification bidding dossier, and prequalification results, the bid solicitor shall form an appraisal unit or assign the appraisal task to an attached unit.

4. In case the unit assigned the appraisal task is unqualified, a capable and experienced consulting organization shall be selected for the appraisal. In this case, individuals of the consulting organization who participate in the appraisal must satisfy the requirements specified at Points a, b, c and d, Clause 2, Article 33 of this Decree.”.

16. To add Clause 3 below Clause 2, Article 35 as follows:

“3. For a project to be implemented under an O&M contract, in case its total investment is also inclusive of the investor’s value remittable into the state budget, the investor may, after fulfilling the obligation to remit such amount into the state budget, get the amount for contract performance security refunded or released in proportion to the amount already remitted into the state budget. The remainder of the amount for contract performance security shall be refunded or released after the investor or PPP project enterprise fulfills the remaining contractual obligations.”.

17. To amend Point dd, Clause 2, and add Clauses 2a and 2b below Clause 2, Article 38 as follows:

a/ To amend Point dd, Clause 2 as follows:

“dd/ Criteria for evaluation of capacity and experience of investors as specified in Clauses 2a and 2b of this Article;”;

b/ To add Clauses 2a and 2b below Clause 2 as follows:

“2a. Criteria for evaluation of capacity and experience of investors, including:

a/ Financial-commercial capacity: ability to mobilize equity and loans; ability to implement methods of commercially operating or operating project works, or providing public products and services;    

b/ Requirements on capacity and experience of key personnel (when necessary);

c/ Experience in implementation of similar projects and experience in operation and commercial operation of infrastructure facilities and systems for provision of public products and services (for projects implemented under BOT, BTO, BOO, BTL, BLT or mixed contracts);

d/ Experience in operation or commercial operation of infrastructure facilities and systems for provision of public products and services (for projects implemented under O&M contracts);

dd/ Based on specific characteristics and requirements of projects, dossiers of invitation to prequalification may set a criterion in favor of investors experienced in implementation of similar PPP projects in the countries being members of the Organization for Economic Cooperation and Development (OECD).

2b. In case of a joint-name entity, the investor leading the joint-name entity shall make a commitment to contributing at least 30% of equity while every other member shall make a commitment to contributing at least 15% of equity in the joint-name agreement. For projects implemented under O&M contracts, there must be at least one joint-name member experienced in operating or commercially operating infrastructure facilities and systems for provision of public products and services. For projects implemented under BOT, BTO, BOO, BTL, BLT or mixed contracts, there must be at least one joint-name member experienced in operating or commercially operating infrastructure facilities and systems or the investor leading the joint-name entity must have a cooperation agreement with a partner experienced in operating or commercially operating infrastructure facilities and systems for provision of similar public products and services.”.

18. To amend and supplement a number of points and clauses of Article 49 as follows:

a/ To amend the first paragraph of Clause 1 as follows:

“1. The biding dossier shall be approved based on the following papers and documents:”;

b/ To amend and supplement Clause 4 as follows:

“4. In case a PPP project has mini-projects using public investment capital and categorized as works with three-step designs as specified in the construction law, the competent agency shall organize the formulation, appraisal and approval of technical designs and cost estimates of such mini-projects in the course of investor selection.”;

c/ To amend Point c of, and add Point d to, Clause 5 as follows:

“c/ The competent agency shall approve the bidding dossier based on the request for approval and report on appraisal of the bidding dossier, except the case specified at Point d of this Clause;

d/ The competent agency may authorize the bid solicitor to approve the bidding dossier.”.

19. To amend Point a, Clause 3, Article 50 as follows:

“a/ The financial-commercial evaluation shall be based on the comparison and ranking method as stated in bidding dossier. The bidding dossier must state one criterion or several criteria or combine criteria on product and public service prices and charges, state capital amount provided as support for construction of infrastructure facilities and systems; and social interests and state interests as specified in Clause 3, Article 42 of the PPP Law, for comparing and ranking investors that meet financial-commercial requirements. The first-ranked investor shall be considered and proposed to win the bid.”.

20. To amend and supplement Article 57 as follows:

a/ To amend the title of Article 57 as follows:

“Article 57. Approval of the list of investors meeting technical requirements”;

b/ To amend Clause 2 as follows:

“2. The competent agency shall approve the list of investors meeting technical requirements. The competent agency may authorize the bid solicitor to approve the list of investors meeting technical requirements.”.

21. To amend Clause 1, and add Clause 1a below Clause 1, Article 65 as follows:

“1. A PPP project contract shall be signed by the contractual parties under Articles 46, 47, 48 and 49 of the PPP Law and guidance on preparing a model PPP project contract provided in Appendices VI, VII and VIII to this Decree.

1a. For a PPP project that has mini-projects using public investment capital, in addition to the provision of Clause 1 of this Article, the PPP project contract may be signed based on approved technical designs and cost estimates of such mini-projects.”.

23. To add Article 65a in Sub-section 1, Section 8, Chapter IV as follows:

“Article 65a. Competence and procedures for deciding on the application of investor appointment

1. For projects subject to national defense or national security assurance or state secret protection requirements as specified at Point a, Clause 1, Article 39 of the PPP Law, the Prime Minister shall decentralize powers to ministers, heads of central agencies or other agencies (in the capacity as heads of competent agencies) or provincial-level People’s Committees to decide on the application of investor appointment.

Before deciding on the application of investor appointment for the projects specified in this Clause, the competent agency shall collect written opinions of the Ministry of National Defense or the Ministry of Public Security with regard to national defense or national security assurance or state secret protection requirements.

2. Procedures and principles for investor appointment must comply with Article 66 of this Decree.”.

23. To amend and supplement Article 69 as follows:

“Article 69. Competence to decide on the application of investor selection in special cases

1. The Prime Minister shall decentralize powers to ministers, heads of central agencies or other agencies (in the capacity as heads of competent agencies) or provincial-level People’s Committees to decide on the application of investor selection in special cases for:

a/ Projects subject to requirements on assurance of national interests or performance of national political tasks as directed in resolutions, conclusions or written guidelines of the Party Central Committee, the Political Bureau, the Secretariat, and the key leaders of the Party and the State on the implementation of such projects in case it is impossible to meet such requirements if applying one of the forms of investor selection specified in Articles 37, 38 and 39 of the PPP Law;

b/ Projects subject to immediate implementation to meet urgent requirements as directed in the Government’s resolutions, decisions, directives or notices of opinions of the Government’s leadership in case it is impossible to complete the project implementation as scheduled if applying one of the forms of investor selection specified in Articles 37, 38 and 39 of the PPP Law;

c/ Projects subject to immediate implementation to ensure connection and consistency between their works as directed in the Government’s resolutions, decisions, directives or notices of opinions of the Government’s leadership in case it is impossible to ensure the efficiency of the management and operation of such works if applying one of the forms of investor selection specified in Articles 37, 38 and 39 of the PPP Law; and,

d/ Offshore wind power projects as specified in the law on electricity.

2. For a PPP project with special and peculiar conditions and not falling into the cases specified in Clause 1 of this Article that make it impossible to select investors through open bidding or competitive negotiation or investor appointment, the competent agency shall report such to the Prime Minister for consideration and decision on application of investor selection in special cases. Based on the Prime Minister’s decision, the competent agency shall approve the investor selection plan in special cases together with or separately from the project approval decision or investment policy decision (for projects applying high technologies or projects applying new technologies).”.

24. To amend and supplement Article 70 as follows:

“Article 70. Procedures for deciding on the application of investor selection in special cases

1. Based on project implementation requirements and directions in resolutions, conclusions and written guidelines of the Party Central Committee, the Political Bureau, the Secretariat, and key leaders of the Party and the State (for the projects specified at Point a, Clause 1, Article 69 of this Decree) or directions in the Government’s resolutions or decisions, directives and notices of opinions of the Government’s leadership (for the projects specified at Points b and c, Clause 1, Article 69 of this Decree), the competent agency shall assign its attached agency or unit or a specialized agency to prepare a dossier of request for application of investor selection in special cases, then submit it to the competent agency. Such dossier must comprise:

a/ A written request for application of investor selection in special cases, which must contain basic information on the project; explanations about the necessity of and reasons for application of investor selection in special cases; commentaries on investor selection plans, including main contents on procedures for investor selection, contract signing conditions, and other relevant contents, in order to meet special requirements of the project as specified in Clause 1 or 2, Article 69 of this Decree; proposals and recommendations;

b/ A draft decision on application of investor selection in special cases, which must have the contents specified in Clause 4 of this Article;

c/ Relevant legal documents and papers.

2. The competent agency shall send a consultation request to related ministries and agencies to seek the latter’s opinions on the necessity and reasons for application of investor selection in special cases (when necessary).

3. The competent agency shall assign an agency/unit independent from the agency/unit specified in Clause 1 of this Article to summarize opinions of related agencies and organize the appraisal of the dossier of request for application of investor selection in special cases. An appraisal report must have the following contents:

a/ Assessment of the necessity of and reasons for application of investor selection in special cases as specified in Article 40 of the PPP Law;

b/ Opinions on the plan on investor selection in special cases and a draft decision of the competent agency in case of proposing approval of such plan;

c/ Proposal for the competent agency to approve or disapprove the plan on investor selection in special cases.

4. Based on the dossier of request and appraisal report, the competent agency shall consider and decide on approval or disapproval of the application of investor selection in special cases. In case of approval, the competent agency shall decide on the application of investor selection in special cases together with or separately from the project approval decision or investment policy decision (for projects applying high technologies or projects applying new technologies). A decision on the application of investor selection in special cases must have the following contents:

a/ Approval of the application of investor selection in special cases;

b/ Plan on investor selection in special cases, which must have the following contents: procedures for investor selection; contract signing and performance conditions; other relevant contents to meet special requirements and conditions of the project, ensuring the selection of capable and experienced investor(s) and proposing suitable and feasible project implementation plan(s);

c/ Responsibility of the bid solicitor and related agencies in the course of organization of investor selection;

d/ Other requirements in the course of project implementation (if any).

5. The bid solicitor shall select investor(s) under the approved plan on investor selection in special cases. Selected investor(s) must meet capacity and experience requirements and propose suitable and feasible project implementation plan(s) in accordance with the investment policy decision or the PPP project approval decision.

6. Annually, the competent agency shall report to the Prime Minister on the construction of infrastructure facilities and systems by the investor(s) selected in special cases, and send a written report thereon to the Ministry of Finance for subsequent reporting to the Prime Minister in the report reviewing the performance of PPP investment activities under Article 6 of this Decree.”.

25. To amend a number of points and clauses of Article 74 as follows:

a/ To amend Point c, Clause 2 as follows:

“c/ A member of an advisory council may not be a relative (natural parent, parent-in-law, spouse, natural child, adopted child, child-in-law or blood sibling) of the person undersigning the petition; an individual directly involved in preparing the dossier of invitation to prequalification, dossier of invitation to negotiation or bidding dossier or evaluating the dossier for participation in prequalification, dossier for participation in negotiation or bid dossier; an individual who personally appraises the dossier of invitation to prequalification, dossier of invitation to negotiation or bidding dossier, prequalification results, and investor selection results; or the person signing for approval of prequalification results or the list of investors meeting technical requirements or investor selection results.”;

b/ To amend Point a, Clause 4 as follows:

“a/ The standing division assisting the central-level advisory council is a unit of the Ministry of Finance assigned the task of managing investor selection activities. The standing division assisting a ministerial-level advisory council is a unit of a ministerial-level agency assigned the task of managing investor selection activities. The standing division assisting a local-level advisory council is a unit of a provincial-level Department of Finance assigned the task of managing investor selection activities. Standing bodies assisting advisory councils of projects are not composed of individuals directly involved in appraising investor selection results for such projects;”;

26. To amend and supplement Clause 4, Article 76 as follows:

“4. In case a PPP project has mini-projects using public investment capital as specified at Point a, Clause 5, Article 70 of the PPP Law, the payment for completed works and work items of the mini-projects shall be made according to the progress, and completed value and volume thereof as agreed upon between the contract-signing agency and the investor or project enterprise in the project contract.”.

27. To add Clauses 3, 4 and 5 below Clause 2, Article 46 as follows:

“3. For a project implemented under an O&M contract:

a/ Based on the investment policy decision, project approval decision and PPP project contract, the contract-signing agency shall assume the prime responsibility for, and coordinate with the specialized state management agency in charge of assets, the finance agency, and other relevant agencies (when necessary) in, carrying out the handover of assets to the investor or project enterprise. The handover shall be recorded in a minutes in accordance with the law on management and use of public assets and other relevant laws;

b/ The investor or project enterprise shall manage, use, maintain and carry out accounting of, assets invested by the State, ensuring their quality be up to technical standards in accordance with the law on construction and other relevant laws until they are transferred to the contract-signing agency;

c/ The contract-signing agency shall assume the prime responsibility for, and coordinate with the specialized state management agency in charge of assets in monitoring, examining and supervising the investor’s or project enterprise’s compliance with Point b of this Clause until the assets are transferred to the contract-signing agency;

d/ The handover and receipt of infrastructure facilities and systems between the investor or project enterprise and the contract-signing agency must comply with Clause 1 of this Article.

4. For a project implemented under a BT contract not requiring payment:

a/ After the infrastructure facilities and systems have been accepted and qualified for being put into operation and use in accordance with the law on construction, the investor or PPP project enterprise (in case it is established under the investor’s proposal) shall submit a written request for transfer, enclosed with the dossier of request for transfer of infrastructure facilities and systems, to the contract-signing agency;

b/ The contract-signing agency shall sign the minutes of asset receipt and prepare a dossier for reporting to the competent agency for the latter to decide on the establishment of the all-people ownership in accordance with the law on management and use of public assets, and identify the agency or unit assigned to operate and maintain the infrastructure facilities and systems;

c/ Within 30 days after receiving the written request for transfer, the project contract-signing agency shall assume the prime responsibility for, and coordinate with the specialized state management agency in charge of assets, the finance agency, and other relevant agencies (when necessary) in performing the jobs specified at Point b, Clause 1 of this Article;

d/ At least 30 days before the termination of the PPP project contract according to the deadline stated in the contract, the contract-signing agency shall coordinate with the agency or unit assigned to operate and maintain the infrastructure facilities and systems in organizing the implementation of the contents specified at Point c, Clause 1 of this Article;

dd/ After the all-people ownership is established in accordance with the law on management and use of public assets, the assigned agency or unit shall perform the task of managing, operating and exploiting the infrastructure facilities and systems, ensuring the continuity and quality of the provision of products and public services.

5. In case it is required to transfer one or more than one component or work item of infrastructure facilities and systems of a PPP project in accordance with law, the PPP project enterprise shall carry out the transfer of such components or work items in accordance with the relevant provisions of Clause 1, 2 or 4 of this Article.”.

28. To amend and supplement a number of clauses of Article 79 as follows:

a/ To amend Point c of Clause 1 and add Point d below Point c, as follows:

“c/ A written agreement as specified in Clause 2, Article 80 of this Decree;

d/ Other documents as stated in the contract.”;

b/ To add the following Clause 3 below Clause 2:

“3. For PPP projects implemented under BT contracts not requiring payment, a dossier of request for transfer of infrastructure facilities and systems must comprise the documents specified at Points a and d, Clause 1 of this Article.”.

29. To amend and supplement a number of points and clauses of Article 81 as follows:

a/ To amend and supplement Point dd, Clause 2 as follows:

“dd/ Time for the contracting parties to remedy; tentative plans on payment of expenses for premature termination of the contract; the hiring of an independent audit firm (when necessary) in case the investor or PPP project enterprise is entitled to compensation and payment for premature contract termination; the request for the State Audit Office to audit expenses for compensation and premature contract termination before making payment to the investor or PPP project enterprise:”:

b/ To add the following Clause 4a below Clause 4:

“4a. When a PPP project contract is prematurely terminated without selection of a substitute investor:

a/ For a project that is under construction and requires the use of public investment funds to invest in the construction of remaining works, the competent agency shall report such to the competent authority specified in Clause 2, Article 93 and Clause 3, Article 94 of the Law on PPP for consideration and decision the termination of PPP project contracts. For a PPP project falling under the Prime Minister’s competence for investment policy decision that has its contract terminated as specified at Point b, Clause 2, Article 89 of the Law on PPP, the Prime Minister shall delegate powers to a minister or the head of a central agency or another agency (in the capacity as the head of the competent agency) or a provincial-level People’s Committee to decide on the termination of the PPP project contract.

A document permitting the termination of the PPP project contract may also serve as a document terminating the PPP investment policy. The competent agency shall consider and decide on formulation of a project using public investment capital under Point a, Clause 6a, Article 52 of the PPP Law;

b/ For projects that are in the stage of operation or commercial operation, the competent agency shall comply with Point b, Clause 6a, Article 52 of the PPP Law, and at the same time organize the management, operation and maintenance of their infrastructure facilities and systems until a competent authority assigns an agency or unit to take over them under Clause 2, Article 77 and Point dd, Clause 1, Article 78 of this Decree;

c/ Annually, the competent agency shall send a report to the Prime Minister on the performance of the delegated tasks specified at Point a of this Clause (if any), and concurrently to the Ministry of Finance for inclusion in the latter’s report on summarization of the implementation of PPP investment activities for submission to the Prime Minister under Article 6 of this Decree.”.

30. To amend the title and Clause 1 of Article 82 as follows:

a/ To amend the title of Article 82 as follows:

“Article 82. Expenses for compensation  and premature termination of contracts”;

b/ To amend and supplement Clause 1 as follows:

“1. PPP project contracts must specify the payment responsibility of parties and formulas or methods for determining expenses for compensation and premature termination of contracts as specified in Clauses 2, 2a and 2b, Article 52 of PPP Law.”.

31. To add Clause 3a to, and add a number of clauses below Clause 11 of, Article 83 as follows:

a/ To add the following Clause 3a:

“3a. For a project subject to organization of prequalification or open bidding without prequalification, or competitive negotiation as specified in Clauses 2 and 3, Article 38 of the PPP Law, in case at the bid closing time, there is no investor submitting a dossier for participation in prequalification, dossier for participation in negotiation or bid dossier, the bid solicitor shall report such to the competent agency for consideration and settlement by one of the following methods:

a/ Permitting extension of the bid closing time limit for up to 30 days;

b/ Deciding to cancel the notice of bid invitation, and at the same time, reviewing and revising the feasibility study report (when necessary), the dossier of invitation to prequalification, dossier of invitation to negotiation and bidding dossier, and organize the investor selection again;

c/ Deciding to cancel the notice of bid invitation and terminate the project’s investment policy.”;

b/ To add the following Clauses 11a, 11b, and 11c:

“11a. In case, due to a force majeure event, the partner proposed by the investor in the bid dossier for proving its experience in operation or commercial operation of infrastructure facilities and systems is unable to participate in the contract performance, the investor may replace such partner with another one having the equivalent or higher capacity and experience, provided that it does not affect other proposals in the bid dossier. In this case, the bid solicitor shall consider and evaluate the capacity and experience of the substitute partner based on requirements of the bidding dossier and report such to the competent person for consideration and decision.

11b. In case there is no similar project regarding the total investment, based on data in the Vietnam National E-Procurement System on projects for which investors have been selected, the bid solicitor shall report to the competent person for consideration and specify in the bidding dossier requirements on experience in the implementation of similar projects which is at a level equal to or not lower than 90% of requirements stated in the bidding dossier of the project in the same sector or field with the  total investment closest to that of the project under consideration. In this case, the competent person may require the contract performance security value to be equal to 3% of the project’s total investment.

11c. For a project for which investment policy decision or project approval decision has been approved and which is required to be terminated or for which the bidding has been canceled due to the failure to select an investor, the competent agency shall report such to the authority competent to decide on PPP investment policy for consideration and decision on termination of the PPP investment policy. For a project of which the investor or project owner has been determined by a competent authority in a separate document or in a master plan/plan approval decision but the project contract cannot be concluded, the competent agency shall report such to the competent authority for consideration and decision on the project termination.

In case a project is terminated under this Clause and there is a requirement on conversion of its investment form to another investment form, procedures for investment policy decision or approval must comply with relevant regulations applicable to each form of investment.”.

32. To amend and supplement a number of clauses of Article 93 as follows:

a/ To amend and supplement Clause 1 as follows:

“1. The Ministry of Planning and Investment shall:

a/ Assume the prime responsibility for preparing and issuing model dossier for investor selection;

b/ Draw up a roadmap for application of, and provide detailed guidance on the posting of information, selection of investors for PPP projects, and report on the implementation of PPP projects on, the Vietnam National E-Procurement System;

c/ Assume the prime responsibility for guiding the management and use of expenses related to the process of investor selection; and coordinate with ministries and ministerial-level agencies in guiding return on equity (ROE) of investors and model project contract;

d/ Guide the implementation of other contents of this Decree to meet requirements of the state management of PPP investment activities.”;

b/ To amend and supplement Clause 3, Article 93 as follows:

“3. When necessary, ministries and ministerial-level agencies shall base themselves on special conditions (if any) of sectors and fields under their management to provide guidance on socio-economic efficiency indicators, ROE of investors, indicators for quality evaluation, and duration of depreciation of infrastructure facilities and systems in their prefeasibility study reports and feasibility study reports; contents of project contracts; and other necessary contents.

Pending the guidance specified in this Clause, the competent agency shall organize project preparation, investor selection, PPP project contract signing and implementation in accordance with the PPP Law, this Decree and other relevant laws.”.

33. To amend Appendix II as follows:

a/ To amend the second bullet point of Section 7, Form No. 02 provided in Appendix II 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 as follows:

“- In case a prefeasibility study report proposes the application of domestic investor selection or the application of investor appointment to meet the project’s requirement on assurance of national defense and security, or protection of state secrets, to carry out assessment of appropriateness of such proposal.”;

b/ To amend Section 2, Article 2, Form No. 03 provided in Appendix II 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 as follows:

“2. The agency (name of the competent agency or project preparation unit) or the investor proposing the project shall complete the feasibility study report of the project (name of the project) for submission to the competent authority for project approval in accordance with the PPP Law.

[- For projects applying high technologies or new technologies: The agency (name of the competent agency or bid solicitor) shall assume the prime responsibility for, and coordinate with related agencies in, completing a dossier of invitation to negotiation of the project (name of the project) for submission to the competent authority for approval, to serve as a basis for organizing competitive negotiation in accordance with the PPP Law and this Decree.]”.

34. To amend Appendix VI as follows:

a/ To amend Point c, Clause 7, Section II as follows:

“c/ Financial arrangement plan:

- Equity: total capital amount; equity contribution schedule; roadmap for increasing the charter capital of the project enterprise in accordance with the equity contribution schedule.

- Mobilized capital sources (loans, concessional credit capital, project enterprise bonds, and other capital sources): total mobilized capital amount, loan term, loan repayment schedule, grace period (for each capital source); capital mobilization expenses including: loan interest rate of each capital source, necessary expenses related to the mobilization of capital sources as permitted by law; loan currency and exchange rate for payment; conditions for assurance of mobilized capital sources; disbursement schedule and order, debt repayment plan (for each capital source).

- The time of signing the agreement on selection of a substitute investor among the contract-signing agency, the lender, and the investor/project enterprise (signed together with the credit granting contract).”;

b/ To amend and supplement Point a, Clause 19, Section II as follows:

“a/ Value; effective duration; cases in which the contract performance security may or may not be refunded or released; cases in which the contract performance security is refunded or released according to the projects’ implementation progress for projects implemented in phases under the investment policy decision or project approval decision as specified in Article 48 of the PPP Law and Article 35 of this Decree.”.

35. To replace a number of clauses, articles and appendices as follows:

a/ To replace the phrase “Ministry of Planning and Investment” with  the phrase “Ministry of Finance”, and the phrase “Department of Planning and Investment” with the phrase “Department of Finance” at Points d and e, Clause 1, Article 4; Clause 1, Point c, Clause 3, and Clause 4, Article 5; Clause 1, Article 6; Clause 3, Article 8; Clause 3, Article 9; Clause 1, Article 19; Clause 6, Article 32; Points a and b, Clause 1, Point a, Clause 2, and Point a, Clause 4, Article 74; Clause 2, Article 86; and Clauses 2 and 3, Article 87.

b/ To replace Form No. 01, Appendix II with Form No. 01, Appendix I to this Decree;

c/ To replace Form No. 01, Appendix III with Form No. 02, Appendix I to this Decree;

d/ To replace Appendix IV with Appendix II to this Decree;

dd/ To add Appendix VII - Guidance for formulation of model contracts for projects implemented under BT contracts not requiring payment in Appendix III to this Decree;

e/ To add Appendix VIII - Guidance for formulation of model contracts for projects implemented under O&M contracts in Appendix IV to this Decree.

36. To annul Article 2; Clauses 4 and 5, Article 17; Article 19; Clause 2, Article 20; Clause 1, Article 57; Clause 2, Article 72; Clause 2, Article 82; and Clause 2, Article 93.

Article 2. Transitional provisions

1. A PPP project, of which the prefeasibility study report has been prepared or adjusted but, by January 15, 2025, has not been submitted for appraisal or the appraisal council has not been established, shall be transitioned under Point a, Clause 3, Article 6 of Law No. 57/2024/QH15.

2. A PPP project, of which the investment policy has been decided by the Prime Minister and the feasibility study report is being prepared or adjusted but, by January 15, 2025, has not been submitted for appraisal or the inter-disciplinary appraisal council has not been established, shall be transitioned under Point b, Clause 3, Article 6 of Law No. 57/2024/QH15.

3. A PPP project, for which a competent authority has decided the investment policy or approved the project, but, by January 15, 2025, the bidding dossier has not been distributed or has been distributed without any selected investor, shall have its investment policy reviewed and adjusted or feasibility study report adjusted for application of the Law on Investment in the Form of Public-Private Partnership (revised under Law No. 57/2024/QH15) and this Decree.

4. For a PPP project, of which the dossier of invitation to prequalification, dossier of invitation to negotiation or bidding dossier has been distributed before January 15, 2025, but the bidding is closed after the effective date of this Decree, the bid solicitor shall review contents of the distributed dossier for reporting to the competent person for consideration and decision on extension of the bid closing time limit for modification of the bidding dossier and dossier of requirements under this Decree without resulting in the adjustment of the approved investment policy and feasibility study report, or continuation of the implementation according to the distributed dossier.

5. For a PPP project, of which the bid has been opened but by January 15, 2025, the investor selection results have not yet been approved, the bid solicitor shall submit, appraise and approve the investor selection results based on the bid dossiers and distributed bidding dossier. If, by the effective date of this Decree, the investor selection results have not been approved, it shall not be required to appraise the list of technically qualified investors (if the appraisal has not been carried out). The negotiation, finalization and signing of the project contract must comply with the Law on Investment in the Form of Public-Private Partnership (revised under Law No. 57/2024/QH15) and this Decree without resulting in the adjustment of the approved investment policy and feasibility study report.

6. For a PPP project, of which the investor selection results have been approved but by January 15, 2025, the project contract has not been negotiated, completed or signed, the contract-signing agency shall organize such contract negotiation, completion or signing based on the investor selection results, bid dossiers and bidding dossier, and in accordance with the Law on Investment in the Form of Public-Private Partnership (revised under Law No. 57/2024/QH15) and this Decree without resulting in the adjustment of the approved investment policy and feasibility study report.

7. Except projects implemented under BT contracts, PPP project contracts signed before January 1, 2021, may continue to be implemented under their project contracts. When it is necessary to amend or supplement contract contents not governed by laws at the time of contract signing, the parties may reach an agreement on contract revision in accordance with the Law on PPP, this Decree and other relevant laws effective at the time of contract amendment or supplementation.

8. PPP project contracts signed during the period from January 1, 2021, to the effective date of this Decree in accordance with the PPP Law and Decree No. 35/2021/ND-CP may continue to be implemented according to the signed contracts. When it is necessary to amend and supplement the contract contents that result in a change in objectives, locations, scales or types of PPP contracts, or an increase of 10% or more of total investment, or an increase in the value of state capital in PPP projects, procedures for investment policy adjustment shall be carried out under Article 18 of the Law on PPP before the project contract amendment and supplementation.

9. PPP projects implemented during the period from January 15, 2025, to the effective date of this Decree in accordance with the Law on Investment in the Form of Public-Private Partnership (revised under Law No. 57/2024/QH15) and other relevant laws are not required to carry out the relevant procedures again under this Decree.

Article 3. Effect

1. This Decree takes effect from the date of signing.-

2. To annul Clause 2, Article 23 of the Government’s Decree No. 99/2021/ND-CP of November 11, 2021, on management, payment, and account-finalization of projects using public investment capital.

3. Ministers, heads of ministerial-level agencies, heads of government-attached agencies, and chairpersons of provincial-level People’s Committees shall implement this Decree.-

On behalf of the Government
For the Prime Minister
Deputy Prime Minister
TRAN HONG HA

* The Appendices to this Decree are not translated.