Decree No. 35/2021/ND-CP detailing the implementation of the Law on Investment in the Form of Public-Private Partnership

DECREE

Detailing and guiding the implementation of the Law on Investment in the Form of Public-Private Partnership^[1]

Pursuant to the June 19, 2015 Law on Organization of the Government; and the November 22, 2019 Law Amending and Supplementing a Number of Articles of the Law on Organization of the Government and Law on Organization of Local Administration;

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

At the proposal of the Minister of Planning and Investment;

The Government promulgates the Decree detailing and guiding the implementation of the Law on Investment in the Form of Public-Private Partnership.

Chapter I

GENERAL PROVISIONS

Article 1. Scope of regulation 

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 investment fields and size of PPP projects; PPP project appraisal councils; contents of PPP project preparation; 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.

Article 2. Investment fields, size of PPP projects

1. Transport

a/ Investment fields: roads; railways; inland waterways; maritime transport; aviation;

b/ Investment size: Every project with a total investment of VND 1.5 trillion or more.

2. Power grids and power plants

a/ Investment fields: renewable energies; coal power; power fired by gas (including also liquefied natural gas - LNG); nuclear power; and power grids, except cases in which the State holds monopoly in accordance with the Electricity Law;

b/ Investment size: Every project with a total investment of VND 1.5 trillion or more; or every renewable energy project with a total investment of VND 500 billion or more.

3. Irrigation; clean water supply, water drainage and wastewater treatment; and waste treatment: Every project with a total investment of VND 200 billion or more.

4. Health

a/ Investment fields: medical examination and treatment establishments; preventive medicine; testing;

b/ Investment size: Every project with a total investment of VND 100 billion or more.

5. Education-training

a/ Investment fields: infrastructure, physical foundations and equipment serving education-training and vocational education;

b/ Investment size: Every project with a total investment of VND 100 billion or more.

6. Information technology infrastructure

a/ Investment fields: digital information and digital economy infrastructure; modernization of information technology in Party and State agencies; application and development of information technology, databases and data centers; shared-use national platforms, applications and services; cyber security; application systems and services for the people and enterprises; and information and communications technology (ICT) infrastructure for smart cities;

b/ Investment size: Every project with a total investment of VND 200 billion or more.

Article 3. Archive of dossiers in PPP investment

1. Competent agencies shall archive dossiers of the following activities:

a/ Submission, appraisal, decision on, or decision on adjustment (if any) of,  PPP project investment policy;

b/ Submission, appraisal, decision on approval or decision on approval of adjustment (if any) of PPP projects;

c/ Survey of interest of investors and lenders (if any);

d/ Signing of PPP project contracts and contract annexes (if any);

dd/ Disbursement of state capital, if used, in PPP projects;

e/ Account finalization of investment capital for infrastructure facilities and systems;

g/ Liquidation of contracts and handover of assets of projects;

h/ Other activities as stated in project contracts.

2. Bid solicitors shall archive dossiers of the following activities:

a/ Submission, appraisal, and decision on approval of dossiers of invitation to prequalification, dossiers of invitation to negotiation or bidding dossiers and clarifying documents;

b/ Evaluation and clarification (if any) of prequalification participation dossiers, dossiers for participation in negotiation or bid dossiers;

c/ Submission, appraisal and approval of prequalification results and investor selection results.

3. Archive period:

a/ At least 5 years after liquidation of PPP project contracts, for the dossiers specified at Points a, b, c, dd, e and h, Clause 1, and Clause 2 of this Article;

b/ At least 10 years after liquidation of PPP project contracts, for the dossiers specified at Points d and g, Clause 1 of this Article.

Article 4. Posting of information on PPP

1. Responsibility to post information on the Vietnam National E-Procurement System:

a/ Competent agencies shall post information specified at Point a, Clause 1, Article 9, and in Article 25, of the PPP Law, and information on survey of interest of investors specified in Article 25 of this Decree;

b/ Bid solicitors shall post information specified at Point b, Clause 1, Article 9 of the PPP Law and information related to the change (if any) of the time of bid closing;

c/ Contract-signing agencies shall post information specified at Points c, d and dd, Clause 1, Article 9 of the PPP Law;

d/ For information specified at Point e, Clause 1, Article 9 of the PPP Law, the Ministry of Planning and Investment shall post documents promulgated by the National Assembly, National Assembly Standing Committee, Government, Prime Minister, ministers or heads of ministerial-level agencies; provincial-level Departments of Planning and Investment shall post documents promulgated by provincial-level People’s Councils, provincial-level People’s Committees or provincial-level People’s Committee chairpersons;

dd/ Investors shall post and update information on their capacity and experience on the database on investors specified at Point g, Clause 1, Article 9 of the PPP Law;

e/ Agencies settling complaints and denunciations shall provide information on complaint settlement decisions or decisions on handling of denounced violations specified at Point h, Clause 1, Article 9 of the PPP Law to the Ministry of Planning and Investment for posting. To-be-posted contents must comply with the law on complaints and denunciations;

g/ Agencies settling petitions or handling violations shall post results of settlement of petitions in investor selection or decisions on handling of violations of regulations on PPP investment specified at Point h, Clause 1, Article 9 of the PPP Law.

2. Time limit for posting information on the Vietnam National E-Procurement System:

a/ For notices of invitation to prequalification or notices of invitation of bids specified at Point b, Clause 1, Article 9 of the PPP Law, bid solicitors shall, based on the project implementation progress, determine a time limit for posting information on the Vietnam National E-Procurement System;

b/ For shortlists or investor selection results specified at Point b, Clause 1, Article 9 of the PPP Law, bid solicitors responsible for posting information shall ensure that the time limit for posting information is 10 days from the date of issuance of shortlists or documents on investor selection results;

c/ For information specified at Points a, c, d and dd, Clause 1, Article 9 of the PPP Law, agencies or organizations responsible for posting information shall ensure that the time limit for posting information is 10 days from the date of issuance of relevant documents.

3. For information classified as state secrets, their disclosure must comply with the law on protection of state secrets.

4. Notices of invitation to international prequalification, notices of invitation to international bids, and information on the change (if any) of the time of bid closing specified at Point b, Clause 1, Article 9 of the PPP Law shall be posted in Vietnamese and English on the Vietnam National E-Procurement System and websites of ministries, central agencies, other agencies or provincial-level People’s Committees.

Article 5. Information system and databases on PPP

1. The information system on PPP is an information technology system developed and managed by the Ministry of Planning and Investment for unified management of information on PPP, including information on PPP investment activities, databases on PPP on the Vietnam National E-Procurement System, and other relevant information.

2. Databases on PPP on the Vietnam National E-Procurement System include:

a/ Database on PPP projects;

b/ Database on PPP project contracts;

c/ Database on PPP investors;

d/ Other relevant databases on PPP.

3. Development, management and exploitation of databases on PPP:

a/ Databases on PPP shall have their information security and data integrity ensured and compatibility and capability of information integrity and receipt between databases on PPP and other information systems and databases of state agencies shall be secured;

b/ State management agencies may access and exploit databases on PPP according to their assigned functions and tasks;

c/ Organizations and individuals may exploit databases on PPP under guidance of the Ministry of Planning and Investment if they so wish.

4. Funding for development, management and upgrading of the information system on PPP and databases on PPP shall be included in annual state budget estimates of the Ministry of Planning and Investment and other lawful funding sources (if any).

Article 6. Reporting on PPP investment activities

1. Annual reports on PPP investment activities of ministries, central agencies, other agencies and provincial-level People’s Committees shall be sent to the Ministry of Planning and Investment before March 31 of the year following the reporting year. The Ministry of Planning and Investment shall receive, manage, evaluate and summarize information on PPP investment activities and report thereon to the Prime Minister on an annual basis.

2. A report mentioned in Clause 1 of this Article must have the following principal contents:

a/ Actual implementation of PPP projects: basic information on PPP projects; project preparation and investor selection progress; and actual performance of PPP project contracts;

b/ Issuance of documents guiding and directing the implementation of PPP investment activities;

c/ Arrangement of personnel for implementation of PPP investment activities;

d/ Achieved results, problems, difficulties, challenges, causes, and proposed solutions.

3. Reports mentioned in Clause 1 of this Article shall be sent:

a/ Through correspondence channel; and,

b/ Via the Vietnam National E-Procurement System according to the roadmap specified at Point b, Clause 1, Article 93 of this Decree.

4. Based on reports on investment monitoring and evaluation carried out by PPP project enterprises under the Government’s regulations on investment monitoring and evaluation, contract-signing agencies shall summarize and report on performance of PPP project contracts to ministries, central agencies, other agencies or provincial-level People’s Committees. A report on performance of a PPP project contract must have the following principal contents:

a/ Schedule of performance of the PPP project contract;

b/ Mobilization and disbursement of funding sources of the project, including state funds (if any) of the project, equity of investor, loans, and funds raised through issuance of corporate bonds (if any);

c/ Actual performance of obligations by the contract-signing agency and investor or PPP project enterprise under the contract;

d/ Actual turnover of the PPP project; value of the increased amount (if any) in turnover shared by the PPP project enterprise with the State; value of the decreased amount (if any) in turnover already or expected to be paid by the State to the PPP project enterprise;

dd/ Estimated expenses to be borne by the State during 3 years following the reporting year;

e/ Difficulties arising in the course of contract performance or matters arising not as anticipated, affecting the parties’ performance of contractual obligations or leading to modification of the project contract; proposal of remedial measures or solutions for limiting negative impacts on the project.

Chapter II

PPP PROJECT APPRAISAL COUNCILS, CONSULTANCY FOR VERIFICATION, EXPENSES FOR VERIFICATION AND APPRAISAL OF PPP PROJECTS

Section 1

PPP PROJECT APPRAISAL COUNCILS

Article 7. State Appraisal Council

The formation, organization, operation, responsibilities and powers of the State Appraisal Council for PPP projects must comply with the Government’s regulations on national important projects.

Article 8. Formation and operation organization of interdisciplinary appraisal councils

1. An interdisciplinary appraisal council shall be formed under the Prime Minister’s decision for each project at the proposal of the Ministry of Planning and Investment. When necessary, the Ministry of Planning and Investment shall consult ministries, ministerial-level agencies and related agencies on a draft decision on formation of an interdisciplinary appraisal council before submitting it to the Prime Minister.

2. An interdisciplinary appraisal council shall be composed of the chairperson, vice chairpersons and other members. The chairperson of an interdisciplinary appraisal council is the Minister of Planning and Investment. Vice chairpersons and other members of such a council are representatives of leaders of related ministries and agencies.

3. The standing body of an interdisciplinary appraisal council is the Ministry of Planning and Investment which is assigned to perform the tasks specified in Article 14 of this Decree.

4. An interdisciplinary appraisal council shall automatically disband after having completed the appraisal task.

Article 9. Formation and operation organization of grassroots-level appraisal councils

1. A grassroots-level appraisal council shall be formed under a decision of a minister, the head of a central agency or another agency or the chairperson of a provincial-level People’s Committee for each project at the proposal of the standing body of the grassroots-level appraisal council.

2. A grassroots-level appraisal council shall be composed of the chairperson, vice chairpersons and other members.

3. The standing body of a grassroots-level appraisal council is an organization or a unit having the function of managing PPP investment or planning-finance at a ministry, central agency or another agency, or a provincial-level Department of Planning and Investment which is assigned to perform the tasks specified in Article 14 of this Decree.

4. A grassroots-level appraisal council shall automatically disband after having completed the appraisal task.

Article 10. Responsibilities, powers and operation principles of interdisciplinary appraisal councils and grassroots-level appraisal councils

1. Interdisciplinary appraisal councils and grassroots-level appraisal councils shall perform the tasks specified at Points b and c, Clause 1, Article 6 of the PPP Law.

2. An appraisal council has the following powers:

a/ To consider and decide on matters concerning appraisal contents and plans and other relevant matters in the course of appraisal of prefeasibility study reports or feasibility study reports of PPP projects;

b/ To request competent agencies to provide documents serving the appraisal task.

3. Operation principles of an appraisal council:

a/ The council shall work on a collegial basis and under direction of its chairperson;

b/ A meeting of the council shall be regarded as lawful when it is attended by at least 50% of its total members (including also authorized persons);

c/ Conclusions approving appraisal contents shall be voted for by at least 50% of the council’s members (including members present at the meeting and members sending their votes). In case votes for and votes against among the council’s members are equal, appraisal contents shall be approved based on the vote of the council chairperson;

d/ The final conclusion approving the appraisal report shall be voted for by at least two-thirds of the council’s total members (including members present at the meeting and members sending their votes).

Article 11. Responsibilities and powers of the chairperson of an interdisciplinary appraisal council or the chairperson of a grassroots-level appraisal council

1. To consider and approve an appraisal plan and other relevant matters in the course of appraisal of a PPP project after the council gives opinions and votes for; to decide to convene meetings of the council; to preside over meetings; to assign tasks to vice chairpersons and members of the council.

2. To decide to form an appraisal experts’ team and other assisting teams of the council based on job requirements of each project.

3. When necessary, to authorize a vice chairperson to convene and preside over meetings of the council.

4. To decide on selection of PPP project verification consultants under Article 15 of this Decree.

Article 12. Responsibilities and powers of vice chairpersons of an interdisciplinary appraisal council or vice chairpersons of a grassroots-level appraisal council

1. To assist the council chairperson in directing activities of the council; to monitor and perform tasks of the council as assigned by the council chairperson; to regularly report on progress and results of performance of appraisal work of the council.

2. To assist the council chairperson in considering and evaluating repots on professional matters and other activities of the council.

Article 13. Responsibilities and powers of members of an interdisciplinary appraisal council or members of a grassroots-level appraisal council

1. To give opinions on appraisal contents under appraisal plans approved by the council chairperson.

2. To mobilize manpower, working means and research facilities under their management to perform their assigned tasks.

3. To attend all meetings of the council, exchange and give opinions on contents put for consideration and appraisal, and vote on conclusions of the council. In special cases in which a member is unable to attend a meeting, he/she shall notify such in writing and authorize a competent representative to attend the meeting. Members of the council may reserve their appraisal opinions.

4. To take responsibility for professional matters of agencies of which they are representatives as assigned by the council chairperson.

Article 14. Tasks of the standing body of an interdisciplinary appraisal council or the standing body of a grassroots-level appraisal council

1. To formulate appraisal plans according to the form provided in Appendix I to this Decree for submission to the council chairperson for approval.

2. To mobilize its own manpower and facilities, and coordinate with related agencies and verification consultants in helping the council chairperson organize the performance of the appraisal task and common activities of the council, specifically as follows:

a/ To receive and examine project dossiers; to send project dossiers to the council’s members and related agencies and units, ensuring a reasonable time limit for the council’s members to carry out appraisal as specified in Clause 1, Article 18 or Clause 1, Article 26 of this Decree;

b/ To prepare contents required for appraisal under appraisal plans for sending to the council’s members;

c/ To prepare contents required by the council’s members for dossier supplementation and modification in the course of appraisal;

d/ To organize the selection of PPP project verification consultants when necessary;

dd/ To summarize opinions of the council’s members and propose matters that need to be solved to the council chairperson for consideration and decision in the course of appraisal;

e/ To make draft appraisal reports of the council;

g/ To carry out procedures for payment of appraisal and verification expenses;

h/ To perform other tasks assigned by the council.

Section 2

SELECTION OF VERIFICATION CONSULTANTS, VERIFICATION AND APPRAISAL EXPENSES

Article 15. Selection of verification consultants

1. A verification consultant may be a domestic or foreign organization or individual or a joint-name entity of domestic and foreign consultants (below collectively referred to as verification consultant) and shall be selected to perform one or several specific job(s) involved in the appraisal task.

2. The selection of verification consultants must comply with the bidding law, specifically as follows:

a/ In case of forming an appraisal council, the council chairperson shall discharge responsibilities of a competent person and the council’s standing body shall discharge responsibilities of the project owner or bid solicitor;

b/ In case of assigning an attached unit to perform the appraisal task, a minister, the head of a central agency or another agency, or the chairperson of a provincial-level People’s Committee shall discharge responsibilities of a competent person and the attached unit shall discharge responsibilities of the project owner or bid solicitor.

3. A contract on hire of verification consultants shall be signed between:

a/ The standing body of the appraisal council, in case of forming an appraisal council, or an attached unit assigned the appraisal task;

b/ The PPP project preparation unit or focal-point agency receiving project proposal dossiers as specified at Point b, Clause 2, Article 22 of this Decree; and,

c/ The selected verification consultancy contractor.

Article 16. Verification and appraisal expenses

1. Verification expenses:

a/ Norms of verification expenses shall be applied in accordance with relevant specialized laws. If a specialized law has no provision on verification expenses, such expenses shall be determined on the basis of expense estimation;

b/ Norms or estimates of expenses for verification of prefeasibility study reports are equal to norms or estimates of expenses for verification of feasibility study reports in accordance with law.

2. Appraisal expenses:

a/ Appraisal expenses include remuneration for members, standing body and other assisting teams (if any) of the appraisal council; expenses for organization of meetings, stationery, and field survey (if any), other relevant expenses, and contingency amounts, excluding the verification expenses specified in Clause 1 of this Article;

b/ Appraisal expenses are equal to 20% of norms or estimates of verification expenses;

c/ Appraisal expenses shall be set in package for persons participating in appraisal, and standing body and other assisting teams (if any) of the appraisal council, and other expenses for appraisal work.

3. The expenses mentioned in Clauses 1 and 2 of this Article shall be allocated from public investment funds or other lawful funding sources, and paid by PPP project preparation units under contracts on hire of verification consultants and at the request of the standing body of the appraisal council.

Chapter III

PREPARATION OF PPP PROJECTS

Section 1

PREPARATION AND APPRAISAL OF PREFEASIBILITY STUDY REPORTS, DECISION ON PPP PROJECT INVESTMENT POLICY

Article 17. Preparation and appraisal of prefeasibility study reports

1. Prefeasibility study reports shall be prepared under Clause 3, Article 14 of the PPP Law according to Form No. 01 provided in Appendix II to this Decree.

2. In case a project has factors requiring satisfaction of requirements on national defense, national security or protection of state secrets, or has special factors requiring application of innovative solutions in order to shorten the period for implementation and completion of the construction of infrastructure facilities and systems for purposes of energy conservation and environmental protection, for projects that are highly likely to exert adverse environmental impacts as provided by the law on environmental protection, its prefeasibility study report must clearly state such factors for consideration upon appraisal and approval of investment policy.

3. Reports on appraisal of prefeasibility study reports shall be made under Clause 2, Article 15 of the PPP Law according to Form No. 02 provided in Appendix II to this Decree.

4. For PPP projects using public investment funds, the competence for and contents of appraisal of funding sources and fund-balancing capacity must comply with Articles 19 and 20 of this Decree.

5. The use of the following funding sources must comply with the Government’s regulations on the financial mechanism applicable to PPP projects:

a/ Funds for regular expenditures that are used as payments to PPP project enterprises;

b/ Funds from lawful revenue sources that are used as payments to PPP project enterprises;

c/ State budget contingency funds that are used as payments for decreased amounts in turnover.

Article 18. Time limit and dossiers for appraisal of project investment policy

1. The time limit for appraisal of a prefeasibility study report of a PPP project shall be counted from the date the project appraisal council or a 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 a verification consultant, specifically as follows:

a/ Forty-five days, for projects subject to decision on investment policy by the Prime Minister;

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

2. A dossier of request for appraisal with a quantity of 10 sets shall be sent to the PPP project appraisal council or a unit assigned the appraisal task which must comprise the documents specified in Clause 1, Article 15 of the PPP Law; when necessary, a competent agency shall be requested to increase the quantity of dossiers.

Article 19. Competence to appraise funding sources and capacity to balance public investment funds for PPP projects

1. The Ministry of Planning and Investment shall assume the prime responsibility for appraising funding sources and capacity to balance central budget funds for PPP projects subject to decision on investment policy by:

a/ The National Assembly; or,

b/ The Prime Minister.

2. Ministers or heads of central agencies or other agencies shall assign specialized agencies managing public investment to assume the prime responsibility for appraising funding sources and fund-balancing capacity for projects subject to decision on investment policy by the former.

3. Chairpersons of provincial-level People’s Committees shall assign provincial-level specialized agencies managing public investment to assume the prime responsibility for appraising funding sources and fund-balancing capacity:

a/ For local budget funds, for PPP projects subject to decision on investment policy by the National Assembly or Prime Minister;

b/ For PPP projects subject to decision on investment policy by provincial-level People’s Councils.

4. For PPP projects using investment capital from lawful revenue sources of public non-business units, heads of these units shall assign their attached divisions to assume the prime responsibility for appraising funding sources and fund-balancing capacity for such investment capital and send them to PPP project appraisal councils or units assigned to appraise PPP projects for summarization.

Article 20. Contents of appraisal of funding sources and capacity to balance public investment funds for PPP projects

1. The appraisal of funding sources and capacity to balance public investment funds constitutes a content of appraisal of prefeasibility study reports of PPP projects.

2. PPP project appraisal councils or units assigned to appraise prefeasibility study reports of PPP projects shall consult agencies assigned to appraise funding sources and capacity to balance funds for projects in the course of appraisal of prefeasibility study reports of projects.

3. The appraisal of funding sources and capacity to balance public investment funds for PPP projects covers assessment of conformity of the following principal contents:

a/ Use purposes of fund amounts;

b/ Fund allocation schedule under annual plans;

c/ Funding sources and capacity to balance funds within total public investment funds included in medium-term public investment plans covered by the state budget which are approved by the National Assembly and assigned by the Prime Minister to ministries, central agencies and localities in the project implementation medium term and public investment fund limits under medium-term public investment plans of the subsequent term as provided by the Law on Public Investment; total public investment funds under medium-term plans covered by the state budget and increased amounts in annual state budget revenues (if any) decided by provincial-level People’s Councils;

d/ Fund amounts to be allocated according to contract performance progress as payments to PPP project enterprises in case projects under BTL or BLT contracts are expected to be implemented for more than 2 consecutive periods of medium-term public investment plans.

4. For PPP projects using investment capital from lawful revenue sources of public non-business units, units appraising funding sources and fund-balancing capacity shall evaluate the contents specified at Points a and b, Clause 3 of this Article, depending on revenue sources of public non-business units.

Article 21. Decisions on PPP project investment policy

1. A decision on investment policy for a PPP project must have the contents specified in Article 17 of the PPP Law and shall be made according to Form No. 03 provided in Appendix II to this Decree.

2. Authorities competent to approve decisions on investment policy shall apply competitive negotiation as a form of investor selection for:

a/ Projects applying high technologies on the list of high technologies prioritized for development investment as specified in the law on high technologies;

b/ Projects applying advanced technologies, new technologies or clean technologies on the list of technologies eligible for transfer promotion as specified in the law on technology transfer (below referred to as projects applying new technologies).

3. In case a PPP project has factors requiring satisfaction of requirements on national defense, national security or protection of state secrets, or has special factors requiring application of innovative solutions to shorten the period of implementation and completion of construction of infrastructure facilities and systems for purposes of energy conservation and environmental protection, for projects that are highly likely to exert adverse environmental impacts as provided by the law on environmental protection, contents of a decision on investment policy must clearly state such factors for use as a basis for making decision on survey of interest of investors under Article 25 of this Decree.

4. Except the cases specified at Points a, b and c, Clause 3, Article 4 of the PPP Law, the making of decision on investment policy for a PPP project to be implemented in two or more provincial-level administrative units is as follows:

a/ Provincial-level People’s Committees of localities where the project is to be implemented shall report to provincial-level People’s Councils to get the latter’s approval of the proposal for implementation of the project. Such proposal must have the following contents: name, size and location of the project and type of project contract, preliminary total investment, the State’s capital amount in the project and division of responsibilities for payment from the budget funds of each locality. Based on the approval of the provincial-level People’s Councils, the provincial-level People’s Committees shall reach agreement with the related line ministry on assigning a local administration to act as a competent agency;

b/ The competent agency mentioned at Point a of this Clause shall organize project preparation and submit to the Prime Minister for decision the project investment policy in accordance with Clause 2, Article 13 of the PPP Law and name of the competent agency in accordance with Clause 3, Article 5 of the PPP Law;

c/ In case funds for compensation, ground clearance, support and resettlement, or support for construction of makeshift works are allocated from local budgets, provincial-level People’s Committees shall reach agreement with one another and report to the Prime Minister on division of the project into component projects for compensation, ground clearance, support and resettlement, or support for construction of makeshift works for each locality to implement them in accordance with the law on public investment.

5. For PPP projects eligible for application of the mechanism for sharing of decreased amounts in turnover, a decision on investment policy must clearly state that funding sources to be used for payment come from central or local budget contingency funds.

6. The time limit for approving a decision on investment policy for a project, counting from the date of receipt of a complete and valid dossier specified in Article 16 of the PPP Law, is:

a/ Twenty days, for projects subject to decision on investment policy by the Prime Minister;

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

7. For PPP projects using public investment funds, based on decisions on investment policy approved by competent authorities, public investment funds used in these projects shall be included in medium-term public investment plans.

Article 22. Decisions on investment policy for PPP projects proposed by investors

1. An investor shall send a written proposal on implementation of a PPP project to a competent agency specified in Clause 1, Article 5 of the PPP Law. In case a competent agency is not yet identifiable, the investor shall seek instructions from the state management agency in charge of PPP investment of the locality where the project is to be implemented. If it is still impossible to identify a competent agency after the investor works with the local-level state management agency in charge of PPP investment, the investor shall contact the central-level state management agency in charge of PPP investment.

2. A document approving an investor’s preparation of a prefeasibility study report must have the following contents:

a/ Name of the investor assigned to prepare the prefeasibility study report;

b/ Time limit and place for submission of the project proposal dossier; agencies or units assuming the prime responsibility for receiving the project proposal dossier and carrying out procedures for submission of investment policy for appraisal and approval;

c/ Provision stating that the investor shall bear all expenses and risks in case the project proposal dossier is rejected.

For PPP projects applying high technologies or new technologies, the dossier must contain a document approving the determination of expenses for preparation of a prefeasibility study report and principles of handling a case in which the selected investor is not the project-proposing investor. In this case, the selected investor shall refund expenses for preparation of a prefeasibility study report to the project-proposing investor;

d/ Responsibilities of, and method of coordination among, related agencies in guiding the investor to prepare a prefeasibility study report;

dd/ Other relevant contents.

3. The investor obtaining approval specified in Clause 2 of this Article shall prepare a prefeasibility study report under Clauses 1 and 2, Article 17 of this Decree.

4. Investment policy for investor-proposed projects shall be appraised and decided under Clause 2, Article 27 of the PPP Law, and Clauses 3 and 4, Article 17, and Articles 18, 19, 20 and 21, of this Decree.

5. In case an investor proposes using state capital for a PPP project, a competent agency shall assign an agency or unit specified at Point b, Clause 2 of this Article to guide the investor in completing the content on use of state capital in the prefeasibility study report as a basis for organizing appraisal of funding sources and fund-balancing capacity under Clauses 4 and 5, Article 17 of this Decree.

Article 23. PPP projects involving works subject to contest for selection of architectural plans

1. For a PPP project that involves a work subject to contest for selection of an architectural plan under the law on architecture:

a/ Its prefeasibility study report must have commentaries on the legal ground for, and necessity, form and other contents of, the contest for use as a basis for deciding on project investment policy;

b/ Expenses for organizing a contest for selection of an architectural plan shall be determined under current regulations applicable to projects using state budget funds as guided by the Ministry of Construction, and included in total investment of the project. In case the project is proposed by an investor, the investor shall bear expenses for organizing a contest for selection of an architectural plan.

2. After deciding on project investment policy, a competent agency shall organize a contest for selection of an architectural plan in accordance with the law on architecture.

Section 2

PREPARATION AND APPRAISAL OF FEASIBILITY STUDY REPORTS, APPROVAL OF PPP PROJECTS

Article 24. Preparation and appraisal of feasibility study reports for PPP projects

1. Feasibility study reports for PPP projects shall be prepared under Clause 2, Article 19 of the PPP Law according to Form No. 01 provided in Appendix III to this Decree.

2. In case of management and use of public investment funds in PPP projects under Point a, Clause 5, Article 70 of the PPP Law, a feasibility study report must identify mini-projects as for the identification of bidding packages in accordance with the laws on construction and bidding. In the course of construction of infrastructure facilities and systems, the selection of contractors for performance of jobs under mini-projects must comply with regulations on selection of contractors issued by project enterprises in accordance with Article 58 of the PPP Law.

3. Reports on appraisal of feasibility study reports shall be made under Clause 2, Article 20 of the PPP Law according to Form No. 02 provided in Appendix III to this Decree.

Article 25. Survey of interest of investors in PPP projects

1. In the course of preparation of a feasibility study report for a PPP project, a competent agency shall carry out survey of interest of investors and lenders (if any), except PPP projects for which the Prime Minister approves investor appointment under Clause 2, Article 39 of the PPP Law. Survey for projects proposed by investors shall be carried out after investors finalize draft feasibility study reports and send them to competent agencies.

2. Procedures for survey of interest of investors:

a/ A competent agency shall post a notice of survey in English and Vietnamese on the Vietnam National E-Procurement System and websites (if any) of ministries, central agencies, other agencies and provincial-level People’s Committees; a notice of survey in Vietnamese, for projects in sectors or trades not open to market access for foreign investors in accordance with the law on investment, and projects required to satisfy requirements on national defense, national security or protection of state secrets specified at Points a and b, Clause 3, Article 31 of the PPP Law;

b/ An interest-showing investor shall register its/his/her interest in implementation of a project on the Vietnam National E-Procurement System. Within the time limit for interest registration, the competent agency may organize a conference to introduce, and exchange opinions with investors on, contents related to the project;

c/ Results of survey of interest of investors serve as a basis for the competent agency to consider and decide on prequalification and selection of domestic or international investors. Before a project is approved, the project preparation unit shall, when necessary, report to the competent agency for the latter to permit organization of prequalification under Clause 2, Article 28 of the PPP Law and determine the name of the bid solicitor and time for organizing prequalification.

3. Except the projects specified in Clause 4 of this Article, the survey of interest of investors must comply with Clause 2 of this Article and a notice of survey of interest shall be made according to Form No. 01 provided in Appendix IV to this Decree. A project preparation unit or agency or unit assuming the prime responsibility for receiving the project proposal dossier (for an investor-proposed project) shall summarize the number of investors registering their interest in project implementation in order to determine the form of investor selection under Clause 2, Article 34 of this Decree.

4. In case a project has special factors requiring application of innovative solutions to shorten the period of implementation and completion of the construction of infrastructure facilities and systems for purposes of energy conservation and environmental protection, for projects that are highly likely to exert adverse environmental impacts as provided by the law on environmental protection, the survey of interest of investors shall be carried out according to procedures specified in Clause 2 of this Article and a notice of survey of interest shall be made according to Form No. 02 provided in Appendix IV to this Decree. The project preparation unit or agency or unit assuming the prime responsibility for receiving the project proposal dossier (for an investor-proposed project) shall evaluate dossiers of expression of interest of investors for drawing up a shortlist and determining a form of investor selection under Point a, Clause 3, Article 34 of this Decree.

5. From the date a notice of survey of interest is posted on the Vietnam National E-Procurement System under Point a, Clause 2 of this Article, the time limit for investors or lenders (if any) to register their interest in project implementation is that stated in the notice of survey of interest but must be:

a/ Thirty days, for the projects specified in Clause 3 of this Article;

b/ Forty-five days, for the projects specified in Clause 4 of this Article.

Article 26. Time limit and dossiers for appraisal of feasibility study reports

1. The time limit for appraisal of a feasibility study report of a PPP project shall be counted from the date the appraisal council or 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/ Ninety days, for projects subject to approval by the Prime Minister;

b/ Sixty days, for projects subject to approval by ministers, heads of central agencies or other agencies, or chairpersons of provincial-level People’s Committees.

2. A dossier for appraisal of a feasibility study report shall be sent to the appraisal council or unit assigned the appraisal task with a quantity of 10 sets, which must comprise the documents specified in Clause 1, Article 20 of the PPP Law. When necessary, the quantity of dossier sets may be increased to meet practical requirements.

Article 27. Approval of PPP projects

1. A decision on approval of a PPP project must have the contents specified in Article 23 of the PPP Law and shall be made according to Form No. 03 provided in Appendix III to this Decree.

2. The time limit for approval of a PPP project, counting from the date of receipt of a complete and valid dossier specified in Article 22 of the PPP Law, is:

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

b/ Fifteen days, for projects subject to approval by ministers, heads of central agencies or other agencies, or provincial-level People’s Committees.

3. For a PPP project applying high technologies or new technologies:

a/ After approving investor selection results, a competent agency shall assign the selected investor to prepare a feasibility study report under Clause 1, Article 24 of this Decree. In case the project uses public investment funds as state capital in support of the construction of infrastructure facilities and systems, its feasibility study report must state the method of management and use of such funds under Point b, Clause 5, Article 70 of the PPP Law;

b/ The assignment for the investor to prepare a feasibility study report under Point a of this Clause shall be included in a written agreement between the competent agency and the investor;

c/ The above agreement must have the following contents: purposes, requirements and expenses for preparation of the feasibility study report; expenses for hiring independent consultants to verify the report; establishment of the project enterprise; responsibility of the project enterprise for preparation of the report and principles of handling of expenses for preparation of the report in case the report is disapproved or the project is ineligible for contract negotiation and signing;

d/ The investor-prepared feasibility study report shall be appraised under Clause 3, Article 24, and Article 26, of this Decree; and approved under Articles 21, 22 and 23 of the PPP Law and Clauses 1 and 2 of this Article.

Article 28. Approval of PPP projects proposed by investors

1. After a project has its investment policy decided, a competent agency shall assign the investor to prepare a feasibility study report under Clause 1, Article 24 of this Decree, except PPP projects applying high technologies or new technologies.

2. The assignment for the investor to prepare a feasibility study report under Clause 1 of this Article shall be stated in a written agreement between the competent agency and the investor. Such agreement must have the following contents: purposes, requirements and expenses for preparation of the feasibility study report; expenses for hiring independent consultants to verify the report; and principles of handling in the following cases:

a/ If the feasibility study report is disapproved or no investor is selected for project implementation, the project-proposing investor shall bear all risks and expenses;

b/ If the project-proposing investor is not selected after the investor selection is organized, the selected investor shall refund expenses for preparation of the prefeasibility study report and feasibility study report to the project-proposing investor.

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.

4. Investor-proposed projects shall be approved under Point c, Clause 3, Article 27 of the PPP Law, and Clauses 1 and 2, Article 27 of this Decree.

5. Selected investors shall refund expenses for preparation of prefeasibility study reports and feasibility study reports under Clause 6, Article 27 of the PPP Law and Point b, Clause 2 of this Article before signing PPP project contracts.

Chapter IV

INVESTOR SELECTION

Section 1

GENERAL PROVISIONS ON INVESTOR SELECTION

Article 29. Assurance of competition in investor selection

An investor participating in bidding shall be regarded as legally and financially independent from a consultancy contractor, competent agency, contract-signing agency, bid solicitor or another investor as specified in Article 30 of the PPP Law when satisfying the following conditions:

1. From the time of distribution of dossiers of invitation to prequalification, dossiers of invitation to negotiation or bidding dossiers, the investor participating in bidding have no share or contributed capital amount with:

a/ A contractor providing consultancy for preparation of prefeasibility study reports or feasibility study reports, except projects proposed by investors;

b/ A contractor providing consultancy for verification of prefeasibility study reports or feasibility study reports;

c/ A contractor providing consultancy for preparation and appraisal of dossiers of invitation to prequalification, dossiers of invitation to negotiation or bidding dossiers; evaluation of prequalification participation dossiers, dossiers for participation in negotiation or bid dossiers; or appraisal of prequalification results or investor selection results;

d/ A contractor providing consultancy for contract performance supervision or consultancy for inspection of PPP projects.

2. From the time of distribution of dossiers of invitation to prequalification, dossiers of invitation to negotiation or bidding dossiers, the investor participating in bidding and consultancy contractor specified in Clause 1 of this Article each owns no more than 30% of shares, total voting shares or contributed capital amounts of another organization or individual. For a joint-name investor or consultancy contractor, the holding rate shall be determined as follows:

a/ The holding rate of another organization or individual and joint-name investor shall be determined according to the following formula:

Of which:

X_i is the holding rate of capital or voting shares of an organization or individual in the investor participating in bidding for time i.

Y_i is the equity contribution ratio of joint-name investor No. i as stated in the joint-name agreement.

n is the number of the joint-name members.

b/ The holding rate of another organization or individual and joint-name consultancy contractor shall be determined according to the following formula:

Of which:

X_i is the holding rate of capital or voting shares of an organization or individual in consultancy contractor No. i as stated in the joint-name agreement.

Y_i is the responsibility division ratio stated in joint-name agreement No. i.

n is number of the joint-name members.

3. For an investor organized after the parent company-subsidiary model in accordance with the law on enterprises that participates in bidding for a PPP project:

a/ The parent company or subsidiary or the parent company and joint-name subsidiaries may participate in only one prequalification participation dossier, dossier for participation in negotiation or bid dossier, for projects subject to open bidding and competitive negotiation under Clause 1, Article 38 of the PPP Law;

b/ The investor participating in bidding and consultancy contractor performing one of the consultancy jobs specified in Clause 1 of this Article have no parent company-subsidiary relation from the time of distribution of dossiers of invitation to prequalification or bidding dossiers or from the time the consultancy contractor signs a contract on performance of consultancy jobs, whichever comes first.

4. From the time of distribution of dossiers of invitation to prequalification, dossiers of invitation to negotiation or bidding dossiers, the investor participating in bidding and competent agency, contract-signing agency or bid solicitor owns no more than 50% of shares, total voting shares or contributed capital amounts of each other. For a joint-name investor participating in bidding, the holding rate shall be determined according to the following formula:

Of which:

X_i is the holding rate of capital or voting shares of a competent agency, contract-signing agency or bid solicitor in joint-name member No. i.

Y_i is the equity contribution ratio of joint-name member No. i as stated in the joint-name agreement.

n is the number of the joint-name members.

5. For projects subject to investor appointment under Clause 1, Article 39 of the PPP Law, investors are not required to satisfy the requirement on competition assurance specified at Point a, Clause 1, and Clause 4, of this Article.

Article 30. Incentives in investor selection     

1. Subjects entitled to incentives and incentive levels

a/ Investors having their project proposal dossiers approved are entitled to a 5% incentive upon the evaluation of bid dossiers;

b/ Investors with commitments to employing domestic contractors for project implementation with the value of jobs to be performed accounting for at least 25% of the total investment of a project are entitled to a 3% incentive upon the evaluation of bid dossiers;

c/ When participating in selection of international investors, investors with commitments to using domestic commodities, supplies, materials and equipment for project implementation with the value accounting for at least 25% of the total investment of a project are entitled to a 2% incentive upon the evaluation of bid dossiers.

2. Principles of incentive enjoyment

a/ Investors participating in bidding and entitled to more than one incentive may enjoy the highest incentive as stated in bidding dossiers;

b/ In case bid dossiers are ranked equal after the calculation of incentives, priority shall be given to investors having their project proposals approved;

c/ In case investors entitled to the incentive specified at Point b or c, Clause 1 of this Article are selected for contract signing but fail to fulfill their commitments stated in bid dossiers and PPP project contracts, they shall be fined under PPP project contracts. In this case, PPP project contracts must contain clauses on specific fines in proportion to incentives enjoyable by investors upon the evaluation of bid dossiers.

3. Methods of calculation of incentives

a/ In case of application of product prices and public-service charges for comparison and ranking, product prices and service charges of an investor entitled to incentives shall be calculated according to the following formula:

G_GTSS = G_GT - G_GT x M_UD %

In which:

- G_GTSS is product prices or service charges used for comparison and ranking of the investor entitled to incentives;

- G_GT is product prices or service charges of the investor entitled to incentives as proposed in the bid dossier;

- M_UD is the incentive level enjoyable by the investor under Clause 1 of this Article.

b/ In case of application of the criterion of state capital as support for construction of infrastructure facilities and systems for comparison and ranking, the value of such state capital amount of an investor entitled to incentives shall be calculated according to the following formula:

V_GTSS = V_GT - V_GT x M_UD %

In which:

- V_GTSS is the value of state capital amount as support for construction of infrastructure facilities and systems for comparison and ranking of the investor entitled to incentives;

- V_GT is the value of state capital amount as support for construction of infrastructure facilities and systems of the investor entitled to incentives as proposed in the bid dossier;

- M_UD is the incentive level enjoyable by the investor under Clause 1 of this Article.

c/ In case of application of the criterion of social interests or state interests for comparison and ranking, the amount proposed to be remitted into the state budget or the period of contract performance by an investor entitled to incentives shall be calculated according to the following formula:

T_GTSS = T_GT + T_GT x M_UD %

In which:

- T_GTSS is the value of the amount proposed to be remitted into the state budget for comparison and ranking of the investor entitled to incentives;

- T_GT is the value of the amount proposed to be remitted into the state budget of the investor entitled to incentives as proposed in the bid dossier;

- M_UD is the incentive level enjoyable by the investor under Clause 1 of this Article.

Or:

T_GTSS = T_GT - T_GT x M_UD %

In which:

- T_GTSS is the period of contract performance for comparison and ranking of the investor entitled to incentives;

- T_GT is the period of contract performance by the investor entitled to incentives as proposed in the bid dossier;

- M_UD is the incentive level enjoyable by the investor under Clause 1 of this Article.

d/ In case of application of combined criteria, an investor will be entitled to incentives in proportion to the ratio obtained by the combination method but the total incentive value must not exceed 5%.

Article 31. Time limits in the course of investor selection

1. Dossiers of invitation to prequalification shall be distributed simultaneously with notices of invitation to prequalification via the Vietnam National E-Procurement System.

2. Bidding dossiers (in case of open bidding without prequalification) and dossiers of invitation to negotiation (in case of competitive negotiation specified in Clause 2 or 3, Article 38 of the PPP Law) shall be distributed simultaneously with notices of invitation to bidding via the Vietnam National E-Procurement System.

3. Bidding dossiers (in case of open bidding with prequalification or competitive negotiation) shall be distributed within time limits stated in letters of invitation to bidding sent to investors on the shortlist.

4. Bidding dossiers (in case of investor appointment) shall be distributed within time limits stated in letters of invitation to bidding sent to investors proposed to be appointed.

5. The period for preparation of prequalification participation dossiers is at least 30 days counting from the first date of distribution of dossiers of invitation to prequalification to the date of bid closing.

6. For projects subject to open bidding and competitive negotiation under Clause 1, Article 38 of the PPP Law, the period for preparation of bid dossiers is at least 60 days, for selection of domestic investors, or 90 days, for selection of international investors, counting from the first date of distribution of bidding dossiers to the date of bid closing.

7. For projects subject to competitive negotiation under Clause 2 or 3, Article 38 of the PPP Law:

a/ The period for preparation of dossiers for participation in negotiation is at least 30 days, for selection of domestic investors, or 45 days, for selection of international investors, counting from the first date of distribution of dossiers of invitation to negotiation to the date of bid closing;

b/ The period for preparation of bid dossiers is at least 45 days, for selection of domestic investors, or 60 days, for selection of international investors, counting from the first date of distribution of bidding dossiers to the date of bid closing.

8. For projects subject to investor appointment under Point a, Clause 1, Article 39 of the PPP Law, the period for preparation of bid dossiers is at least 45 days, for selection of domestic investors, or 60 days, for selection of international investors, counting from the first date of distribution of bidding dossiers to the date of bid closing.

9. The validity period of a prequalification participation dossier, dossier for participation in negotiation or bid dossier is the number of days stated in the dossier of invitation to prequalification, dossier of invitation to negotiation or bidding dossier and shall be counted from the date of bid closing to the last date of validity stated in the dossier. The time of bid closing is the deadline for receipt of prequalification participation dossiers, dossiers for participation in negotiation or bid dossiers. The period from the time of bid closing to the end of the date of bid closing is counted as 1 day.

10. A notice of modification of a dossier of invitation to prequalification shall be posted at least 10 days before the date of bid closing; a notice of modification of a dossier of invitation to negotiation or a bidding dossier shall be posted at least 15 days, for selection of domestic investors, or 25 days, for selection of international investors, before the date of bid closing. In case the time for posting of a notice of modification of a dossier of invitation to prequalification, dossier of invitation to negotiation or bidding dossier does not comply with the provision of this Clause, the bid solicitor shall extend the deadline of bid closing correspondingly in compliance with such provision.

11. The time limit for a bid solicitor to send a notice of prequalification results, shortlist or investor selection results to investors participating in bidding by post, fax or email is 5 working days from the date of approval of such results or shortlist.

12. Other time limits in the course of investor selection shall be proposed by project preparation units in prefeasibility study reports or feasibility study reports. Competent agencies shall take responsibility for the progress and quality of activities carried out in investor selection.

Article 32. Expenses in investor selection

1. For selection of domestic investors, the selling price (inclusive of taxes) of a bidding dossier must not exceed VND 20,000,000 (twenty million). For selection of international investors, the selling price (inclusive of taxes) of a bidding dossier must not exceed VND 30,000,000 (thirty million).   

2. Expenses for preparation and appraisal of dossiers of invitation to prequalification; evaluation of prequalification participation dossiers; and appraisal of prequalification results:

a/ The expense for preparation of dossiers of invitation to prequalification is equal to 0.02% of total investment of a project but must be between VND 10,000,000 (ten million) and VND 100,000,000 (one hundred million);

b/ The expense for appraisal of dossiers of invitation to prequalification is equal to 0.01% of total investment of a project but must be between VND 10,000,000 (ten million) and VND 50,000,000 (fifty million);

c/ The expense for evaluation of prequalification participation dossiers is equal to 0.02% of total investment of a project but must be between VND 10,000,000 (ten million) and VND 100,000,000 (one hundred million);

d/ The expense for appraisal of prequalification results is equal to 0.01% of total investment of a project but must be between VND 10,000,000 (ten million) and VND 50,000,000 (fifty million).

3. Expenses for preparation and appraisal of dossiers of invitation to negotiation or bidding dossiers; evaluation of dossiers for participation in negotiation or bid dossiers; and appraisal of investor selection results:

a/ The expense for preparation of dossiers of invitation to negotiation or bidding dossiers is equal to 0.05% of total investment of a project but must be between VND 10,000,000 (ten million) and VND 200,000,000 (two hundred million);

b/ The expense for appraisal of each content of dossiers of invitation to negotiation or bidding dossiers and investor selection results is equal to 0.02% of total investment of a project but must be between VND 10,000,000 (ten million) and VND 100,000,000 (one hundred million);

c/ The expense for evaluation of dossiers for participation in negotiation or bid dossiers is equal to 0.03% of total investment of a project but must be between VND 10,000,000 (ten million) and VND 200,000,000 (two hundred million).

4. For projects with similar contents of which the same competent agency, contract-signing agency and bid solicitor organize the implementation or projects for which investor selection is required to be reorganized, expenses for preparation and appraisal of dossiers of invitation to prequalification; and preparation and appraisal of bidding dossiers must not exceed 50% of the paid amounts for the expenses specified in Clauses 2 and 3 of this Article.

5. Expenses specified in Clauses 2, 3 and 4 of this Article are applicable to cases in which competent agencies, contract-signing agencies and bid solicitors directly perform relevant jobs. For cases in which investor selection consultants are hired to perform the jobs specified in Clauses 2, 3 and 4 of this Article, the determination of expenses shall be based on contents and scope of jobs, period of implementation, capacity and experience of consultants and norms of wages for consultants under regulations, and other factors. In case there are no regulations on norms of wages for consultants, the expense for payment of wages for experts shall be determined on the basis of experience-based statistics on expenses already paid for hired experts for similar projects.

6. The expense for posting of information on investor selection, expense for participation in the Vietnam National E-Procurement System, and the management and use of earnings from such expenses must comply with relevant guidance of the Ministry of Planning and Investment.

7. The expenses specified in Clauses 2, 3, 4, 5 and 6 of this Article shall be included in total investment of projects under Clause 1, Article 73 of the PPP Law.

8. The management and use of earnings and expenses specified in Clauses 1, 2, 3, 4 and 5 of this Article must comply with relevant guidance of the Ministry of Finance.

Article 33. Experts’ teams

1. Experts’ teams composed of capable and experienced individuals shall be formed by bid solicitors to evaluate prequalification participation dossiers, dossiers for participation in negotiation and bid dossiers, and perform other tasks in the course of investor selection. Depending on characteristics and complexity of a project, an experts’ team may be composed of technical, financial, commercial, administrative and legal experts and experts in other related fields.

2. An individual wishing to join an experts’ team for a project must fully satisfy the following conditions:

a/ Possessing a certificate of training or further training in bidding in accordance with the bidding law;

b/ Having professional expertise relevant to the project;

c/ Having foreign language skills meeting requirements of the project;

d/ Being knowledgeable about relevant specific contents of the project;

dd/ Having at least 5 years’ working experience in a field relevant to the project.

3. In case it is necessary to invite the participation of specialized experts, such experts are not required to possess a certificate of training in bidding as specified at Point a, Clause 2 of this Article.

Article 34. Determination of forms of investor selection  

1. Based on results of survey of the interest of investors specified in Clauses 3 and 4, Article 25 of this Decree, a competent agency shall decide to apply forms of investor selection specified in Clause 2 and at Point a, Clause 3 of this Article.

2. The form of open bidding shall be applied in one of the following cases:

a/ International open bidding with prequalification in case at least 6 investors, including at least 1 investor established in accordance with foreign law, register their interest;

b/ Domestic open bidding with prequalification in case at least 6 investors established in accordance with Vietnam’s law register their interest;

c/ International open bidding in case less than 6 investors, including at least 1 investor established in accordance with foreign law, register their interest;

d/ Domestic open bidding in case less than 6 investors established in accordance with Vietnam’s law register their interest.

3. The form of competitive negotiation shall be applied to:

a/ Projects subject to survey under Clause 4, Article 25 of this Decree with no more than 3 investors satisfying project implementation requirements each. In case after the survey, there are more than 3 investors satisfying project implementation requirements, the form of investor selection shall be determined under Clause 2 of this Article;

b/ Projects applying high technologies or new technologies specified in Clause 2 or 3, Article 38 of the PPP Law.

4. The form of investor appointment shall be determined under Clause 1, Article 39 of the PPP Law.

5. For projects applying the form of selection of domestic investors but subject to requirements on promotion of the use of advanced technologies and techniques and international management experience, dossiers of invitation to negotiation and bidding dossiers may provide that domestic investors may enter into a joint-name entity with investors established in accordance with foreign laws or employ their partners being foreign contractors to participate in bidding. In this case, domestic investors must be leading members of the joint-name entity; the language used in investor selection must be Vietnamese.

Article 35. Ratio of value of security for performance of PPP project contracts 

1. For a project with a total investment of up to VND 300 billion, the value of security for contract performance shall be stated in the bidding dossier at a ratio of between 1.5% and 3% of total investment of the project.

2. For a project with a total investment exceeding VND 300 billion, the value of security for contract performance shall be stated in the bidding dossier at a ratio of between 1% and 1.5% of total investment of the project.

Article 36. Detailed process of investor selection for open bidding and competitive negotiation

The detailed process for various forms of investor selection shall be carried out according to the diagrams provided in Sections I, II and III of Appendix V to this Decree, specifically as follows:

1. Selection of shortlists, covering:

a/ For projects subject to open bidding with prequalification under Point a or b, Clause 2, Article 34 of this Decree: Determination of shortlists based on prequalification results under Articles 38 thru 42 of this Decree;

b/ For projects subject to competitive negotiation under Clause 1, Article 38 of the PPP Law: Determination of shortlists based on results of survey of the interest of investors under Clause 4, Article 25 of this Decree;

c/ For projects subject to competitive negotiation under Clause 2 or 3, Article 38 of the PPP Law: Determination of shortlists under Articles 43 thru 46 of this Decree. Based on shortlists, organization of competitive negotiation under Article 47 of this Decree for use as a basis for preparing bidding dossiers.

2. Preparation for investor selection, covering: preparation, appraisal and approval of bidding dossiers under Articles 49 and 50 of this Decree. Particularly for projects subject to competitive negotiation under Clause 1, Article 38 of the PPP Law, in the course of preparing bidding dossiers, bid solicitors shall exchange opinions with investors on shortlists for completion of bidding dossiers under Article 48 of this Decree.

3. Organization of investor selection, covering:

a/ Bid solicitation, distribution, clarification and modification of bidding dossiers; extension of the time limit for submission of bid dossiers under Article 51 of this Decree;

b/ Preparation, submission, receipt, management, modification and/or withdrawal of bid dossiers under Article 52 of this Decree.

4. Evaluation of bid dossiers, covering:

a/ For projects subject to open bidding and competitive negotiation under Clause 1, Article 38 of the PPP Law: Opening and evaluation of dossiers of technical proposals and dossiers of financial-commercial proposals under Articles 53 thru 59 of this Decree;

b/ For projects subject to competitive negotiation under Clause 2 or 3, Article 38 of the PPP Law: Opening and evaluation of bid dossiers under Articles 60 and 61 of this Decree.

5. Submission, appraisal, approval and publicization of investor selection results under Articles 62 and 63 of this Decree.

6. Negotiation, completion and signing of PPP project contracts, and disclosure of information on PPP project contracts under Articles 64 and 65 of this Decree.

Article 37. Detailed process of investor appointment

The detailed process for various forms of investor selection shall be carried out according to the diagrams provided in Sections IV and V of Appendix V to this Decree, specifically as follows:

1. For projects specified at Point a, Clause 1, Article 39 of the PPP Law, investor appointment must adhere to the principles specified in Article 66 of this Decree and shall be carried out according to the following detailed process:

a/ Preparation for investor appointment, covering preparation, appraisal and approval of bidding dossiers. Competent agencies shall identify investors that satisfy the conditions specified in Article 29 of the PPP Law and Clause 5, Article 29 of this Decree and are proposed to be appointed upon approval of bidding dossiers.

b/ Organization of investor appointment, covering:

- Distribution of bidding dossiers: Bidding dossiers shall be distributed to investors that are proposed to be appointed;

- Preparation, submission, receipt, management, modification and/or withdrawal of bid dossiers;

- Opening of bid dossiers.

c/ Evaluation of bid dossiers.

d/ Submission, appraisal, approval and publicization of investor selection  results.

dd/ Negotiation, completion and signing of PPP project contracts, and disclosure of information on contracts.

2. For projects specified at Point b, Clause 1, Article 39 of the PPP Law, the process of investor selection must comply with Articles 67 and 68 of this Decree.

Section 2

SELECTION OF SHORTLISTS

Sub-section 1

PREQUALIFICATION FOR OPEN BIDDING

Article 38. Preparation, appraisal and approval of dossiers of invitation to prequalification

1. A bid solicitor shall prepare a dossier of invitation to prequalification for a project based on the following documents:

a/ Decision on project investment policy and decision on approval of the PPP project (if any);

b/ Prefeasibility study report and feasibility study report of the PPP project (if any) and relevant documents;

c/ Relevant regulations and policies of the State.

2. Contents of a dossier of invitation to prequalification

A dossier of invitation to prequalification for a project must have the following principal contents:

a/ Instructions to investors: General information on the project and other instructions to investors that participate in bidding;

b/ Requirements on eligibility of investors as specified in Article 29 of the PPP Law;

c/ Request for investors’ proposals on preliminary plans on project implementation and their project implementation commitments;

d/ Request for investors’ declaration of history of disputes, complaints and lawsuits regarding contracts that have been and are being performed;

dd/ Standards for evaluation of capacity and experience of investors, including:

- 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;    

- Requirements on capacity and experience of key personnel (if necessary);

- Experience in operation and commercial operation of infrastructure facilities and systems for provision of public products and services as for projects implemented under O&M contracts. Experience in operation or commercial operation of infrastructure facilities and systems for provision of public products and services or cooperation agreements with partners experienced in operating or commercially operating infrastructure facilities and systems for provision of public products and services as for projects implemented under BOT, BTO, BOO, BTL, BLT or mixed contracts.

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. 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 or the investor leading the joint-name entity must have a cooperation agreement with a partner experienced in operating or commercially operating similar infrastructure facilities and systems for provision of public products and services.

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).

e/ Evaluation method

The method of scoring on the scale of 100 or 1,000 points shall be applied to evaluate capacity and experience of investors. Upon formulating criteria for evaluation of capacity and experience, the minimum score must be set for evaluating dossiers as satisfactory but must not be lower than 60% of total scores and the score of each content subject to basic requirements must not be lower than 50% of the maximum score for such content.

g/ Forms for participation in prequalification

Dossiers of invitation to prequalification may only set forth requirements for the sole purpose of selecting investors with eligibility, capacity and experience for project implementation; and may not impose any conditions aiming to restrict the participation of investors or create advantages for one or several investor(s), thus leading to unfair competition.

3. Appraisal and approval of dossiers of invitation to prequalification:

a/ Bid solicitors shall submit to competent agencies draft dossiers of invitation to prequalification and relevant documents and concurrently send them to units assigned by competent agencies the appraisal task in investor selection (below referred to as appraising units);

b/ Appraising units shall appraise dossiers of invitation to prequalification under Clauses 1, 3, 4 and 5, Article 71 of this Decree;

c/ Based on requests for approval and reports on appraisal of dossiers of invitation to prequalification, competent agencies shall approve dossiers of invitation to prequalification;

d/ Competent agencies may authorize bid solicitors to approve dossiers of invitation to prequalification. In this case, bid solicitors shall organize appraisal of dossiers of invitation to prequalification under Clauses 1, 3, 4 and 5, Article 71 of this Decree before approving them.

Article 39. Notices of invitation to prequalification, distribution, modification and clarification of dossiers of invitation to prequalification; extension of the time limit for submission of prequalification participation dossiers

1. Notices of invitation to prequalification shall be posted under Point b, Clause 1, Point a, Clause 2, and Clause 4, Article 4 of this Decree, and concurrently sent by bid solicitors to investors that have registered their interest in project implementation under Article 25 of this Decree.

2. Distribution, modification and clarification of dossiers of invitation to prequalification

a/ Bid solicitors shall post free of charge the whole files of dossiers of invitation to prequalification on the Vietnam National E-Procurement System;

b/ In case of modification of dossiers of invitation to prequalification after they are distributed, bid solicitors shall post decisions on modification enclosed with modified contents of such dossiers on the Vietnam National E-Procurement System;

c/ If wishing to have dossiers of invitation to prequalification clarified, investors shall send a written request for clarification to bid solicitors or via the Vietnam National E-Procurement System at least 5 working days before the date of bid closing for the latter’s consideration and handling. A dossier of invitation to prequalification shall be clarified by a bid solicitor by one of the following methods:

- Posting a clarification document on the Vietnam National E-Procurement System;

- In case of necessity, holding a pre-bid conference for exchange of opinions on the dossier’s contents which investors find unclear. Exchanged opinions shall be recorded by the bid solicitor in a minutes and included in a document clarifying the dossier of invitation to prequalification. Such a clarifying document shall be posted on the Vietnam National E-Procurement System;

Contents clarifying the dossier of invitation to prequalification must not be contrary to contents of the approved dossier of invitation to prequalification. In case the clarification of the dossier of invitation to prequalification leads to modification thereof, such modification must comply with Point b of this Clause.

d/ Decisions modifying and documents clarifying dossiers of invitation to prequalification constitute part of such dossiers.

3. Extension of the time limit for submission of prequalification participation dossiers        

In case of extension of the time limit for submission of prequalification participation dossiers, bid solicitors shall post notices of time limit extension enclosed with decisions approving time limit extension on the Vietnam National E-Procurement System, clearly stating reasons for extension and the new time of bid closing.

Article 40. Preparation, submission, receipt, management, modification and/or withdrawal of prequalification participation dossiers and bid opening

1. Preparation, submission, receipt, management, modification and/or withdrawal of prequalification participation dossiers

a/ Investors shall prepare and submit prequalification participation dossiers to the bid solicitor as requested in the dossier of invitation to prequalification;

b/ The bid solicitor shall receive prequalification participation dossiers submitted by all investors before the time of bid closing and manage them under the regime of management of confidential files until prequalification results are publicized. In any case, it is not allowed to disclose information in the prequalification participation dossier of an investor to another investor, except information eligible to be publicized upon bid opening;

c/ When it is necessary to modify or withdraw a submitted prequalification participation dossier, an investor shall send a written request to the bid solicitor. The bid solicitor may only approve the modification or withdrawal of the prequalification participation dossier of an investor if receiving the latter’s request before the time of bid closing;

d/ Prequalification participation dossiers or documents sent by investors to bid solicitors after the time of bid closing may not be opened, shall be considered invalid and disqualified, except documents clarifying such dossiers as requested by bid solicitors or clarifying, modifying or supplementing documents specified at Points a and b, Clause 3, Article 41 of this Decree.

2. Bid opening

a/ Prequalification participation dossiers submitted in accordance with provisions in dossiers of invitation to prequalification shall be opened publicly within 1 hour from the time of bid closing;

b/ Minutes of bid opening shall be sent to investors participating in bidding, which must state names of investors; information in applications for participation in prequalification; and other relevant information.

Article 41. Evaluation of prequalification participation dossiers       

1. Evaluation of validity of prequalification participation dossiers

A prequalification participation dossier may be evaluated as valid when fully satisfying the following requirements:

a/ It has its original;

b/ It has a valid application for participation in prequalification;

c/ It has a valid joint-name agreement, in case of joint-name investment;

d/ Its validity satisfies requirements set in the dossier of invitation to prequalification;

dd/ The investor is not named in two or more prequalification participation dossiers in the capacity as an independent investor or a joint-name member;

e/ The investor is not in the period of being banned from participating in PPP investment in accordance with the PPP law; and is not a contractor currently banned from participating in bidding in accordance with the bidding law;

g/ The investor is eligible under Article 29 of the PPP Law.

2. Evaluation of capacity and experience

a/ Evaluation of capacity and experience shall be carried out by methods and based on evaluation criteria provided in dossiers of invitation to prequalification;

b/ Prequalification participation dossiers that have evaluation scores not lower than the required minimum score shall be included in shortlists. The ranking of investors shall be based on evaluation scores. The investor with the highest evaluation score shall be ranked the first. In case 3 or more investors satisfy the set requirements, between 3 and 6 highest-ranked investors may be included in a shortlist.

3. In the course of evaluation, in case prequalification participation dossiers lack documents and information proving capacity and experience of investors, the clarification, modification, supplementation and completion of such dossiers must comply with provisions of, and within time limits stated in, dossiers of invitation to prequalification. The clarification and completion of prequalification participation dossiers do not change eligibility and names of investors participating in prequalification.

Article 42. Submission, appraisal and approval of prequalification results and publicization of shortlists

1. Based on reports on prequalification results, bid solicitors shall submit prequalification results to competent agencies and concurrently send them to appraising units.

2. Appraising units shall appraise prequalification results under Clauses 1, 4 and 5, Article 72 of this Decree before approving them.

3. Competent agencies shall approve prequalification results based on requests for approval and reports on appraisal of prequalification results.

4. Competent agencies may authorize bid solicitors to approve prequalification results. In this case, bid solicitors shall organize appraisal under Clauses 1, 4 and 5, Article 72 of this Decree.

5. A document approving prequalification results must state names of investors having passed prequalification, disqualified investors and summarized reasons for disqualification, and notes (if any). In case no investor has passed prequalification, a document approving prequalification results must state reason(s) for failure to select a shortlist.

6. Bid solicitors shall send notices of prequalification results to investors that have submitted valid prequalification participation dossiers and had their dossiers received before the time of bid closing, and concurrently publicize shortlists on the Vietnam National E-Procurement System under Point c, Clause 1, and Point c, Clause 2, Article 4 of this Decree.

Sub-section 2

DETERMINATION OF LISTS OF INVESTORS TO BE INVITED TO PARTICIPATE IN COMPETITIVE NEGOTIATION FOR PROJECTS SPECIFIED IN CLAUSE 2 OR 3, ARTICLE 38 OF THE PPP LAW

Article 43. Preparation, appraisal and approval of dossiers of invitation to negotiation   

1. A bid solicitor shall prepare a dossier of invitation to negotiation based on the following documents:

a/ Decision on PPP project investment policy;

b/ Prefeasibility study report and relevant documents;

c/ Regulations on PPP investment and relevant regulations.

2. Contents of a dossier of invitation to negotiation:

A dossier of invitation to negotiation means all documents to be used for the form of competitive negotiation for projects applying high technologies or new technologies, covering requirements for a project, for use as a basis for investors to prepare dossiers for participation in negotiation and for the bid solicitor to organize evaluation of dossiers for participation in negotiation in order to select a shortlist. A dossier of invitation to negotiation for a project must have the following principal contents:

a/ General information on the project, including basic information on the project and instructions to investors;

b/ Requirements on eligibility of investors as specified in Article 29 of the PPP Law;

c/ Request for investors’ declaration of history of disputes, complaints and lawsuits regarding contracts that have been and are being performed;

d/ Criteria for evaluation of capacity and experience of investors, including requirements specified at Point dd, Clause 2, Article 38 of this Decree; requirements on provision of documents proving technical and technological solutions on the list of high technologies prioritized for development investment as specified by the law on high technologies or on the list of technologies eligible for transfer promotion as specified by the law on technology transfer, and lawful right to use such solutions as proposed by investors for project implementation.

Methods of evaluating capacity and experience of investors must comply with Point e, Clause 2, Article 38 of this Decree;

dd/ Minimum requirements on compatibility of technical and technological solutions, quality of public products and services; operation, management, commercial operation, maintenance and servicing; and environmental protection;

e/ Preliminary financial-commercial requirements, including requests for investors’ proposals on one of the following values: maximum price levels or charge rates of public products and services; state capital as support for construction of infrastructure facilities or systems; minimum levels of social and state interests;

g/ Bid forms;

h/ Contents subject to negotiation with investors;

i/ Other necessary contents (if any).

Dossiers of invitation to negotiation may only set forth requirements for the sole purpose of selecting investors that satisfy requirements on capacity and experience and have feasible project implementation solutions; and may not impose any conditions aiming to restrict the participation of investors or create advantages for one or several investor(s), thus leading to unfair competition.

3. Appraisal and approval of dossiers of invitation to negotiation

a/ Bid solicitors shall submit to competent agencies draft dossiers of invitation to negotiation and relevant documents and concurrently send them to appraising units;

b/ Appraising units shall appraise dossiers of invitation to negotiation under Clauses 1, 3, 4 and 5, Article 71 of this Decree;

c/ Based on requests for approval and reports on appraisal of dossiers of invitation to negotiation, competent agencies shall approve dossiers of invitation to negotiation;

d/ Competent agencies may authorize bid solicitors to approve dossiers of invitation to negotiation. In this case, bid solicitors shall organize appraisal of dossiers of invitation to negotiation under Clauses 1, 3, 4 and 5, Article 71 of this Decree before approving them.

Article 44. Notices of invitation for bids and distribution of dossiers of invitation to negotiation

1. Notices of invitation for bids shall be posted under Point b, Clause 1, Point a, Clause 2, and Clause 4, Article 4 of this Decree.

2. Bid solicitors shall post free of charge the whole files of dossiers of invitation to negotiation on the Vietnam National E-Procurement System.

Article 45. Preparation, submission, receipt, management, modification and/or withdrawal of dossiers for participation in negotiation

1. Preparation and submission of dossiers for participation in negotiation

Investors shall prepare and submit dossiers for participation in negotiation to the bid solicitor as requested in the dossier of invitation to negotiation. A dossier for participation in negotiation must comprise a dossier on capacity and experience and a dossier of preliminary technical and financial-commercial proposals which are separately sealed up, in which:

a/ The dossier on capacity and experience must comprise documents proving eligibility, capacity and experience of the investor; documents evidencing the lawful right of the investor to use technical and technological solutions;

b/ The dossier of preliminary technical and financial-commercial proposals must comprise proposals on preliminary technical plans, preliminary financial-commercial plans, and recommendations on the project (if any).

2. Receipt, management, modification and/or withdrawal of dossiers for participation in negotiation

a/ A bid solicitor shall receive dossiers for participation in negotiation of all investors that submit their dossiers for participation in negotiation before the time of bid closing and manage such dossiers under the regime of management of confidential files until shortlists are publicized;

b/ When wishing to modify or withdraw their submitted dossiers for participation in negotiation, investors shall send a written request to the bid solicitor. The bid solicitor may only approve the modification or withdrawal of dossiers for participation in negotiation of investors if receiving the latter’s written request before the time of bid closing.

Article 46. Selection of shortlists

1. Dossiers on capacity and experience of investors submitted according to dossiers of invitation to negotiation shall be opened publicly within 1 hour from the time of bid closing. Bid-opening records shall be sent to all investors participating in bidding.

2. Evaluation of dossiers on capacity and experience

a/ Evaluation of the validity of dossiers for participation in negotiation

A dossier of participation in negotiation shall be evaluated as valid if it fully meets the following requirements:

- The original dossier of participation in negotiation is available;

- The dossier includes a valid application for participation in negotiation;

-  The dossier’s validity complies with the requirements set in the dossier of invitation to negotiation;

- The investor is not listed in two or more dossiers of participation in negotiation in the capacity as independent investor or joint-name member;

- In case of a joint-name entity, the dossier must include a joint-name agreement which is signed and sealed (if possible) by the lawful representative of each joint-name member and contains clauses on tentative assignment of responsibilities to each joint-name member;

- The investor is not being banned from making investment in the PPP form in accordance with the PPP law; not being banned from participating in bidding in accordance with the bidding law.

b/ Evaluation of capacity and experience

- The evaluation of capacity and experience shall be carried out according to the evaluation methods and criteria specified in the dossier of invitation to negotiation.

- Investors that meet requirements on capacity and experience and can prove that they have technical and technological solutions suitable to project implementation requirements shall be considered and selected to be included in a shortlist.

c/ In the course of evaluating the validity of dossiers of participation in negotiation and investors’ capacity and experience, if detecting that a dossier lacks documents or information compared to requirements stated in the dossier of invitation to negotiation, the concerned investor may clarify, modify, supplement and improve its/his/her dossier for participation in negotiation. The clarification and improvement of the dossier does not give rise to any change in eligibility and name of the investor.

3. Based on the results of evaluation of dossiers on capacity and experience, the bid solicitor shall approve a shortlist of investors invited to participate in competitive negotiation and negotiation plan. In case there are more than 3 investors meeting requirements, at least 3 investors and at most 6 investors shall be selected to the shortlist.

4. Posting of the shortlist

The bid solicitor shall post the shortlist to the Vietnam National E-Procurement System according to Point b, Clause 1, and Point b, Clause 2, Article 4 of this Decree.

5. Investors on the shortlist shall be invited to participate in competitive negotiation according to the plan, time and venue stated in the shortlist-approving decision.

Article 47. Organization of competitive negotiation

1. Principles of competitive negotiation

a/ To ensure equity, transparency and objectivity. The negotiation shall be based on the requirements stated in the dossier of invitation to negotiation, dossiers of participation in negotiation and explanations and clarifications of investors;

b/ Not to disclose information of the dossier of participation in negotiation of, and contents of the negotiation with, one investor to other investors, except information permitted to be made public upon opening dossiers on capacity and experience;

c/ To permit investors to adjust their technical and financial-commercial proposals for the sole purpose of working out more effective solutions for project implementation;

d/ Not to lead to changes in the contents of decisions on investment policy specified in Clause 2, Article 17 of the PPP Law, except cases of adjusting investment policy under Points a and b, Clause 1, Article 18 of the PPP Law;

dd/ Not to impose any liability on competent agencies and the bid solicitor for the content of proposals offered by investors when participating in negotiation; not to disqualify investors during the negotiation process.

2. Organization of competitive negotiation

a/ Competitive negotiation shall be organized in two rounds with each round consisting of direct and independent talks with each investor. Talks on each issue to be negotiated shall be held within the same period of time. The bid solicitor may not change the negotiating representative throughout the negotiation process, except in force majeure events.

During the negotiation process, if modifying or clarifying the dossier of invitation to negotiation, the bid solicitor shall send the modifying or clarifying documents to all investors on the shortlist.

b/ First-round negotiation

The bid solicitor shall open dossiers of technical and financial-commercial proposals and talk with each investor on the content of negotiation. When the first-round negotiation completes, the bid solicitor may modify the project’s technical and financial-commercial requirements (if necessary) and notify investors thereof.

c/ Second-round negotiation

Based on contents required to be modified, investors shall finalize their dossiers of technical and financial-commercial proposals and submit them to the bid solicitor. The bid solicitor shall receive and open investors’ dossiers of technical and financial-commercial proposals and carry out second-round negotiation with each investor to make precise the project’s detailed technical and financial-commercial requirements which shall serve as a basis for the bid solicitor to finalize the bidding dossier and for the investors to prepare bid dossiers.

d/ The result and content of each negotiation round shall be recorded in a minutes signed by representatives of the bid solicitor and investors. The bid solicitor shall store minutes of each negotiation round and audio files of each talk. Negotiation minutes shall be sent to investors participating in the negotiation; it is not permitted to send negotiation minutes of one investor to others.

Section 3

PREPARATION FOR SELECTION OF INVESTORS

Article 48. Organization of negotiation and talks on the contents of the bidding dossier for a project specified in Clause 1, Article 38 of the PPP Law

1. Based on the result of the survey of interest of investors specified in Article 25 of this Decree, the shortlist shall be approved in the decision approving the PPP project.

2. The bid solicitor shall invite investors on the shortlist to come to negotiate and talk about the content of the bidding dossier. The negotiation and talk must not lead to changes in the contents of the investment policy decision specified in Clause 1, Article 17 of the PPP Law, except cases of adjusting investment policy under Points a and b, Clause 1, Article 18 of the PPP Law.

3. Negotiation and talk results shall be recorded in minutes signed by representatives of the bid solicitor and investors participating in the negotiation and talk. Such minutes shall be sent directly to investors.

Article 49. Preparation, appraisal and approval of a bidding dossier

1. The bid solicitor shall prepare the biding dossier based on the following dossiers and documents:

a/ The decision approving the PPP project, except the projects specified at Point d of this Clause;

b/ Prequalification results, for projects applying open bidding with prequalification;

c/ Results of negotiation and talks about the content of the bidding dossier, for the projects specified in Clause 1, Article 38 of the PPP Law;

d/ The decision on investment policy for the PPP project and results of negotiation with investors, for the projects specified in Clauses 2 and 3, Article 38 of the PPP Law;

dd/ The PPP project’s prefeasibility study report (for the projects specified in Clauses 2 and 3, Article 38 of the PPP Law) and feasibility study report, and relevant documents;

e/ Relevant laws and policies of the State.

When necessary, based on practical requirements of the project, competent agencies shall decide on the preparation of the bidding dossier based on the approved designs to be implemented after basic designs and cost estimates but may not restrict competitiveness in the process of selection of investors or the right to change or make designs to be implemented after basic designs of investors or prolong the project implementation duration.               

2. The bidding dossier for a project applying open bidding without prequalification or applying competitive negotiation according to Clause 1, Article 38 of the PPP Law must comprise the following principal contents:

a/ Instructions to investors: General information on the project, covering the contents and scope of the project, descriptions of technical requirements of the project, products and public services to be provided and instructions to investors to participate in bidding;

b/ Requirements on eligibility of investors as specified in Article 29 of the PPP Law;

c/ Requirements on investors’ declaration of disputes, complaints and lawsuits over contracts they have performed and are performing;

d/ Criteria for evaluation of bid dossiers, including criteria for evaluation of capacity and experience, criteria for technical and financial-commercial evaluation and evaluation methods, principles of determining the value for account-finalization of investment capital for infrastructure facilities and systems;

dd/ Forms used for bidding participation;

e/ Requirements on bid security and contract performance security according to Clause 4, Article 3 of the PPP Law. In case bid security and contract performance security are required to be in the form of letter of guarantee, investors may submit a letter of guarantee or certificate of guarantee insurance as security for their participation in bidding and performance of contracts. A letter of guarantee for participation in bidding or contract performance or certificate of guarantee insurance must bear the signature and seal (if any) of the lawful representative of a Vietnamese credit institution or non-life insurance enterprise or a foreign bank branch or of a branch of a foreign non-life insurance enterprise established under Vietnam’s law.

g/ Type of contract, conditions of contract and draft contract.

The bidding dossier may impose requirements for the sole purpose of selecting investors meeting eligibility, capacity and experience requirements and having feasible solutions to implement the project; must not state any conditions aiming to restrict the participation of investors or create advantages for one or several investor(s), thus causing unfair competition.

3. For projects applying open bidding with prequalification or applying competitive negotiation specified in Clause 2 or 3, Article 38 of the PPP Law, a bidding dossier must have the contents specified at Points d, dd, e and g, Clause 2 of this Article.

4. In case mini-projects using public investment funds are formed under a PPP project as specified at Point a, Clause 5, Article 70 of the PPP Law, competent agencies shall organize the formulation and appraisal of designs to be implemented after basic designs and cost estimates (covering also funds for organization of work construction supervision, acceptance testing of construction works and work items) for mini-projects in accordance with the law on construction so as to have grounds for approval of these contents together with the bidding dossier.

5. Appraisal and approval of a bidding dossier:

a/ The bid solicitor shall submit to a competent agency the draft bidding dossier and relevant documents and concurrently send them to the appraising unit;

b/ The appraising unit shall appraise the bidding dossier according to Clauses 2, 3, 4 and 5, Article 71 of this Decree;

c/ The competent agency shall approve the bidding dossier based on the request for approval and report on appraisal of the bidding dossier.

Article 50. Methods and criteria for evaluation of bid dossiers

1. Methods and criteria for evaluation of capacity and experience

a/ For projects applying open bidding with prequalification or applying competitive negotiation specified in Clause 2 or 3, Article 38 of the PPP Law, a bidding dossier does not necessarily provide methods and criteria for evaluation of investors’ capacity and experience but must require investors to update information on their capacity and experience;

b/ For projects applying open bidding without prequalification or applying competitive negotiation specified in Clause 1, Article 38 of the PPP Law, the methods and criteria for evaluation of investors’ capacity and experience must comply with Points dd and e, Clause 2, Article 38 of this Decree.

2. Methods and criteria for technical evaluation

a/ Based on the size, characteristics and contract type of projects, criteria for technical evaluation include:

- Criterion on techniques, technologies and quality of infrastructure facilities or systems;         

- Criterion on quality of products or public services, covering requirements on ensuring continuous supply of products and public services;

- Criterion on operation, commercial operation, and maintenance of infrastructure facilities and systems;

- Criterion on environmental protection plans in accordance with the law on environmental protection;

- Other technical criteria (if necessary).

When preparing bidding dossiers, it is required to formulate detailed criteria for technical evaluation based on the criteria specified at this Point in conformity with each specific project.

For a PPP project with work items funded with public investment capital as specified at Point b, Clause 5, Article 70 of the PPP Law, the bidding dossier must specify that investors shall determine work items funded with public investment capital in their bid dossiers.

b/ Methods of technical evaluation

To apply the 100- or 1,000-point scoring method or the pass/fail method to formulate criteria for technical evaluation.

When formulating criteria for technical evaluation using the 100- or 1,000 scoring method, it is required to provide the minimum score and maximum score for each general criterion and detailed criterion; an investor shall be evaluated as satisfying requirements if reaching the minimum score which, however, must not be lower than 70% of the total technical score, while its/his/her score for each technical requirement must not be lower than 60% of the maximum score of such requirement.

When formulating criteria for technical evaluation using the pass/fail method, it is required to determine the degree of requirements for each criterion. For criteria for general evaluation, only the pass/fail grade shall be used. For basic specific evaluation criteria under general criteria, only the pass/fail grade shall be used; for non-basic specific criteria under a general criterion, in addition to the pass/fail grade, the satisfactory grade may be used for at most 30% of the total specific criteria under such general criterion. An investor shall be evaluated as passing a general criterion when it/he/she obtains the “pass” grade for all basic specific criteria and “pass” or “satisfactory” grade for non-basic specific criteria under such general criterion.

3. Methods and criteria for financial-commercial evaluation

a/ Financial-commercial evaluation shall be based on the comparison and ranking method as stated in bidding dossier. The bidding dossier must determine whether to apply one or combine several of the following criteria which are specified in Clause 3, Article 42 of the PPP Law, including the criterion on product and public service prices and charges, criterion on state capital provided as support for construction of infrastructure facilities and systems, and criterion on social interests and state interests, to compare and rank investors meeting financial-commercial requirements. The investor that is ranked first shall be considered and proposed to win the bid.

For a PPP project with mini-projects funded with public investment capital specified at Point a, Clause 5, Article 70 of the PPP Law, the bidding dossier must not apply the criterion on state capital provided as support for construction of infrastructure facilities and systems.

b/ Based on the size, characteristics and contract type of a project and evaluation criteria specified at Point a of this Clause, the bidding dossier must clearly state the following evaluation contents:

- Evaluation of financial-commercial feasibility, including also expenses for engineering and construction, operation, management, commercial operation, and maintenance;

- Evaluation of the reasonability of proposed financial agreements;

- Evaluation of the degree of agreement with the proposed contractual terms and clauses related to distribution of risks or compensations;

- Other contents of financial-commercial evaluation (if necessary).

Section 4

ORGANIZATION OF SELECTION OF INVESTORS

Article 51. Invitation for bids, distribution, modification and clarification of bidding dossiers; extension of time limits for submission of bid dossiers

1. Invitation for bids

a/ For a project applying open bidding with prequalification or applying competitive negotiation under Article 38 of the PPP Law, a letter of invitation for bid shall be sent to investors on the shortlist, clearly stating the time and place of distribution of the bidding dossier, time of bid closing and time of bid opening;

b/ For a project applying open bidding without prequalification, a notice of invitation for bids shall be posted according to Point b, Clause 1; Point a, Clause 2, and Clause 4, Article 4 of this Decree and, at the same time, sent by the bid solicitor to investors having registered their interest in the project under Article 25 of this Decree.

2. Distribution of bidding dossiers

a/ For a project applying open bidding with prequalification or applying competitive negotiation under Article 38 of the PPP Law, the bidding dossier shall be distributed to investors on the shortlist. When submitting bid dossiers, investors shall pay a sum of money equaling the selling price of 1 bidding dossier;

b/ For a project applying open bidding without prequalification, the bid solicitor shall post free of charge the whole file of the bidding dossier to the Vietnam National E-Procurement System.   

3. Modification of bidding dossiers

In case a bidding dossier is modified after being distributed, the decision on modification of the bidding dossier, enclosed with modified contents, shall be sent by the bid solicitor to investors on the shortlist, for projects for which prequalification or competitive negotiation has been carried out, or posted to the Vietnam National E-Procurement System, for projects without prequalification.

4. Clarification of bidding dossiers

a/ For a project applying open bidding with prequalification or applying competitive negotiation according to Article 38 of the PPP Law, investors shall send a request to the bid solicitor at least 7 working days (in case of selection of domestic investors) or 15 days (in case of selection of international investors) before the date of bid closing for consideration and handling. The bid solicitor shall clarify the bidding dossier in one of the following forms:

- Sending a clarifying document to investors on the shortlist;

- When necessary, organizing a pre-bid conference to discuss the bidding dossier’s contents which remain unclear to investors. The bid solicitor shall record discussion contents in a minutes and make a document clarifying the bidding dossier which shall be sent to investors on the shortlist.

b/ For a project applying open bidding without prequalification, investors shall send a request to the bid solicitor or via the Vietnam National E-Procurement System at least 7 working days (in case of selection of domestic investors) or 15 days (in case of selection of international investors) before the date of bid closing for consideration and handling. The bid solicitor shall clarify the bidding dossier in one of the following forms:

- Posting a clarifying document to the Vietnam National E-Procurement System;

- When necessary, organizing a pre-bid conference to discuss the bidding dossier’s contents which remain unclear to investors. The bid solicitor shall record discussion contents in a minutes and make a document clarifying the bidding dossier which shall be posted to the Vietnam National E-Procurement System.

c/ The contents of the document clarifying the bidding dossier must not be contrary to the approved bidding dossier. In case the clarification of the bidding dossier prompts the need to modify the biding dossier, the modification of the bidding dossier must comply with Clause 3 of this Article.

5. The decision on modification and document clarifying the bidding dossier constitute part of the bidding dossier.

6. Extension of time limits for submission of bid dossiers   

a/ For a project applying open bidding with prequalification or applying competitive negotiation, the bid solicitor shall send a notice of extension, enclosed with the extension decision, to investors on the shortlist;

b/ For a project applying open bidding without prequalification, the bid solicitor shall post a notice of extension, enclosed with the extension decision, to the Vietnam National E-Procurement System;

c/ A notice of extension must cover the reason(s) for extension and the new time of bid closing.

Article 52. Preparation, submission, receipt, management, modification, replacement and withdrawal of bid dossiers

1. Investors shall prepare and submit bid dossiers in one of the following cases:

a/ For a project applying open bidding without prequalification or applying competitive negotiation specified in Clause 1, Article 38 of the PPP Law, a bid dossier must comprise a dossier of technical proposals and a dossier of financial-commercial proposals which are separately sealed and submitted concurrently to the bid solicitor before the time of bid closing as requested in the bidding dossier according Clause 2, Article 49 of this Decree;

b/ For a project applying open bidding with prequalification, a bid dossier must comprise a dossier of technical proposals and a dossier of financial-commercial proposals which are separately sealed and submitted concurrently to the bid solicitor before the time of bid closing as requested in the bidding dossier according Clause 3, Article 49 of this Decree;

c/ For a project applying competitive negotiation according to Clause 2 or 3, Article 38 of the PPP Law, a bid dossier must comprise technical and financial-commercial proposals which shall be sealed and submitted to the bid solicitor before the time of bid closing as requested in the bidding dossier. Investors are not allowed to change basic technical and technological solutions proposed during negotiation.   

2. The bid solicitor shall receive all bid dossiers submitted by investors before the time of bid closing and manage submitted bid dossiers according to regulations on management of confidential files until the investor selection result is made public; and in all cases, may not disclose information in the bid dossier of one investor to other investors, except information permitted to be made public upon bid opening.

3. If wishing to modify, replace or withdraw bid dossiers already submitted, investors shall send a request to the bid solicitor. The bid solicitor shall only accept the modification, replacement or withdrawal of bid dossiers if receiving such requests before the time of bid closing.

4. Bid dossiers and documents sent by investors to the bid solicitor after the time of bid closing shall not be opened, be regarded as invalid and disqualified, except documents clarifying bid dossiers at the request of the bid solicitor or clarifying or supplementing documents to prove investors’ eligibility, capacity and experience.

Article 53. Principles of evaluation of bid dossiers

1. The evaluation of bid dossiers shall be based on criteria for evaluation of bid dossiers and other requirements stated in bidding dossiers as well as submitted bid dossiers and documents explaining or clarifying bid dossiers of investors so as to select investors that are capable and experienced and have feasible technical and financial-commercial plans to implement projects.

2. The evaluation shall be conducted based on copies; investors shall be held responsible for the consistency between originals and their copies. In case there exist minor disparities between originals and copies which do not change the concerned investor’s ranking, the evaluation shall be conducted based on originals. In case there exist large disparities between originals and copies, leading to the situation whereby the result of evaluation based on originals differs from that based on copies and consequently changing the concerned investor’s ranking, the bid dossier of such investor shall be disqualified.

3. When evaluating a bid dossier, the bid solicitor shall examine technical and financial-commercial information in the bid dossier so as to identify that such bid dossier does not contain disparities, impositions of conditions or omissions of  basic contents, of which:

a/ Disparities are differences with requirements stated in the bidding dossier;

b/ Imposition of conditions means the investor’s imposition of conditions that restrict or show its/his/her refusal to entirely accept the requirements stated in the bidding dossier;

c/ Omission of contents means the investor’s failure to provide part or the whole of information or documents as required in the bidding dossier.

4. On the condition that a bid dossier meets basic requirements stated in the bidding dossier, the bid solicitor may accept errors other than disparities, impositions of conditions or omissions of basic contents of the bid dossier which, if accepted or allowed to be modified, supplemented or replaced by the investor will:

a/ Exert considerable impacts on the scope and requirements on technical and technological aspects and quality of infrastructure facilities and systems, products or public services;    

b/ Cause considerable restrictions on and inconsistencies with the bidding dossier regarding powers of the bid solicitor, the project contract-signing agency or competent agency or obligations of the investor or project enterprise in the contract; or,

c/ Exert unequal impacts on competitive position of other investors whose bid dossiers meet basic requirements stated in the bidding dossier.

5. Bid dossiers that do not meet basic requirements stated in the bidding dossier shall be disqualified; and it is not allowed to modify disparities, impositions of conditions or omission of basic contents of the bid dossiers for the purpose of making such dossiers meet these basic requirements.

Article 54. Principles of clarifying bid dossiers

1. After the bid opening, investors shall clarify their bid dossiers if so requested by the bid solicitor.

2. For projects not applying prequalification, after closing bids, the bid solicitor shall receive documents clarifying and supplementing documents proving the eligibility, capacity and experience of investors if the latter detect that their bid dossiers lack information and documents on their capacity and experience which have not submitted together with their bid dossiers. Such documents shall be considered part of bid dossiers.

3. The clarification of contents on the eligibility, capacity and experience of investors must not substantially change the eligibility, capacity and experience of investors participating in bidding. The clarification of technical and financial-commercial proposals stated in bid dossiers of investors must adhere to the principle of not changing basic contents of submitted bid dossiers.

4. The clarification shall be carried out only between the bid solicitor and investors whose bid dossiers need to be clarified. The clarification of bid dossiers shall be made in writing and such clarifying documents shall be preserved by bid solicitors as part of bid dossiers.

Section 5

EVALUATION OF BID DOSSIERS

Sub-section 1

FOR PROJECTS APPLYING OPEN BIDDING OR COMPETITIVE NEGOTIATION UNDER CLAUSE 1, Article 38 OF THE PPP LAW

Article 55. Opening of dossiers of technical proposals

1. The opening of dossiers of technical proposals shall be carried out publicly within 1 hour from the time of bid closing. Bid-opening records shall be sent to investors participating in bidding.

2. The representative of the bid solicitor shall sign originals of application for participation in bidding, letters of authorization of at-law representatives of investors (if any); joint-name agreements (if any); bid security; and important contents of each dossier of technical proposals.

3. Dossiers of financial-technical proposals of all investors shall be sealed by the bid solicitor in a separate bag which shall be signed by representatives of the bid solicitor and investors attending the ceremony to open dossiers of technical proposals.

Article 56. Evaluation of dossiers of technical proposals

1. Examination of validity of a dossier of technical proposals, including:

a/ Examining the number of originals and copies included in the dossier;

b/ Examining papers included in the dossier, including: application for participation in bidding for technical proposals, joint-name agreement (if any), letter of authorization to sign the application for participation in bidding (if any); bid security; document proving the eligibility of the person undersigning the application for participation in bidding (if any); documents proving the eligibility, capacity and experience of the investor (for projects not applying prequalification); technical proposals; and other papers included in the dossier;

c/ Examining the consistency between originals and copies to serve the evaluation of the dossier.

2. Evaluation of validity of dossiers of technical proposals

A dossier of technical proposals of an investor shall be evaluated as valid when it fully meets the following conditions:

a/ The original dossier of technical proposals is available;

b/  The dossier includes a valid application for participation in bidding for technical proposals;

c/ The dossier’s validity complies with the requirements set in the bidding dossier;

d/ The investor obtains a valid bid security;

dd/ The dossier includes a valid joint-name agreement, in case of a joint-name entity;

e/ The investor is not listed in two or more dossiers of technical proposals in the capacity as independent investor or joint-name member;

g/ The investor is not being banned from making investment in the PPP form in accordance with the PPP law; not being banned from participating in bidding in accordance with the bidding law;

h/ The investor has eligibility as specified in Article 29 of the PPP Law.

3. Evaluation of capacity and experience

a/ For a project applying open bidding for which prequalification has been carried out, investors shall make a written commitment on satisfaction of requirements for project implementation. If there are any changes in information declared in dossiers of participation in prequalification, investors shall update information on their capacity and the bid solicitor shall organize re-evaluation according to the evaluation method and criteria stated in the dossier of invitation to prequalification;

b/ For a project applying open bidding without prequalification or applying competitive negotiation specified in Clause 1, Article 38 of the PPP Law, the evaluation of investors’ capacity and experience shall be carried out according to the evaluation method and criteria stated in the bidding dossier.

4. Investors whose dossiers of technical proposals are valid and meet requirements on capacity and experience shall be considered for detailed technical evaluation.

5. Detailed evaluation of dossiers of technical proposals

The detailed evaluation of dossiers of technical proposals shall be carried out according to the method and criteria for technical evaluation stated in the bidding dossier.

Article 57. Appraisal and approval of the list of investors meeting technical requirements

1. Appraising units shall appraise the list of investors meeting technical requirements according to Clauses 2, 4 and 5, Article 72 of this Decree.

2. Competent agencies shall approve the list of investors meeting technical requirements.

Competent agencies may authorize the bid solicitor to approve the list of investors meeting technical requirements. If being authorized, the bid solicitor shall organize appraisal on the basis of the experts’ team’s report evaluating dossiers of technical proposals.

3. The bid solicitor shall notify the list of investors meeting technical requirements to all investors participating in bidding and invite investors participating in bidding to attend the ceremony to open dossiers of financial-commercial proposals, clearly stating the time and venue of the ceremony.

Article 58. Opening of dossiers of financial-commercial proposals 

1. Dossiers of financial-commercial proposals of investors on the list of investors meeting technical requirements shall be opened publicly at the time and venue stated in the notice of the list of investors meeting technical requirements. The bid opening record shall be sent to all investors participating in bidding.

2. The representative of the bid solicitor shall sign originals of applications for participation in bidding, letters of authorization of at-law representatives of investors (if any); joint-name agreements (if any); bid security; and important contents of each dossier of financial-commercial proposals.

Article 59. Evaluation of dossiers of financial-commercial proposals

1. Examination of validity of a dossier of financial-commercial proposals, including:

a/ Examining the number of originals and copies included in the dossier;

b/ Examining papers included in the dossier, including: application for participation in bidding for financial-commercial proposals and other papers included in the dossier;

c/ Examining the consistency between originals and copies to serve the evaluation of the dossier.

2. Evaluation of validity of dossiers of financial-commercial proposals

A dossier of financial-commercial proposals of an investor shall be evaluated as valid when it fully meets the following conditions:

a/ The original dossier of financial-commercial proposals is available;

b/  The dossier includes a valid application for participation in bidding for financial-commercial proposals;

c/ The total investment; prices and charge rates of products and public services (if any); state capital as support for construction of infrastructure facilities or systems (if any); amount to be remitted into the state budget or contract implementation duration proposed in the application for participation in bidding are precise and fixed, inscribed in figures and words and are suitable with the investor’s financial plan; the investor may not propose different values or time periods for a single item or impose conditions that create disadvantages to competent agencies or the bid solicitor;

d/ The validity of the dossier meets requirements stated in the bidding dossier.

3.  Investors whose dossiers of financial-commercial proposals are valid shall be considered for detailed financial-commercial evaluation. The detailed evaluation of dossiers of financial-commercial proposals and the ranking of investors shall be carried out according to the method and criteria stated in the bidding dossier.

4. After evaluating bid dossiers, the experts’ team shall make a report and send it to the bid solicitor for consideration. Such report must clearly state:

a/ A ranking list of investors;

b/ A list of investors that do not meet requirements and are disqualified; reasons for disqualification;

c/ Remarks on competitiveness, fairness, transparency and economic efficiency in the process of investor selection. In case of failure to ensure competitiveness, fairness, transparency and economic efficiency, the report must state the reasons and recommend solutions.

Sub-section 2

FOR PROJECTS APPLYING COMPETITIVE NEGOTIATION UNDER CLAUSE 2 OR 3, Article 38 OF THE PPP LAW

Article 60. Opening of bid dossiers

1. Bid dossiers of investors on the shortlist shall be opened publicly within 1 hour after the time of bid closing. The bid-closing record shall be sent to all investors on the shortlist.

2. The representative of the bid solicitor shall sign originals of applications for participation in bidding, letters of authorization of at-law representatives of investors (if any); joint-name agreements (if any); and important contents of each bid dossier.

Article 61.  Evaluation of bid dossiers

1. The bid solicitor shall not examine and evaluate the validity of bid dossiers. Investors shall make written commitments that they are not listed in two or more bid dossiers in the capacity as independent investor or joint-name member; are not being banned from making investment in the PPP form in accordance with the PPP law; not being banned from participating in bidding in accordance with the bidding law; and have eligibility as specified in Article 29 of the PPP Law.

2. Evaluation of capacity

Investors shall make a written commitment on satisfaction of the requirement on capacity for project implementation. If there are any changes in information declared in dossiers of invitation to negotiation, investors shall update information on their capacity and the bid solicitor shall organize re-evaluation according to the evaluation method and criteria stated in the dossier of invitation to negotiation.

3. Detailed evaluation of bid dossiers

a/ Detailed technical evaluation shall be carried out according to the technical evaluation method and criteria stated in the bidding dossier. Investors meeting technical requirements shall be considered for financial-commercial evaluation;

b/ Detailed financial-commercial evaluation and ranking of investors shall be carried out according to the method and criteria stated in the bidding dossier;

c/ The clarification of bid dossiers must comply with Article 54 of this Decree. Not to carry out the appraisal and approval of the list of investors meeting technical requirements.

4. After evaluating bid dossiers, the experts’ team shall make a report and send it to the bid solicitor for consideration. The report must have the contents specified in Clause 4, Article 59 of this Decree. 

Section 6

SUBMISSION, APPRAISAL, APPROVAL AND PUBLICIZATION OF INVESTOR SELECTION RESULTS

Article 62. Submission, appraisal and approval of investor selection results

1. Based on reports on results of evaluation of bid dossiers, bid solicitors shall submit to competent agencies investor selection results and concurrently send them to appraising units, clearly stating their opinions on evaluation contents of experts’ teams.

2. Appraising units shall appraise investor selection results under Clauses 3, 4 and 5, Article 72 of this Decree before approval.

3. Competent agencies shall approve investor selection results based on requests for approval and reports on appraisal of investor selection results.

4. In case of success in selecting a bid-winning investor, a document approving the investor selection result must have the following contents:

a/ Name, location and size of the project;

b/ Name of the bid-winning investor;

c/ Type of the contract;

d/ Time limit for formulation of a feasibility study report and approval of the project, for projects applying high technologies or new technologies;

dd/ Total investment and structure of funding sources of the project;

e/ Prices and charges of products or public services (if any); state capital provided in support of construction of infrastructure facilities and systems (if any); remittances into the state budget or period of contract performance (if any); and share of turnover (if any);

g/ Other contents (if any).

5. For cases of bid cancellation specified at Point a, Clause 1, Article 34 of PPP Law, a bid cancellation document must clearly state reasons for bid cancellation and responsibilities of related parties upon bid cancellation.

6. For PPP projects funded with state capital:

a/ Based on decisions approving investor selection results and projects, medium-term public investment plans, public investment funds for use in PPP projects shall be incorporated in annual public investment plans;

b/ Based on decisions approving investor selection results, projects and investment policy, contract-signing agencies shall estimate annual current expenditures and lawful revenues reserved for current expenditures of state agencies and public non-business units to pay to PPP project enterprises in accordance with the law on the state budget.

Article 63. Publicization of investor selection results

1. Bid solicitors shall publicize information on investor selection results under Point b, Clause 1, and Point b, Clause 2, Article 4 of this Decree.

2. Bid solicitors shall send notices of investor selection results to investors participating in bidding within the time limit specified at Point b, Clause 2, Article 4 of this Decree. A notice of investor selection results must contain:

a/ The information specified in Clause 4, Article 62 of this Decree;

b/ A list of unselected investors and brief information on reasons for not selecting each of these investors (for projects applying open bidding or competitive negotiation);

c/ Plans on contract negotiation, completion and signing with the selected investor.

Section 7

NEGOTIATION, FINALIZATION AND SIGNING OF PPP PROJECT CONTRACTS AND DISCLOSURE OF INFORMATION ON PPP PROJECT CONTRACTS

Article 64. Negotiation and finalization of PPP project contracts

1. Based on investor selection results, bid-winning investors shall be invited to negotiation and finalize PPP project contracts. In case a bid-winning investor fails to appear or refuses to negotiate and finalize the contract, its/his/her bid security shall not be refunded, except in force majeure cases specified by law.

2. The negotiation and finalization of a PPP project contract shall be based on the following grounds:

a/ The decision approving investor selection results;

b/ The report on evaluation of bid dossiers;

c/ The bid dossier and documents modifying and clarifying the bid dossier (if any) of the investor;

d/ The bidding dossier and documents modifying and clarifying the biding dossier (if any).

3. The negotiation and finalization of a PPP project contract must not change basic contents of the bid dossier.

4. Contents of negotiation and finalization of a PPP project contract:

a/ Negotiation on and finalization of contents that lacks details, are unclear or inappropriate, or contain between the bidding dossier and bid dossier, and inconsistencies among different contents in the bid dossier that might lead to problems or disputes or affect responsibilities of the parties in the course of contract performance;

b/ Negotiation on the bid dossier’s errors other than disparities, impositions of conditions or omissions of basic contents and request for provision of necessary information or documents by the investor within a reasonable time limit to correct such errors;

c/ Negotiation on issues arising in the course of investor selection (if any) in order to complete the project’s detailed contents;

d/ In addition to the contents specified at Points a and b of this Clause, the bid solicitor shall report to the competent agency for decision other necessary contents of contract negotiation and finalization suitable to the type of the project contract.

5. Investors may neither change, withdraw nor refuse to implement basic contents proposed in bid dossiers that have been evaluated by bid solicitors as meeting requirements of bidding dossiers, unless changes proposed by investors bring about higher efficiency for projects.

6. In the course of negotiation and finalization of a PPP project contract, the parties shall finalize a draft contract.

7. If the negotiation and finalization of a PPP project contract fail, the bid solicitor shall report such to a competent agency for the latter to consider and decide to investor selection results and invite the investor ranked to the negotiation and finalization of the contract. In case the negotiation and finalization of a contract with investors that are in the shortlist and meet  requirements of the bidding dossier fail, the bid solicitor shall report such to the competent agency for consideration and decision on bid cancellation under Point a, Clause 1, Article 34 of PPP Law.

Article 65. Signing of PPP project contracts and disclosure of information on PPP project contracts

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

2. Contract-signing agencies shall disclose information on project contracts on the Vietnam National E-Procurement System under Point c, Clause 1 and Point c, Clause 2, Article 4 of this Decree. To-be-disclosed information includes:

a/ Name of the project; identification number and time of signing of the project contract;

b/ Name and address of the competent agency and contract-signing agency;

c/ Name and address of the investor; name and address of the established PPP project enterprise;

d/ The project implementation location, to-be-used land area;

dd/ Basic parameters for supervision of quality of infrastructure facilities and systems and products or public services to be provided by the PPP project enterprise during operation;

e/ Total investment; structure of funding sources of the project; state capital (if any) in the PPP project; remittances into the state budget or the contract performance period (if any) under the PPP project; product and public service prices and charges, charge collection forms and places (if any); and share of turnover (if any);

g/ Type and term of the contract, projected time of handover of work items under the project (if any);

h/ Other necessary information.

3. In case the modification or additional signing of a project contract annex leads to  a change in the information specified in Clause 2 of this Article, the contract-signing agency shall update the change on the Vietnam National  E-Procurement System within 7 days after the contract annex is signed.

4. It is encouraged to post the information specified in Clause 2 of this Article on websites of ministries, central agencies, other agencies, provincial-level People’s Committees or other mass media.

Section 8

INVESTOR APPOINTMENT AND INVESTOR SELECTION IN SPECIAL CASES

Sub-section 1

INVESTOR APPOINTMENT FOR THE PROJECTS SPECIFIED AT POINT A, CLAUSE 1, ARTICLE 39 OF THE PPP LAW

Article 66. Principles of investor appointment

1. Contents of dossiers in steps of preparation for investor appointment; organization of investor appointment; submission, appraisal, approval and publicization of investor selection results; contract negotiation, finalization and signing and disclosure of project contract information shall be the same as those in equivalent steps of the open bidding process. For contents classified as state secrets, disclosure of information must comply with the law on protection of state secrets.

2. When implementing the process of investor appointment, bid solicitors shall exchange information, dossiers and documents with investors proposed to be appointed. It is not required to issue provisions on ranking of investors and appraise and approve lists of investors meeting technical requirements. In the course of evaluation of bid dossiers, bid solicitors may invite investors to come to clarify or modify or supplement necessary contents of their bid dossiers.

3. After evaluating bid dossiers, experts’ teams shall make and send reports to bid solicitors for consideration. Such a report must clearly state:

a/ Remarks on fairness, transparency and economic efficiency in the course of organization of investor selection. In case of failure to ensure fairness, transparency and economic efficiency, the report must clearly state reasons for  such failure and recommend handling measures;

b/ Contents of the bidding dossier that remain incompliant with the PPP Law, that lead to unclear or different understanding in the course of implementation or likely falsify investor selection results (if any); recommendations on handling measures.

4. In case the negotiation and finalization of contracts with investors proposed to be appointed fail, bid solicitors shall report such to competent agencies for consideration and decision on bid cancellation under Point a, Clause 1, Article 34 of the PPP Law.

Sub-section 2

INVESTOR APPOINTMENT UNDER POINT B, CLAUSE 1, ARTICLE 39 OF THE PPP LAW

Article 67. Identification of to-be-appointed investors

1. Based on jobs that need to be done in order to ensure uninterrupted implementation of a project, the contract-signing agency shall coordinate with the lender in:

a/ Determining requirements on capacity, experience and eligibility of the investor proposed to be appointed;

b/ Preparing a draft contract under Article 47 of the PPP Law and the guidance on preparation of model PPP project contracts provided in Appendix VI to this Decree based on the remaining scope of the project;

c/ Evaluating capacity, experience and eligibility of the investor proposed to be appointed. Eligibility evaluation must comply with Article 29 of the PPP Law and Clause 5, Article 29 of this Decree.

2. Based on a report of the contract-signing agency, a competent authority specified in Clause 2, Article 39 of the PPP Law shall decide on:

a/ Form of investor appointment, name of the bid solicitor;

b/ The draft contract;

c/ Name of the investor proposed to be appointed.

Article 68. Investor appointment

1. Within 30 days after a competent authority makes the decision, the bid solicitor, investor and related parties (if any) shall negotiate, finalize and sign the contract.

2. Based on contract negotiation and finalization results, the competent agency shall approve investor selection results.

3. PPP project contracts shall be signed between parties under Articles 46, 47, 48 and 49 of the PPP Law and the guidance on preparation of model PPP project contracts provided in Appendix VI to this Decree.

4. Publicization of investor selection results and disclosure of information on project contracts must comply with Points b and c, Clause 1, and Clause 2, Article 4 of this Decree.

Sub-section 3

INVESTOR SELECTION IN SPECIAL CASES

Article 69. Procedures for appraisal and approval of investor selection plans in special cases

1. For a PPP project that has special and peculiar conditions that make it impossible to apply open bidding, competitive negotiation or investor appointment or in case the application of such modes is possible but will affect national interests, after obtaining a decision on investment policy, the competent agency shall make a dossier of proposal on application of the investor selection plan in a special case specified in Clause 2, Article 40 of the PPP Law and submit it to the Prime Minister and concurrently send it to the Ministry of Planning and Investment for appraisal.

2. Within 45 days after receiving a complete dossier, the Ministry of Planning and Investment shall appraise the investor selection plan in a special case and report it to the Prime Minister for consideration and decision.

3. Based on the proposal dossier of the competent agency and appraisal report of the Ministry of Planning and Investment, the Prime Minister shall consider and decide on policy regarding the investor selection plan in a special case.

Article 70. Implementation of investor selection plans in special cases

1. Based on decisions of the Prime Minister, authorities competent to approve projects shall decide on investor selection in special cases and at the same time approve detailed plans.

2. Competent agencies shall select investors under approved investor selection plans in special cases. Selected investors must meet requirements on capacity and experience and propose appropriate and feasible project implementation plans under investment policy decisions and PPP project approval decisions.

Section 9

APPRAISAL AND SETTLEMENT OF PETITIONS REGARDING INVESTOR SELECTION

Sub-section 1

APPRAISAL IN INVESTOR SELECTION

Article 71. Appraisal of dossiers of invitation to prequalification, dossiers of invitation to negotiation and bidding dossiers

1. A dossier of request for appraisal and approval of a dossier of invitation to prequalification or a dossier of invitation to negotiation must comprise:

a/ A written request for approval of a dossier of invitation to prequalification or a dossier of invitation to negotiation;

b/ A draft dossier of invitation to prequalification or a draft dossier of invitation to negotiation;

c/ Copies of the investment policy decision and PPP project approval decision (if any);

d/ Other relevant documents.

2. A dossier of request for appraisal and approval of a bidding dossier must comprise:

a/ A written request for approval of a bidding dossier;

b/ A draft bidding dossier;

c/ Copies of the investment policy decision and PPP project approval decision;

d/ A document approving prequalification results (if any);

dd/ Other relevant documents.

3. Appraisal contents include:

a/ Examination of documents used as a basis for preparing a dossier of invitation to prequalification, a dossier of invitation to negotiation or a bidding dossier;

b/ Examination of conformity of contents of the draft dossier of invitation to prequalification, draft dossier of invitation to negotiation or draft bidding dossier with contents of the investment policy decision and PPP project approval decision and compliance with the PPP Law and other relevant laws;

c/ Consideration of divergent opinions (if any) of organizations and individuals involved in preparing the dossier of invitation to prequalification, dossier of invitation to negotiation or bidding dossier;

d/ Other related contents.

4. An appraisal report includes:

a/ An overview of the project, legal grounds for preparing the dossier of invitation to prequalification, dossier of invitation to negotiation or bidding dossier;

b/ Remarks and opinions of the appraising unit on legal grounds, compliance with the PPP Law and other relevant laws; opinions agreeing or disagreeing with contents of the draft dossier of invitation to prequalification, draft dossier of invitation to negotiation or draft bidding dossier;

c/ Recommendations and petitions of the appraising unit about the approval of the dossier of invitation to prequalification, dossier of invitation to negotiation or bidding dossier; measures for handling of cases in which the dossier of invitation to prequalification, dossier of invitation to negotiation or bidding dossier is detected to be incompliant with the PPP Law and other relevant laws; measures to handle cases in which there are insufficient grounds for approval of the dossier of invitation to prequalification, dossier of invitation to negotiation or bidding dossier;

d/ Other opinions (if any).

5. In the course of appraisal, when necessary, the appraising unit shall organize a meeting for parties to make clarification before making an appraisal report.

Article 72. Appraisal of prequalification results, lists of investors meeting technical requirements, and investor selection results

1. A dossier of request for appraisal of prequalification results must comprise:

a/ The bid solicitor’s report on results of evaluation of prequalification participation dossiers, clearly stating its opinions on opinions, recommendations and petitions of the experts’ team;

b/ A report on results of evaluation of prequalification participation dossiers;

c/ Copies of the dossier of invitation to prequalification, minutes of bid closure and opening, prequalification participation dossiers of investors and other relevant necessary documents.

2. A dossier of request for appraisal of the list of investors satisfying technical requirements must comprise:

a/ The bid solicitor’s report on results of evaluation of dossiers of technical proposals;

b/ A report on results of evaluation of dossiers of technical proposals;

c/ Copies of the bidding dossier, minutes of bid closure and opening, dossiers of technical proposals of investors and other relevant necessary documents.

3. A dossier of request for appraisal of investor selection results must comprise:

a/ The bid solicitor’s report on investor selection results;

b/ A report on results of evaluation of bid dossiers;

c/ Copies of the bidding dossier, minutes of bid closure and opening, bid dossiers of investors and other relevant necessary documents.

4. Appraisal must cover:

a/ Examination of documents used as a basis for prequalification and organization of investor selection;

b/ Examination of compliance with regulations on time limits in the course of prequalification and organization of investor selection;

c/ Examination of the evaluation of prequalification participation dossiers and bid dossiers; compliance with the PPP Law and other relevant laws in the course of evaluation of prequalification participation dossiers and dossiers of technical proposals; bid dossiers;

d/ Consideration of divergent opinions (if any) of the bid solicitor and experts’ team; or of individuals in the experts’ team;

dd/ Other related contents.

5. An appraisal report must include:

a/ An overview of the project, and legal grounds for prequalification and organization of investor selection;

b/ Summary of organization of prequalification and proposals of the submitting agency on prequalification results, the list of investors satisfying technical requirements, and investor selection results;

c/ Remarks on compliance with the PPP Law and other relevant laws;

d/ Opinions agreeing or disagreeing with prequalification results, the list of investors satisfying technical requirements and investor selection results; proposals on measures for handling of cases in which failure to comply with the PPP Law are detected in the course of evaluation or measures to handle cases in which there are insufficient grounds for making conclusions on evaluation results;

dd/ Opinions of the appraising unit on assurance of competitiveness, fairness and transparency of the prequalification and investor selection;

e/ Recommendations and petitions of the appraising unit;

g/ Other opinions.

Sub-section 2

SETTLEMENT OF PETITIONS REGARDING INVESTOR SELECTION

Article 73. Conditions for consideration and settlement of petitions

1. For petitions about matters arising in the investor selection process:

a/ Petitions must be made by investors participating in bidding. Petitions about dossiers of invitation to prequalification, dossiers of invitation to negotiation or bidding dossiers must be made by investors on the Vietnam National E-Procurement System;

b/ Petitions must be signed and sealed by lawful representatives of investors or persons undersigning prequalification participation applications or bidding participation applications (if any);

c/ Bid solicitors and competent agencies shall receive petitions under Clause 1, Article 96 of the PPP Law;

d/ Settlement of petitions must comply with the petition settlement process specified in Clause 1, Article 96 of the PPP Law;

dd/ Petitions must be about issues for which investors have not initiated a lawsuit at court.

2. For petitions about investor selection results:

a/ Petitions must be made by investors participating in bidding;

b/ Petitions must be signed and sealed by lawful representatives of investors or persons undersigning prequalification participation applications or bidding participation applications (if any);

c/ Bid solicitors and competent agencies or standing bodies of advisory councils shall receive petitions under Clause 2, Article 96 of the PPP Law;

d/ Settlement of petitions must comply with the petition settlement process specified in Clause 2, Article 96 of the PPP Law;

dd/ Petitions must be about issues for which investors have not initiated a lawsuit at court;

e/ Expenses for petition settlement shall be paid by investors making petitions to standing bodies of advisory councils, for petitions to be settled by competent agencies. Payable expenses shall equal 0.02% of total investment of the project of the investor making the petition ant be at least VND 20,000,000 (twenty million) and at most VND 200,000,000 (two hundred million).

Article 74. Advisory councils

1. Chairpersons of advisory councils:

a/ The chairperson of the central advisory council is a representative of the Ministry of Planning and Investment. The central advisory council shall provide consultations on settlement of petitions about projects falling under the investment policy-deciding competence of the National Assembly or Prime Minister.

b/ The chairperson of an advisory council of a ministry, central agency or another agency (below referred to as the ministerial-level advisory council) is the head of an agency tasked to manage investor selection of such agency. The chairperson of a local advisory council is the director of a provincial-level Department of Planning and Investment. Ministerial-level and local advisory councils shall provide consultations on settlement of petitions about projects falling under the investment policy-deciding competence of or approved by ministers or heads of central agencies and other agencies, provincial-level People’s Councils, except projects specified at Point a of this Clause.

2. Members of advisory councils

a/ Members of the central advisory council are representatives of the Ministry of Planning and Investment, competent agencies, ministries, central agencies and other agencies and related trade associations. Members of a ministerial-level advisory council are representatives of related units of such agencies, competent agencies and related trade associations. Members of a local advisory council are representatives of a provincial-level Department of Planning and Investment, competent agencies and specialized agencies of the provincial-level People’s Committee and related trade associations;

b/ Depending on characteristics of each project and in case of necessity, the chairperson of an advisory council may invite individual experts in related fields to join as members of the advisory council;

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 pre-qualification, dossier of invitation to negotiation or bidding dossier or evaluating prequalification participation dossiers, dossiers for participation in negotiation or bid dossiers;

- An individual who directly appraises the dossier of invitation to pre-qualification, dossier of invitation to negotiation or bidding dossier, investor prequalification results, the list of investors satisfying technical requirements or investor selection results;

- The person approving investor prequalification results, the list of investors satisfying technical requirements or investor selection results.

3. Operations of advisory councils

a/ An advisory council shall be formed under Point a, Clause 2, Article 96 of the PPP Law within 5 working days after an investor’s petition is received;

b/ An advisory council shall work on a case-by-case basis and under the collegial and majority voting principle; and report its working results to the competent agency for consideration and decision;

c/ Each member may reserve his/her opinions and bear responsibility before law for his/her opinions.

4. Standing bodies of advisory councils:

a/ The standing body of the central advisory council is a unit of the Ministry of Planning and Investment assigned the task of managing investor selection. The standing body of a ministerial-level advisory council is a unit of a ministerial-level agency assigned the task of managing investor selection. The standing body of a local-level advisory council is a unit of a provincial-level Department of Planning and Investment assigned the task of managing investor selection. standing bodies are not composed of individuals directly involved in appraising lists of investors satisfying technical requirements and investor selection results for projects;

b/ Standing bodies of advisory councils shall perform administrative tasks as stipulated by chairpersons of advisory councils; receive and manage expenses paid by investors that make petitions under Point e, Clause 2, Article 73 of this Decree.

Article 75. Settlement of petitions regarding investor selection

1. The time limit for settlement of a petition of an investor specified in Clauses 1 and 2, Article 96 of the PPP Law shall be counted from the time such petition meets the conditions for consideration and settlement specified in Article 73 of this Decree.

2. The bid solicitor or competent agency shall send a notice to the investor, clearing stating its refusal to consider and settle the petition in case the petition does not meet the conditions specified in Article 73 of this Decree.

3. An investor may withdraw its/his/her written petition pending the petition settlement. A written request for withdrawal of a petition must be signed or sealed by a lawful representative of the investor or the person undersigning the prequalification participation application or bidding participation application (if any).

4. A written reply about petition settlement results to the investor must contain conclusions on contents of the latter’s petition, clearly stating:

a/ Measures, methods and time for remedying consequences (if any) if the petition is concluded to be correct;

b/ Reasons in case the petition is concluded to be incorrect.

5. Refund of expenses for petition settlement

a/ In case an investor’s petition is concluded to be correct, concerned organizations and individuals shall pay such investor a money amount equal to the amount of expenses such investor has paid for the settlement of its/his/her petition;

b/ In case an investor’s petition is concluded to be incorrect,  expenses it/he/she has paid for the settlement of the petition shall not be refunded.

6. For petitions about investor selection results under the settlement responsibility of competent agencies, advisory councils shall allocate presumptive expenses to council members and standing bodies and other expenses for petition settlement.

In case an investor withdraws its/his/her petition, its/he/she shall receive half of expenses for petition settlement it/he/she has already paid provided that no advisory council has been formed or an advisory council has been formed but not yet held its meeting. If the advisory council has held its meeting, expenses the investor has paid for the settlement of the petition shall not be refunded.

Chapter V

CERTIFICATION OF COMPLETION AND TRANSFER OF INFRASTRUCTURE FACILITIES AND SYSTEMS, TERMINATION OF PPP PROJECT CONTRACTS

Section 1

CERTIFICATION OF COMPLETION AND TRANSFER OF INFRASTRUCTURE FACILITIES AND SYSTEMS

Article 76. Certification of completion of infrastructure facilities and systems

1. After completing the construction stage, PPP project enterprises shall make dossiers of request for certification of completion of infrastructure facilities and systems. A dossier of request for certification of completion of infrastructure facilities and systems must comprise:

a/ A request for examination and certification of completion of infrastructure facilities and systems;

b/ A document approving pre-acceptance test results of a competent authority as specified by the construction law;

c/ A document on pre-acceptance test of construction work items, a written certification of completed construction volumes of facilities of mini-projects using public investment funds (for a PPP project consisting of mini-projects using public investment funds as specified at Point a, Clause 5, Article 70 of the PPP Law) of the contract-signing agency.

2. For projects subject to investment phasing for different stages, a dossier specified in Clause 1 of this Article shall be made correspondingly to each stage.

3. Within 30 days after receiving a dossier specified in Clause 1 of this Article, the contract-signing agency shall grant a written certification of completion of infrastructure facilities and systems to the PPP project enterprise. When having doubts about quality of infrastructure facilities and systems, the contract-signing agency may hire consultants for quality inspection under Clause 3, Article 59 of the PPP Law.

4. In case a PPP project consists of mini-projects using public investment funds as specified at Point a, Clause 5, Article 70 of the PPP Law, the contract-signing agency shall pay at most 50% of the estimated value of mini-projects after the project enterprise completes the construction of works under mini-projects and pay the remaining value after the project enterprise is certified to have completed the construction of works under Clause 3 of this Article.

Article 77. Principles and conditions for transfer and receipt of infrastructure facilities and systems of PPP projects

1. Except cases of premature termination of PPP project contracts specified in Article 81 of this Decree, infrastructure facilities and systems of a PPP project may only be received when the PPP project enterprise fully satisfies the following conditions:

a/ The construction of infrastructure facilities and systems conforms to regulations and standards specified in the construction law and other relevant laws, and terms and clauses of the project contract;

b/ Infrastructure facilities and systems of the PPP project are neither put in mortgage nor subject to any restrictions on ownership;

c/ Infrastructure facilities’ and systems’ utilities, capacity and quality conform to technical, technological and quality requirements stated in the project contract at the time of transfer and are qualified for future use;

d/ The transfer and receipt of infrastructure facilities and systems must not affect the uninterruptedness and quality provision of products or public services.

2. Contract-signing agencies shall report to competent authorities for the latter to assign agencies and units that are capable and have sufficient necessary resources for operation, commercial operation and maintenance of infrastructure facilities and systems and complete the transfer thereof before the deadline specified by law and project contracts, not affecting the uninterruptedness and quality provision of public products and services.

Article 78. Procedures for transfer and receipt of infrastructure facilities and systems

1. For projects implemented under BOT or BLT contracts:

a/ At least 1 year before the date of termination of the PPP project contract as agreed upon in the project contract, the PPP project enterprise shall publicly announce on a newspaper the transfer of infrastructure facilities and systems, procedures and time limit for liquidation of the PPP project contract, payment of loans, and concurrently send a dossier of request for transfer of infrastructure facilities and systems under Clause 1, Article 79 of this Decree to the contract-signing agency;

b/ Within 30 days after receiving a dossier of request for transfer of infrastructure facilities and systems, the contract-signing agency shall assume the prime responsibility for, and coordinate with a state management agency in charge of assets, a financial agency and other related agencies (if necessary) in:

- Organizing the assessment of quality, value and state of infrastructure facilities and systems based on the principles and conditions agreed upon in the project contract.

- Drawing up a list of to-be-transferred assets.

- Making a minutes of identification of asset damage (if any) in order to request the project enterprise to repair and maintain assets.

- Signing a minutes of receipt of transferred assets, in case infrastructure facilities and systems satisfying requirements.

- Reporting to the competent agency for assignment of an agency or a unit to operate or commercially operate and maintain infrastructure facilities and systems under Clause 4, Article 80 of this Decree;

c/ The contract-signing agency shall request the State Audit Office of Vietnam to audit the value of the PPP project’s assets for use as a basis for accounting of asset increase in accordance with the law on management and use of public assets.

d/ At least 30 days before the date of termination of the PPP project contract as stated in the contract, the contract-signing agency shall make a dossier for establishment of all-people ownership and report it to the competent agency, and make an asset handling plan and report it to a competent agency for approval in accordance with the law on management and use of public assets;

dd/ The assigned agency or unit shall receive, operate or commercially operate and maintain infrastructure facilities and systems under regulations.

2. For PPP projects implemented under BTO or BTL contracts:

a/ In case infrastructure facilities and systems fully meet the conditions for certification of completion specified in Article 76 of this Decree, the PPP project enterprise shall concurrently send a dossier of request for transfer of infrastructure facilities and systems to the contract-signing agency;

b/ The contract-signing agency shall sign a minutes of receipt of to-be-transferred assets and make a dossier for establishment of all-people ownership and report it to the competent agency in accordance with the law on management and use of public assets;

c/ The PPP project enterprise shall manage and operate infrastructure facilities and systems under the project contract;

d/ At least 1 year before the date of termination of the project contract as stated in the contract, the PPP project enterprise shall publicly announce on a newspaper the transfer of assets, time limit for liquidation of the contract, and payment of debts; and concurrently send a written request for transfer of infrastructure facilities and systems to the contract-signing agency;

dd/ Within 30 days after receiving a written request, the contract-signing agency shall assume the prime responsibility for, and coordinate with a state management agency in charge of assets, a financial agency and other related agencies (if necessary) in, performing the jobs specified at Points b and c, Clause 1 of this Article;

e/ At least 30 days before the date of termination of the PPP project contract as stated in the contract, the contract-signing agency shall coordinate with the agency or unit assigned to operate or commercially operate and maintain infrastructure facilities and systems in organizing the implementation of contents specified at Points d and dd, Clause 1 of this Article.

Article 79. Dossiers of request for transfer of infrastructure facilities and systems

1. For PPP projects implemented under BOT or BLT contracts, a dossier of request for transfer of infrastructure facilities and systems must comprise:

a/ A written request for transfer of infrastructure facilities and systems;

b/ A report on infrastructure facilities and systems’ satisfaction of principles and conditions specified in Article 77 of this Decree;

c/ Other documents specified in the contract and a written agreement specified at Point a, Clause 1, Article 78 of this Decree.

2. For PPP projects implemented under BTO or BTL contracts, the project enterprise shall add a report on infrastructure facilities and systems’ satisfaction of principles and conditions specified in Article 77 of this Decree to a dossier of request for certification of completion of infrastructure facilities and systems for carrying out procedures for transfer.

Section 2

TERMINATION OF PPP PROJECT CONTRACTS

Article 80. Termination of PPP project contracts according to the schedule agreed upon in contracts

1. Contract-signing agencies, investors and PPP project enterprises shall terminate PPP project contracts according to the schedule stated in project contracts so as to obtain grounds for liquidation of contracts.

2. At least 1 year before the date of termination of a PPP project contract as stated in the contract, the contract-signing agency, investor and PPP project enterprise shall carry out the following jobs:

a/ Certifying fulfilled obligations and responsibilities of contracting parties for jobs that need to be performed within 1 year;

b/ Reaching agreement on a mechanism for coordination in carrying out procedures for transfer of infrastructure facilities and systems specified in Article 78 of this Decree, for PPP projects subject to transfer procedures; principles and conditions for handover of cleared land areas, for projects implemented under BOO contracts; conditions for transfer of infrastructure facilities and systems, for projects implemented under O&M contracts;

c/ Reaching agreement on a plan on transfer of technology, labor, dossiers of infrastructure facilities and systems serving the operation or commercial operation and maintenance of infrastructure facilities and systems to the contract-signing agency or the agency or unit assigned to operate or commercially operate and maintain infrastructure facilities and systems;

d/ Reaching agreement on contents to ensure uninterrupted and quality provision of products or public services, including the PPP project enterprise’s obligation to continuously provide products or public services until the agency or unit assigned tasks specified in Clause 4 of this Article receives infrastructure facilities and systems;

dd/ Other necessary jobs as agreed upon in the project contract.

3. Agreements on the jobs specified in Clause 2 of this Article must be made in writing and signed by contracting parties.

4. Based on the written agreements specified in Clause 2 of this Article, the contract-signing agency shall report to the competent agency on:

a/ The assignment of an agency or a unit to perform the task of receiving infrastructure facilities and systems for operation or commercial operation and maintenance, ensuring satisfaction of conditions specified in Clause 2, Article 77 of this Decree. In case such assignment falls beyond its competence, the competent agency shall report it to the Prime Minister for consideration and decision;

b/ The request for preparation by an assigned agency or unit specified at Point a of this Clause of funding sources and other necessary resources for receipt, operation or commercial operation and maintenance of infrastructure facilities and systems.

Article 81. Premature termination of PPP project contracts

1. Procedures for premature termination of a PPP project contract are as follows:

a/ One of the contracting parties requests in writing premature termination of the PPP project contract, clearly stating the reason for premature termination;

b/ The contracting parties agree on conditions for premature termination of the project contract;

c/ The contracting parties carry out procedures for liquidation of the project contract under Article 68 of PPP Law.

2. An agreement specified at Point b, Clause 1 of this Article must be made in writing, comprising the following principal contents:

a/ Reasons for premature termination of the project contract in accordance with Clause 2, Article 52 of the PPP Law;

b/ Remaining obligations of the contracting parties, including the obligation to transfer infrastructure facilities and systems;

c/ Jobs that need to be performed to ensure the uninterrupted and quality provision of public products and services after the contract is terminated;

d/ Contents on limits of civil liability and exemption from civil liability of either of the two parties;

dd/ Time for the contracting parties to remedy; tentative plans on payment of  expenses for premature termination of the contract; and selection of an audit firm (if necessary);

e/ Other necessary contents specified by the civil law and the PPP project contract.

3. The contracting parties may unilaterally terminate the PPP project contract when one of the contracting parties seriously breaches contractual obligations specified at Point d, Clause 2, Article 52 of the PPP Law.

4. When a PPP project contract is prematurely terminated and it is necessary to select a substitute investor to sign a new contract, the contract-signing agency shall notify the lender of coordination in identifying an investor proposed to be appointed as a replacement investor. The investor appointment shall be carried out under Articles 67 and 68 of this Decree.

5. Contract-signing agencies shall ensure safety and prevent degradation of infrastructure facilities and systems or operate or commercially operate infrastructure facilities and systems in order to ensure uninterrupted provision of public products and services.

Article 82. Expenses for handling cases of premature termination of contracts

1. PPP project contracts must state formulas or methods for determining expenses for handling cases of premature termination as specified in Clause 2, Article 52 of PPP Law.

2. In case a PPP project contract must be prematurely terminated because of the contract-signing agency’s serious breach of contractual obligations, compensation shall be paid to the investor and project enterprise as follows:

a/ Forming a project using public investment funds. Procedures for approval of the investment policy decision and project investment decision must comply with the Law on Public Investment;

b/ Using contingency amounts of public investment funds;

c/ Using other lawful funding sources.

3. Procedures and funds for acquisition of PPP project enterprises must comply with the law on management and use of state capital invested in production and business at enterprises.

4. After the parties agree on conditions for premature termination of the project contract, the contract-signing agency shall report to the competent agency for consideration and decision cases in which expenses for premature termination of contracts must be paid; methods, value and funding sources used for paying compensation to the investor and project enterprise if the state party is liable to make such payment.

Chapter VI

HANDLING OF CIRCUMSTANCES AND HANDLING OF VIOLATIONS IN PPP INVESTMENT

Section 1

HANDLING OF INVESTOR SELECTION CIRCUMSTANCES IN THE COURSE OF PROJECT IMPLEMENTATION

Article 83. Handling of circumstances

1. After the first investor submits a project proposal dossier, if a competent agency receives a project proposal dossier of another investor with the same objective and location of the project while ensuring conformity with the master plan of the project, the competent agency shall consider and handle this circumstance as follows:

a/ If receiving the project proposal dossier of another investor within 10 days after receiving the project proposal dossier of the first investor, it shall assign its specialized agency to consider and work out a method for evaluation to select the most feasible and effective project proposal dossier based on the following criteria:

- Conditions specified in Clause 1, Article 26 of the PPP Law;

- Necessity of investment;

- Technical feasibility; 

- Socio-economic efficiency of the project;

- Financial feasibility of the project;

- Capacity and experience of the investor to organize the preparation of the prefeasibility study report and feasibility study report of the project.

b/ If receiving the project proposal dossier of another investor after 10 days from the date of receiving the project proposal dossier of the first investor, it may not consider the dossier and shall return such dossier in its original state to the investor.

2. For a project applying open bidding with prequalification or applying competitive negotiation specified in Clause 2 or 3, Article 38 of the PPP Law, in case fewer than 3 investors meet requirements of dossiers of invitation to prequalification or dossiers of invitation to negotiation, the bid solicitor shall, depending on specific conditions of the project, report such to a competent agency for consideration and handling by either of the following methods:

a/ Immediately approving the shortlist of investors meeting requirements; or,

b/ Reviewing and modifying dossiers of invitation to prequalification or dossiers of invitation to negotiation (if necessary) and again carrying out procedures for prequalification or invitation to competitive negotiation in order to add investors to the shortlist. In case of modification of dossiers of invitation to prequalification or dossiers of invitation to negotiation, the investors that have submitted prequalification participation dossiers or dossiers for participation in negotiation may modify, replace or withdraw their submitted dossiers.

3. For prequalification or open bidding without prequalification or competitive negotiation specified in Clause 2 or 3, Article 38 of the PPP Law, in case fewer than 3 investors submit prequalification participation dossiers or negotiation participation dossiers or bid dossiers, the bid solicitor shall report such to a competent agency for consideration and handling by either of the following methods:

a/ Permitting the immediate opening of bids for evaluation; or,

b/ Permitting extension of the time of bid closing and, at the same time, reviewing and modifying dossiers of invitation to prequalification or dossiers of invitation to negotiation or bidding dossiers (if necessary). In case of modification of dossiers of invitation to prequalification or dossiers of invitation to negotiation or bidding dossiers, the investors that have submitted prequalification participation dossiers or dossiers for participation in negotiation or bid dossiers may modify, replace or withdraw their submitted dossiers.

4. For open bidding for which prequalification has been organized or competitive negotiation, if, by the time of bid closing, the number of investors having submitted bid dossiers is smaller than that of investors approved in the shortlist, the bid solicitor shall report such to a competent agency for consideration and handling by either of the following methods:

a/ Permitting the immediate opening of bids for evaluation; or,

b/ Permitting extension of the time of bid closing and, at the same time, reviewing and modifying dossiers of invitation to prequalification or bidding dossiers (if necessary). In case of modification of dossiers, the investors that have submitted bid dossiers may modify, replace or withdraw their submitted dossiers.

5. An investor that wishes to change its/his/her status and name for participation in bidding as compared with the status and name in the shortlist shall send a notice thereof to the bid solicitor at least 7 working days before the date of bid closing. The bid solicitor shall report such to a competent agency for considering and deciding on such change, specifically as follows:

a/ Permitting addition of the investor outside the shortlist to the joint-name members;

b/ Permitting withdrawal of a joint-name member, ensuring that the remaining members or replacement partners (if any) meet capacity and experience requirements;

c/ Permitting change of the equity holding ratio in the joint-name entity. In this case, the bid solicitor shall evaluate and update information on capacity of the investor, ensuring that it/he/she fully meets capacity conditions and the condition on minimum equity holding ratio of each member as stated in the dossier of invitation to prequalification or dossier of invitation to negotiation.

6. In case investors named in the shortlist request establishment of a joint-name entity to participate in bidding, a competent agency shall consider and approve such request on the basis of assurance of competition, transparency and efficiency.

7. In case all investors that satisfy technical requirements and are ranked propose prices and charges of products and public services and state capital used as support for the construction of infrastructure facilities and systems higher than those stated in the approved feasibility study report (or the prefeasibility study report for projects applying high technologies or new technologies), the bid solicitor shall report such to a competent agency for consideration and handling by either of the following methods:

a/ Permitting these investors to make financial-commercial proposals again; or,

b/ Permitting these investors to make financial-commercial proposals again and, at the same time, reconsidering prices and charges of products and public services and state capital used as support for the construction of infrastructure facilities and systems stated in the approved feasibility study report (or the prefeasibility study report for projects applying high technologies or new technologies), if deeming it necessary.

8. After dossiers of financial-commercial proposals are evaluated, if investors are all ranked equal, the investor with the highest technical score shall be ranked first.

9. If detecting that contents of a bidding dossier are incompliant with the PPP law or relevant laws, leading to unclear or different understandings in the course of evaluation of bid dossiers, or causing falsification of investor selection results, the bid solicitor shall report such to a competent agency for consideration and handling according to the following steps:

a/ Modifying the bidding dossier to make its contents compliant with the investment policy decision, project approval decision, the PPP Law and relevant laws;

b/ Notifying all investors that have submitted bid dossiers of the modification of the bidding dossier and requesting them to additionally submit their bid dossiers with respect to modified contents or other contents of the bid dossiers if such contents are impacted by the modified contents of the bidding dossier (if necessary);

c/ Organizing reevaluation of bid dossiers.

10. At the time of contract signing, if the bid-winning investor fails to satisfy conditions on technical and financial capacity, the bid solicitor shall invite the investor ranked next to contract negotiation and finalization. The invited investor shall restore validity of the bid dossier and bid security in case the bid dossier has become invalid and the bid security has been refunded or released.

11. In case a joint-name investor wins the bidding but has not signed a project contract or a project contract has been signed but is not effective yet, when there is a change in equity holding ratio in the joint-name entity, the bid solicitor shall evaluate and update information on capacity of the investor under Clause 1, Article 49 of the PPP Law, ensuring the investor fully meets capacity conditions and the condition on minimum equity holding rate of each member specified at Point a, Clause 2, Article 41 of the PPP Law. After updating information on capacity of the investor, the bid solicitor shall report it to a competent agency for consideration and decision to proceed with the next procedures under regulations.

12. In addition to the above cases, a competent agency shall consider and decide on any circumstances arising in the investor selection process in adherence to the investor selection’s objectives of competition, fairness, transparency and economic efficiency.

Article 84. Responsibilities for handling of circumstances

1. Competent agencies shall decide on handling of circumstances specified in Clauses 1 thru 7, and 9, 11 and 12, Article 83 of this Decree.

2. Bid solicitors shall decide on handling of the circumstances specified in Clauses 8 and 10, Article 83 of this Decree.

Section 2

HANDLING OF VIOLATIONS

Article 85. Cancellation or suspension of bidding, refusal to recognize investor selection results or declaration of invalidation of decisions of competent agencies, contract-signing agencies and bid solicitors

1. Cancellation of bidding shall be applied as a measure to handle violations of the PPP law and other relevant laws which are committed by organizations and individuals participating in investor selection activities. Competent agencies shall decide on cancellation of bidding in the cases specified in Article 34 of the PPP Law.

2. Suspension of bidding is a measure to temporarily stop the bidding and shall be applied before approval of investor selection results when there are signs showing that organizations or individuals participating in investor selection commit violations of the PPP law or other relevant laws, thus rendering investor selection objectives unachievable.

3. Refusal to recognize investor selection results is a measure to cancel investor selection results and shall be applied from the date of approval of investor selection results to the date before the date of contract signing when there is an evidence to believe that organizations or individuals participating in investor selection commit violations of the PPP law or other relevant laws, thus falsifying investor selection results.

4. Declaration of invalidation is a measure to annul decisions of competent agencies, contract-signing agencies or bid solicitors that are incompliant with the PPP law and other relevant laws.

Article 86. Ban on participation in PPP investment activities

1. Depending on severity of their violations, organizations or individuals shall be banned from participating in PPP investment activities for:

a/ Between 6 months and 1 year, for one of the violations specified in Clauses 4 and 5, Article 10 of the PPP Law;

b/ Between 1 year and 3 years, for one of the violations specified in Clauses 7 and 8, Article 10 of the PPP Law;

c/ Between 3 years and 5 years, for one of violations specified in Clauses 3, 6, 9, 10, 11 and 12, Article 10 of the PPP Law.

2. Competence to impose ban on participation in PPP investment activities:

a/ Competent agencies shall issue decisions to ban organizations and individuals from participating or being involved in PPP investment activities for projects under management by ministries, sectors or localities; for serious violations, competent agencies shall propose the Minister of Planning and Investment to issue decisions to ban participation in PPP investment activities nationwide;

b/ The Minister of Planning and Investment shall issue decisions to ban participation in PPP investment activities nationwide for the cases proposed by competent agencies under Point a of this Clause.

Chapter VII

INSPECTION OF INVESTOR SELECTION ACTIVITIES IN THE PPP FORM

Article 87. Inspection of investor selection activities

1. Inspection of investor selection activities shall be carried out under periodical plans or extraordinarily when a problem arises or when the Prime Minister, the chairperson of a provincial-level People’s Committee or the head of an inspection agency in charge of investor selection activities makes a proposal or request under Clause 2 of this Article. Inspection methods include direct inspection or reporting request.

2. Ministers, heads of central agencies and other agencies specified at Points a and c, Clause 1, Article 5 of the PPP Law, chairpersons of provincial-level People’s Committees, directors of provincial-level Departments of Planning and Investment, and heads of specialized agencies and agencies under provincial-level People’s Committees shall direct inspection of investor selection activities of units under their management and of projects in which investment is decided by them for the purpose of management, administration and rectification of investor selection activities in order to step up and improve efficiency of investor selection and prevent, promptly detect and handle violations of the PPP law.

3. The Ministry of Planning and Investment shall assume the prime responsibility for organizing inspection of investor selection activities nationwide. Ministries, central agencies, other agencies, provincial-level People’s Committees, provincial-level Departments of Planning and Investment, specialized agencies of provincial-level People’s Committees, and district-level People’s Committees shall assume the prime responsibility for organizing inspection of investor selection activities when requested by inspection agencies in charge of investor selection. Provincial-level Departments of Planning and Investment shall assist provincial-level People’s Committees in organizing inspection of investor selection activities in their localities.

Article 88. Contents of inspection of investor selection activities

1. Contents of periodical inspection include:

a/ Inspection of the promulgation of documents guiding and directing investor selection activities and delegation of powers in investor selection;

b/ Inspection of the making and approval of dossiers of invitation to prequalification, dossiers of invitation to negotiation, bidding dossiers, prequalification results and investor selection results;

c/ Inspection of the project implementation process and progress;

d/ Inspection of contents of signed contracts and compliance with legal bases in contract signing and performance;

dd/ Inspection of investor selection reporting;

e/ Inspection of the organization of inspection and supervision of investor selection activities.

2. Contents of extraordinary inspection: Based on extraordinary inspection requirements and inspection decisions, heads of inspection teams shall determine inspection contents as appropriate.

3. After an inspection is completed, inspection reports and conclusions shall be made. The inspection agency shall monitor the remediation of problems (if any) stated in inspection conclusions. If detecting a violation, the inspection agency shall propose handling measures or transfer the violation to an inspectorate or investigative agency for handling under regulations.

Chapter VIII

IMPLEMENTATION PROVISIONS

Article 89. To amend, supplement or annul a number of articles of the Government’s Decree No. 25/2020/ND-CP of February 28, 2020, detailing a number of articles of the Bidding Law regarding investor selection

1. To amend Point b, Clause 1, Article 2 as follows:

“Making of preliminary requirements on capacity and experience; preparation and appraisal of bidding dossiers; evaluation of bid dossiers; and appraisal of investor selection results.”.

2. To amend Article 4 as follows:

a/ To amend Point c, Clause 1 as follows:

“c/ Provincial-level Departments of Planning and Investment or economic zone management boards (for projects in economic zones) shall post information on and lists of land-using investment projects, information on extension or change (if any) of the duration registered for implementation of land-using investment projects, and results of preliminary evaluation of capacity and experience of investors registering for implementation of land-using investment projects specified at Points i and l, Clause 1, Article 8 of the Bidding Law;”;

b/ To amend Point d, Clause 1 as follows:

“d/ Bid solicitors shall post the information specified at Points a, b, c, d and dd, Clause 1, Article 8 of the Bidding Law and information on change (if any) in the time of bid closing; and information on contracts of land-using investment projects specified at Point l, Clause 1, Article 8 of the Bidding Law.”.

c/ To amend Clause 5 as follows:

“5. In addition to the responsibility to provide information specified at Point d, Clause 1 of this Article, bid solicitors shall post notices of invitation for international bids in both English and Vietnamese on websites (if any) of provincial-level People’s Committees or an English-language newspaper distributed in Vietnam.”.

3. To amend Clause 1, Article 5 as follows:

“1. For the information specified at Points b and c, Clause 1, Article 8 of the Bidding Law, bid solicitors shall concurrently post bidding dossiers and notices of invitation for bids on the Vietnam National E-Procurement System.”.

4. To amend Article 6 as follows:

a/ To amend Clause 3 as follows:

“3. A bidding dossier and a notice of invitation for bids shall be concurrently posted in the Vietnam National E-Procurement System. A dossier of requirements shall be distributed within the time limit stated in the letter of invitation for bids sent to the appointed investor;”.

 b/ To amend Clause 7 as follows:

“7. Documents modifying bidding dossiers shall be sent to investors that have received such dossiers at least 15 days, for national bidding, or 25 days, for international bidding, before the date of bid closing; for modification of dossiers of requirements, this time limit is at least 10 days before the date of bid closing. In case the time limit for sending documents modifying dossiers fails to satisfy the requirement specified in this Clause, the bid solicitor shall extend the time of bid closing so as to ensure compliance with regulations on the time limit for sending documents modifying dossiers of bidding dossiers or dossiers of requirements.”.

5. To amend Article 7 as follows:

a/ To amend Clause 1 as follows:

“1. For national bidding, the selling price (tax-inclusive) of a set of bidding dossier or dossier of requirements must not exceed VND 20,000,000 (twenty million). For international bidding, the selling price (tax-inclusive) of a set of bidding dossier or dossier of requirements must not exceed VND 30,000,000 (thirty million).”.

b/ To amend Clause 4 as follows:

“4. For projects with similar contents the implementation of which is organized by the same competent state agency and the same bid solicitor, or projects for which investor selection is required to be organized again, expenses for preparation and appraisal of bidding dossiers or dossiers of requirements must not exceed 50% of paid expenses specified in Clauses 2 and 3 of this Article. If investor selection is organized again, the expense therefor shall be included in investment preparation cost estimates.”.

6. To amend the title of Chapter II into “Investor selection plans”

7. To amend Point b, Clause 1, Article 24 as follows:

“b/ For a land-using investment project:

- A decision approving investment policy (for projects subject to approval of investment policy in accordance with the law on investment) or a decision approving the list of land-using investment projects (for projects not subject to approval of investment policy in accordance with the law on investment);

- A decision approving the application of open bidding;

- Relevant documents (if any).”.

8. To amend Article 25 as follows:

a/ To amend Clause 2 as follows:

“2. Preliminary total expenses for project implementation, and estimated expenses for compensation, support and resettlement, land use levy and land rental, for land-using investment projects.”.

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

“a/ Clearly determining a form of investor selection under Articles 20, 22 and 26 of the Bidding Law and Article 10 of this Decree;”.

9. To amend Point a, Clause 1, Article 47 as follows:

“a/ A decision approving investment policy (for projects subject to approval of investment policy in accordance with the law on investment) or a decision approving the list of land-using investment projects (for projects not subject to approval of investment policy in accordance with the law on investment);”.

10. To amend Article 49 as follows:

“Article 49. Appraisal and approval of bidding dossiers

1. Bidding dossiers shall be appraised under Clause 2, Article 75 of this Decree before being approved.

2. Approval of bidding dossiers shall be recorded in writing based on requests for approval and reports on appraisal of bidding dossiers.”

11. To amend Article 51 and add Articles 51a, 51b, 51c and 51d below Article 51 as follows:

“Article 51. Invitation for bids, distribution, modification and clarification of bidding dossiers; extension of the deadline for submitting bid dossiers

1. Notices of invitation for bids shall be posted under Point d, Clause 1, Article 4, and Clause 1, Article 5, of this Decree.

2. Bidding dossiers shall be distributed to investors participating in bidding. Bid solicitors shall post free of charge the whole files of bidding dossiers on the Vietnam National E-Procurement System.

3. In case of modification of a bidding dossier after distribution, the bid solicitor shall post a decision on modification of the biding dossier enclosed with modified contents on the Vietnam National E-Procurement System.

4. If wishing to have a bidding dossier clarified, an investor shall send a written request to the bid solicitor at least 7 working days (for national bidding) or 15 days (for international bidding) before the date of bid closing for consideration and settlement. The bid solicitor shall clarify the bidding dossier in either or both of the following methods:

a/ Posting dossier-clarifying documents on the Vietnam National E-Procurement System;

b/ When necessary, holding a pre-bid conference to discuss contents of the bidding dossier that remain unclear for the investor. Discussions shall be recorded in writing by the bid solicitor and used to make a document clarifying the bidding dossier, which shall be posted on the Vietnam National E-Procurement System.

Contents clarifying a bidding dossier must not contravene contents of the approved bidding dossier. If the clarification leads to modification of the bidding dossier, such modification must comply with Clause 3 of this Article.

5. A decision on modification of a bidding dossier or a document clarifying a biding dossier constitutes an integral part of such dossier.

6. Extension of the deadline for submitting bid dossiers 

a/ Bid solicitors shall post notices of extension and decisions on approval of extension on the Vietnam National E-Procurement System;

b/ A notice of extension must state reasons for extension and the new time of bid closing.

Article 51a. Preparation, submission, receipt, management, modification, replacement and withdrawal of bid dossiers

1. Investors shall prepare and submit bid dossiers as required in bidding dossiers.

2. The bid solicitor shall receive bid dossiers of all investors that are submitted before the time of bid closing and manage such dossiers under regulations on management of confidential files until investor selection results are publicized. In no circumstance may information in the bid dossier of an investor be revealed to any other investor, except information eligible for disclosing upon bid opening.

3. An investor that wishes to modify, replace or withdraw its/his/her submitted bid dossier shall send a written request to the bid solicitor. The bid solicitor shall only approve such modification, replacement or withdrawal if receiving the request before the time of bid closing.

4. Bid dossiers or documents sent by investors to the bid solicitor after the time of bid closing may not be opened and shall be considered invalid and disqualified, except documents clarifying bid dossiers upon request of the bid solicitor or clarifying or supplementing documents proving eligibility, capacity and experience of investors.

Article 51b. Opening of dossiers of technical proposals

1. A dossier of technical proposals shall be publicly opened within 1 hour after the time of bid closing. A bid opening record shall be sent to the investors participating in bidding.

 2. A representative of the bid solicitor shall sign the original bidding participation application; power of attorney of the at-law representative of the investor (if any); joint-name agreement (if any); bid security; and important contents of each dossier of technical proposals.

3. Dossiers of financial-commercial proposals of all investors shall be sealed by the bid solicitor in separate bags and such seals shall be signed by representatives of the bid solicitor and investors who attend the dossier-opening ceremony.

Article 51c. Principles of evaluation of bid dossiers

1. Evaluation of bid dossiers shall be carried out based on criteria for evaluation of bid dossiers and other requirements stated in the bidding dossier, submitted bid dossiers, and documents explaining or clarifying bid dossiers of investors so as to select investors that are capable and experienced and have feasible technical and financial-commercial plans to implement projects.

2. The evaluation of bid dossiers shall be carried out based on copies. Investors shall take responsibility for consistency between originals and copies. In case there exist minor disparities between originals and copies which, however, do not change the concerned investor’s ranking, the originals shall be used for evaluation. In case there exist large disparities between originals and copies, leading to the situation whereby results of evaluation based on originals differ from those based on copies and consequently changing the concerned investor’s ranking, the bid dossier of such investor shall be disqualified.

3. When evaluating a bid dossier, the bid solicitor shall check its technical and financial-commercial contents to ensure that such bid dossier does not contain disparities, impositions of conditions or omissions of basic contents, of which:

a/ Disparities are differences from requirements stated in the bidding dossier;

b/ Imposition of conditions means the investor’s imposition of conditions that restrict or show its/his/her refusal to entirely accept requirements stated in the bidding dossier;

c/ Omission of contents means the investor’s failure to provide part or the whole of information or documents as required in the bidding dossier.

4. Given that the bid dossier meets basic requirements stated in the bidding dossier, the bid solicitor may tolerate errors other than disparities, imposed conditions or omitted basic contents in the bid dossier, which, if accepted or allowed to be modified or replaced by the investor, will:

a/ Cause considerable impacts on scope of and requirements on technical and technological aspects and quality of infrastructure facilities and systems;

b/ Cause considerable restrictions on and inconsistencies with the bidding dossier regarding powers of the bid solicitor, project contract-signing agency or competent agency or the investor’s obligations specified in the contract;

c/ Cause unequal impacts on competitive position of other investors whose bid dossiers meet basic requirements stated in the bidding dossier.

5. Bid dossiers that do not meet basic requirements stated in the bidding dossier shall be disqualified. It is not allowed to modify disparities, impositions of conditions or omissions of basic contents in bid dossiers for the purpose of making such dossiers meet these basic requirements.

Article 51d. Principles of clarification of bid dossiers

1. After the bid opening, investors shall clarify their bid dossiers upon request of the bid solicitor.

2. After the bid closing, if an investor finds that its/his/her bid dossier lacks information and documents proving its/his/her eligibility, capacity and experience, the bid solicitor shall receive clarifying or supplementing documents proving the investor’s eligibility, capacity and experience. Such documents shall be regarded as an integral part of the bid dossier.

3. Clarification of contents on eligibility, capacity and experience must adhere to the principle of making no change in eligibility, capacity and experience of investors participating in bidding. The clarification of contents of technical or financial-commercial proposals in bid dossiers of investors must adhere to the principle of making no change in basic contents of submitted bid dossiers.

4. The clarification of a bid dossier shall only be carried out between the bid solicitor and the investor whose bid dossier needs clarifying. Contents clarifying a bid dossier shall be recorded in writing and preserved by the bid solicitor as an integral part of the bid dossier.”.

12. To amend Article 52 as follows:

“Article 52. Evaluation of dossiers of technical proposals

1. Examining the validity of a dossier of technical proposals, including:

a/ Examining the number of originals and copies included in the dossier;

b/ Examining papers included in the dossier, including application for participation in bidding for technical proposals, joint-name agreement (if any), letter of authorization to sign the application for participation in bidding (if any); bid security; document proving eligibility of the person undersigning the application for participation in bidding (if any); document proving eligibility, capacity and experience of the investor; technical proposals; and other papers included in the dossier;

c/ Examining the consistency between originals and copies to serve the detailed evaluation of the dossier.

2. Evaluation of validity of a dossier of technical proposals:

A dossier of technical proposals of an investor shall be evaluated as valid when the following conditions are fully satisfied:

a/ The original dossier of technical proposals is available;

b/ The dossier includes a valid application for participation in bidding for technical proposals;

c/ The dossier’s  validity complies with the requirements set in the bidding dossier;

d/ The investor obtains a valid bid security;

dd/ The investor is not listed in two or more dossiers of technical proposals in the capacity as independent investor or joint-name member;

e/ The dossier includes a valid joint-name agreement, in case of a joint-name entity;

g/ The investor is not being banned from participating in bidding in accordance with the bidding law;

h/ The investor is eligible as specified in Article 5 of the Bidding Law.

3. Evaluation of capacity and experience

The evaluation of capacity and experience shall be carried out according to the methods and criteria for capacity and experience evaluation stated in the bidding dossier.

4. Investors that have valid dossiers of technical proposals and meet capacity and experience requirements shall be considered for detailed technical evaluation.

5. Detailed evaluation of dossiers of technical proposals:

The detailed evaluation of dossiers of technical proposals shall be carried out according to the methods and criteria for technical evaluation stated in the bidding dossier.”.

13. To amend Article 53 as follows:

“Article 53. Appraisal and approval of a list of investors meeting technical requirements

1. The list of investors meeting technical requirements shall be approved in writing based on the request for approval and the report on appraisal of such list.

2. For projects applying the method of contractor appointment, the list of investors meeting technical requirements shall not be appraised and approved.

3. The bid solicitor shall notify the list of investors meeting technical requirements to all investors participating in bidding and invite them to attend the ceremony to open dossiers of financial-commercial proposals, clearly stating the time and venue of the ceremony.”.

14. To amend Article 54 as follows:

“Article 54. Opening of dossiers of financial-commercial proposals

1. Dossiers of financial-commercial proposals of investors on the list of investors meeting technical requirements shall be opened publicly at the time and venue stated in the notice of the list of investors meeting technical requirements. The bid opening record shall be sent to investors participating in bidding.

2. The representative of the bid solicitor shall sign the original application for participation in bidding, letter of authorization of the at-law representative of the investor (if any); joint-name agreement (if any); bid security; and important contents of each dossier of financial-commercial proposals.”.

15. To amend Article 55 as follows:

“Article 55. Evaluation of dossiers of financial-commercial proposals

1. Examination of the validity of a dossier of financial-commercial proposals, including:

a/ Examining the number of originals and copies included in the dossier;

b/ Examining papers included in the dossier, including the application for participation in bidding for financial-commercial proposals and other papers included in the dossier;

c/ Examining the consistency between originals and copies to serve detailed evaluation of the dossier.

2. Evaluation of the validity of a dossier of financial-commercial proposals:

An dossier of financial-commercial proposals of an investor shall be evaluated as valid when the following conditions are fully met:

a/ The original dossier of financial-commercial proposals is available;

b/ The bidding participation application is valid;

c/ Values proposed by the investor in the bidding participation application are precise and fixed values, inscribed in figures and words and are suitable and logical. The investor may not propose different values for a single item or impose conditions that create disadvantages to competent state agencies and the bid solicitor (such items include total expense for project implementation proposed by the investor (M₁); expense for compensation, support and resettlement proposed by the investor (M₂); proposed cash amount to be remitted to the state budget, apart from obligations of investors toward the state budget in accordance with current laws (M₃); proposed increase in cash amount to be remitted into the state budget apart from obligations of investors toward the state budget in accordance with current laws, if any);

d/ The validity of the dossier of financial-commercial proposals complies with the  requirements stated in the bidding dossier.

3. Investors whose dossiers of financial-commercial proposals are valid shall be eligible for detailed financial-commercial evaluation. Detailed evaluation of dossiers of financial-commercial proposals and ranking of investors shall be carried out according to the evaluation methods and criteria specified in the bidding dossier.

4. After evaluating bid dossiers, the experts’ team shall make a report and send it to the bid solicitor for consideration. Such report must clearly state:

- A ranking list of investors;

- A list of investors that do not meet requirements and are disqualified and reasons for disqualification;      

- Remarks on competitiveness, fairness, transparency and economic efficiency in the process of investor selection. In case of failure to ensure competitiveness, fairness, transparency and economic efficiency, the report must state the reasons and recommend solutions;

5. When necessary, the bid solicitor shall propose a competent person to permit the invitation of the investor ranked first to preliminary contract negotiation in order to facilitate contract negotiation and finalization after investor selection results are obtained.”.

16. To amend Clause 1, Article 57 as follows:

“1. The submission, appraisal and approval of investor selection results are as follows:

a/ Based on the report on bid dossier evaluation results, the bid solicitor shall submit investor selection results, clearly stating its opinions on evaluation results of the experts’ team;

b/ Investor selection results shall be appraised according to Clause 4, Article 76 of this Decree before being approved;

c/ Investor selection results shall be approved in writing based on the request for approval and report on appraisal of investor selection results.”.

17. To amend Clause 5, Article 58 as follows:

“5. In the course of contract negotiation and finalization, the parties shall complete the draft contract. Investors may not change, withdraw or refuse to implement basic contents proposed in their bid dossiers that have been evaluated by the bid solicitor as meeting requirements of the bidding dossier, unless changes proposed by investors bring higher efficiency to the project”.

18. To amend Article 67 as follows:

a/ To amend Point a, Clause 1 as follows:

“a/ Grounds for making a dossier of requirements:

- The approved list of projects requiring land recovery under the land law that belong to land areas currently managed and used by the State and shall be allocated or leased to investors by provincial-level People’s Committees or management boards of economic zones;

- Housing development programs and plans in accordance with the law on housing; urban development program (if any) in accordance with the law on urban development;

- Socio-economic development plans, sectoral development plans, construction  master plans of 1:2,000 or 1:500 scale (if any) or urban zoning master plans of 1:2,000 or 1:5,000 scale in accordance with law;

- The approved investor selection plan;

- Current regulations on land, housing, real estate business, investment, and construction, and other relevant regulations.

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

“c/ In case of applying the method of contractor appointment as specified at Point b, Clause 4, Article 22 of the Bidding Law and Clause 3, Article 10 of this Decree, an investor shall be identified as being entitled to receive the dossier of requirements when it/he/she has eligibility as specified at Points a, b, c, d and e, Clause 1, Article 5 of the Bidding Law and has sufficient capacity and experience to implement the project;”.

19. To amend Point b, Clause 1, Article 74 as follows:

“b/ Distinct characteristics of the project that make it impossible to apply the methods of investor selection specified in Articles 20 and 22 of the Bidding Law and Article 10 of this Decree;”.

20. To amend Article 75 as follows:

a/ To change the title of the Article to “Appraisal of bidding dossiers and dossiers of requirements”.

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

“a/ A dossier to be submitted for appraisal or approval must comprise:

- The bid solicitor’s request for approval of the bidding dossier or dossier of requirements;

- The draft bidding dossier or dossier of requirements;

- A copy of the decision approving the investor selection plan;

- Other relevant documents.”.

21. To amend Article 76 as follows:

a/ To change the title of the Article to “Appraisal of lists of investors meeting technical requirements and investor selection results”.

b/ To amend Point a, Clause 1 as follows:

“a/ Lists of investors meeting technical requirements and investor selection results shall be appraised before being approved;”.

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

“b/ Appraisal contents include:

- Examination of the conformity and compliance of the bidding dossier or dossier of requirements with regulations; compliance with the bidding law and other relevant laws;

- Examination of the compliance with regulations on time limits in the process of investor selection;

- Examination of the compliance with regulations on submission of the investor selection result.”.

22. To amend Article 77 as follows:

“Article 77. Responsibilities of chairpersons of provincial-level People’s Committees

1. To approve lists of projects.

2. To approve investor selection plans and investor selection results.

3. To approve bidding dossiers, dossiers of requirements, lists of investors meeting technical requirements, and investor ranking lists, or authorize heads of specialized agencies under provincial-level People’s Committees or agencies attached to provincial-level People’s Committees, or chairpersons of district-level People’s Committees to do so.

4. To perform other tasks of competent persons as specified in Article 73 of the Bidding Law.”.

23. To amend Article 78 as follows:

“Article 78. Responsibilities of heads of specialized agencies under provincial-level People’s Committees or agencies attached to provincial-level People’s Committees, or chairpersons of district-level People’s Committees 

1. To perform the tasks of bid solicitors as specified in Article 75 of the Bidding Law.

2. To perform other tasks related to investor selection as authorized by their superiors.”.

24. To amend Article 79 as follows:

a/ To amend Point b, Clause 3 as follows:

“b/ Bidding dossiers, dossiers of requirements, and lists of investors meeting technical requirements, in case these dossiers and lists are to be approved by chairpersons of provincial-level People’s Committees.”.

b/ To amend Clause 4 as follows:

4. In case of authorization under Clause 3, Article 77 of this Decree, planning and finance sections under specialized agencies of provincial-level People’s Committees or agencies attached to provincial-level People’s Committees, or district-level People’s Committees shall appraise bidding dossiers, dossiers of requirements and lists of investors meeting technical requirements.”.

25. To amend and supplement Article 80 as follows:

a/ To amend Clause 4 as follows:

“If, by the time of bid closing, there is no bid dossier submitted, the bid solicitor shall report such to a competent person for him/her to consider and handle the case by one of the following ways:

a/ Permitting the extension of the time of bid closing for at most 30 days;

b/ Deciding to cancel the bidding and at the same time requesting the bid solicitor to modify the bidding dossier and reorganize the investor selection.”.

b/ To amend Clause 5 as follows:

“5. Past the time limit for registration for implementation of a land-using investment project, if there is no registration dossier submitted, the concerned provincial-level Department of Planning and Investment shall report such to the chairperson of the provincial-level People’s Committee for him/her to consider and handle the case by one of the following ways:

a/ Permitting the extension of the time limit for registration of implementation of the land-using investment project;

b/ Determining a plan on re-disclosure of the project’s information.

For projects to be implemented in economic zones, heads of management boards of economic zones shall consider and handling the cases by one of the above ways.”.

c/ To add Clause 5a as follows:

In case there is only one investor meeting preliminary requirements on capacity and experience, based on the project implementation progress, investment attraction objectives as well as other specific conditions of the project, the chairperson of the provincial-level People’s Committee or head of the economic zone management board (for investment projects to be implemented in economic zones) shall consider and handle in case in one of the following ways:

a/ Notifying and guiding the investor to submit the dossier of request for approval of investment policy in accordance with the law on investment if publicity, transparency and competitiveness are ensured and the project implementation needs to be speeded up;

b/ Extending the time limit for project implementation registration so that other potential investors have opportunity to access information and submit dossiers of registration for project implementation in order to increase competitiveness. The investor meeting requirements is not required to re-submit the dossier of registration for project implementation.

After the extension, based on results of preliminary evaluation of capacity and experience, subsequent procedures must comply with the corresponding provisions in Clause 3, Article 13 of this Decree.

d/ To amend Clause 13 as follows:

“13. If detecting that contents of the bidding dossier or dossier of requirements are incompliant with the bidding law and relevant laws, leading to unclear or different understandings in the process of evaluation of bid dossiers or dossiers of proposals or falsification of investor selection results, the bid solicitor shall report such to the competent person for handling according to the following steps:

a/ Modifying the bidding dossier or dossier of requirements to ensure that its contents are compliant with the document approving investment policy (if any), the bidding law and other relevant laws;

b/ Notifying the modification to all investors that have submitted bid dossiers or dossiers of proposals and requesting them to additionally submit bid dossiers or dossiers of proposals for modified contents or other contents of bid dossiers and dossier of proposals in case of being impacted by the modification of the bidding dossier or dossier of requirements (if necessary).

dd/ To add Clause 13a as follows:

13a. In case a joint-name investor wins the bid but has not yet signed the project contract or the project contract has been signed but not yet become effective, when there is a change in the equity contribution ratio in the joint-name entity, the bid solicitor shall evaluate and update information on the investor’s capacity according to Clause 2, Article 70 of the Bidding Law so as to ensure that the investor is fully capable and the minimum equity ratio of each joint-name member complies with Clause 3, Article 52 of this Decree. After updating information on the investor’s capacity, the bid solicitor shall report the case to the competent person for the latter to consider and decide on the performance of subsequent procedures under regulations.”.

26. To amend Article 82 as follows:

“Article 82. Consultancy councils      

1. Chairpersons of consultancy councils:

The chairperson of a consultancy council is the director of the provincial-level Department of Planning and Investment. Consultancy councils shall provide consultancy on the settlement of petitions.

2. Members of consultancy councils:

a/ Members of a consultancy council include individuals from the provincial-level Department of Planning and Investment and representatives of competent state agencies and related trade associations;

b/ Depending on characteristics of each project and when necessary, the chairperson of a consultancy council may invite other persons to join the council;

c/ Members of consultancy councils must not be relatives (natural parents, parents-in-law, spouses, offspring, adopted children, children-in-law or siblings) of persons undersigning petitions and persons directly evaluating bid dossiers or dossiers of proposals, of the persons directly appraising the lists of investors meeting technical requirements and investor selection results, or of the persons approving investor selection results.

3. Operation of consultancy councils:

a/ The chairperson of a consultancy council shall issue a decision to establish the council within 5 working days after receiving a petition filed by an investor. The consultancy council shall operate on an ad hoc basis;

b/ The consultancy council shall work on a collegial basis, vote by majority, and send work performance reports to a competent person for consideration and decision; members of the council may reserve their opinions and take responsibility before law for such opinions.

4. Permanent standing bodies of consultancy councils:

a/ The permanent standing body of a consultancy council is the provincial-level Department of Planning and Investment’s unit assigned to manage bidding activities.
A permanent assisting body may not be composed of persons directly appraising investor selection results of a project;

b/ The permanent assisting body shall perform administrative tasks prescribed by the chairperson of the consultancy council; and receive and manage payments made by appealing investors under Clause 6, Article 7 of this Decree.”.

27. To amend Article 88 as follows:

a/ To amend Clause 2 as follows:

“2. Ministers; heads of ministerial-level agencies and government-attached agencies; chairpersons of provincial-level People’s Committees; directors of provincial-level Departments of Planning and Investment, and heads of specialized agencies of provincial-level People’s Committees and agencies attached to provincial-level People’s Committees; and chairpersons of district-level People’s Committees shall direct the inspection of bidding activities of units under their management and of projects for which they approve investment policy for the purpose of management, administration and rectification of bidding activities in order to obtain the objective of speeding up and increasing the efficiency of bidding activities and promptly detect, prevent and handle violations of the bidding law.”.

b/ To amend Clause 3 as follows:

“3. The Ministry of Planning and Investment shall assume the prime responsibility for inspecting bidding activities nationwide. Ministries, ministerial-level agencies and government-attached agencies; provincial-level People’s Committees; provincial-level Departments of Planning and Investment, specialized agencies of provincial-level People’s Committees, agencies attached to provincial-level People’s Committees; and district-level People’s Committees shall assume the prime responsibility for inspecting bidding activities when requested by competent persons of bidding inspection agencies. Provincial-level Departments of Planning and Investment shall assist provincial-level People’s Committees in assuming the prime responsibility for inspecting bidding activities in their localities.”.

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

“a/ Contents of periodical inspection include:

- Examining the promulgation of documents guiding and directing the investor selection and delegation of powers for investor selection;

- Examining activities of training on bidding;

- Examining the grant of bidding training certificates;

- Examining the making, approval and announcement of lists of projects (including preliminary requirements on capacity and experience of investors); preliminary evaluation of capacity and experience of investors;

- Examining the formulation and approval of investor selection plans, bidding dossiers, dossiers of requirements, investor selection results;

- Examining contents of to-be-signed contracts and compliance with legal bases in the process of contract signing and performance;

- Examining the implementation of regulations on reporting on bidding activities;

- Examining the organization of inspection and supervision of bidding activities.”.

28. To amend Article 89 as follows:

a/ To amend Clause 1 as follows:

“1. Supervision and monitoring of bidding activities shall be carried out in case ministers or heads of ministerial-level agencies or government-attached agencies authorize heads of organizations of their ministries or agencies; or chairpersons of provincial-level People’s Committees authorize heads of their specialized agencies or attached agencies or chairpersons of district-level People’s Committees to discharge responsibilities of competent persons in selection of investors in order to detect and handle acts and contents violating the bidding law and other relevant laws.”.

b/ To amend Clause 3 as follows:

“3. Bidding activities subject to supervision and monitoring include:

a/ Making, approval, and announcement of lists of projects (including preliminary requirements on capacity and experience of investors); preliminary evaluation of capacity and experience of investors;

b/ Preparation, appraisal and approval of bidding dossiers and dossiers of requirements;

c/ Evaluation of bid dossiers and dossiers of proposals;

d/ Appraisal of investor selection results;

dd/ Contract negotiation, finalization and signing results.”.

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

“a/ The bid solicitor shall make public the name and contact address of the supervising and monitoring person or unit to the investors that have bought bidding dossiers or dossiers of requirements;”.

29. To amend and supplement Article 90 as follows:

a/ To amend Clause 3 as follows:

“3. In case dossiers of invitation to prequalification have been distributed before the effective date of this Decree, investors shall be selected as follows:

a/ In case there are two or more investors passing the prequalification, projects may apply the form of open bidding according to Clause 1 or 2, Article 9 of Decree No. 30/2015/ND-CP. The subsequent procedures for investor selection must comply with Chapters III, IV, and V of Decree No. 30/2015/ND-CP. Bidding dossiers distributed to investors on the shortlist must comply with Clause 1, Article 30, and Articles 49 and 61, of Decree 30/2015/ND-CP.

  b/ In case there is only one investor passing the prequalification, projects may apply the form of contractor appointment according to Point a, Clause 3, Article 9 of Decree No. 30/2015/ND-CP. The subsequent procedures for investor selection must comply with Chapter VI of Decree 30/2015/ND-CP;

c/ Bidding dossiers and dossiers of requirements shall be formulated in conformity with Decree No. 30/2015/ND-CP, guiding Circulars, and relevant regulations which are effective at the time of approval of such dossiers;

d/ Bid-winning investors shall implement the projects in accordance with the contracts, the laws on investment, construction, land, and planning, and other relevant laws.”.

b/ To add the following Clause 5:      

“5. For dossiers of invitation to prequalification, bidding dossiers, and dossiers of requirements distributed before January 1, 2021, bid-winning investors or project enterprises established by bid-winning investors shall issue regulations on selection of contractors to implement bidding packages under their projects for uniform application during project implementation, ensuring fairness, transparency and economic efficiency specified in Clause 2, Article 3 of the Bidding Law.”.

30. To amend Clause 1, Article 91 as follows:

a/ To amend Point a as follows:  

“a/ Assume the prime responsibility for preparing and issuing forms of dossiers for bidding, including bidding dossier and dossier of requirements for selection of investors to implement land-using investment projects; a form of report on the situation of contractor selection; and other forms;”.

b/ To amend Point b as follows:

“b/ Draw up a roadmap for posting of information on selection of investors to implement land-using investment projects on the Vietnam National E-Procurement System.”.

31. To amend the “Notes” section in Appendix I to the Decree as follows:

“Notes:

- Column [1]: Activities in the process of investor selection stated in this column shall be applicable to projects applying open bidding. Provincial-level Departments of Planning and Investment or management units of economic zones (for projects implemented in economic zones) shall make a table for monitoring the progress of activities in the process of preliminary evaluation of capacity and experience of investors specified in this Decree.

- Columns [2] and [3]: Bid solicitors shall identify the specific time for carrying out activities in the process of investor selection for submission to competent persons for approval together with investor selection plans to serve as a ground for implementation.

- Columns [4], [5], [6], and [7]:  Bid solicitors shall update the actual implementation time and note the discrepancies with the expected time when submitting contents of bidding activities to competent persons for approval to serve the  monitoring of the progress of bidding activities.”

32. To annul Point a, Clause 1 of Article 1; Article 3; Point b, Clause 1 of Article 4; Clauses 4 and 9 of Article 6; Clause 2 of Article 7; Articles 8 and 9; Section 1 of Chapter II; Point a, Clause 1 of Article 24; Clause 3 and Point a, Clause 6 of Article 25; Chapter III; Section 1 of Chapter V; Clause 1 of Article 75; Clause 2 of Article 76; Clause 2 of Article 79; Clauses 2, 3, 9, 10, 11 of Article 80; and Clause 1 of Article 90, of Decree No. 25/2020/ND-CP, and Appendix II to Decree No. 25/2020/ND-CP.

Article 90. To amend, supplement or annul a number of articles of the Government’s Decree No. 69/2019/ND-CP of August 15, 2019, providing the use of public assets to make payment to investors implementing work construction investment projects in the form of build-transfer (BT) contracts

1. To amend Clause 2, Article 5 as follows:

“2. Land areas given to investors as payment are land areas for which ground clearance has not yet been carried out, has not yet been completed, or has been completed by the State. The determination of land areas to be given to investors as payment must comply with the following provisions:

a/ The land areas are included in land use master plans or plans approved by competent state agencies;

b/ The recovery of land areas to be given to investors as payment for BT projects must comply with the land law;

c/ In case of using cleared land areas to make payment to investors implementing BT projects, provincial-level People’s Committees shall report such to the Prime Minister for consideration and decision before deciding on investment policy for such projects.”.

2. To amend Point b, Clause 1, Article 8 as follows:

“b/ The investor shall make advance payment of funds for compensation and ground clearance under the compensation and ground clearance plan already approved by a competent state agency. Such amount shall be deducted in the value of the land areas given by the State to investors as payment for BT projects in accordance with law; the interest expense on loans borrowed for compensation and ground clearance work shall not be included.”.

3. To amend and supplement Article 17 as follows:

“1. For BT contracts under which payment to investors is made in land areas or working offices and which were signed before January 1, 2018, in accordance with legal provisions effective at the time of signing, if the payment has not yet been completed, it shall be further made under the signed BT contracts.

In case payment-related terms and clauses of BT contracts do not specify the location and use purpose of the land areas expected to be given to investors as payment for BT projects, the 2013 Land Law, the 2014 Investment Law, the 2014 Construction Law, the 2015 Law on the State Budget, the 2017 Law on Management and Use of Public Property, and relevant laws shall apply, in which:

a/ The determination of the value of BT projects must comply with the investment law, construction law and relevant laws;

b/ The use of land areas or working offices to make payment to investors implementing BT projects must comply with the land law, specifically as follows:

- Land areas and working offices must comply with land use master plans or plans approved by competent state agencies.

- Cases involving land areas for which ground clearance has been completed by the State or working offices shall be reported to the Prime Minister for consideration and decision;

c/ The value of land areas or working offices given as payment to investors implementing BT projects must adhere to the parity principle whereby the value of the land areas or working offices must be equivalent to the value of the BT projects;

d/ The value of land areas or working offices given as payment to investors implementing BT projects shall be accounted as state budget revenues and expenditures in accordance with the regulations on management of the state budget.

2. For BT contracts signed between January 1, 2018, and before October 1, 2019, in accordance with legal provisions effective at the time of their signing, the use of public assets to make payment to investors implementing BT projects must comply with the 2013 Land Law, the 2014 Investment Law, the 2014 Construction Law, the 2015 Law on the State Budget, the 2017 Law on Management and Use of Public Property, and relevant laws, in which:

a/ The determination of the value of BT projects must comply with the investment law, construction law and relevant laws;

b/ The use of land areas or working offices to make payment to investors implementing BT projects must comply with the land law, specifically as follows:

- Land areas or working offices must comply with land use master plans or plans approved by competent state agencies.

- Cases involving land areas for which ground clearance has been completed by the State or working offices shall be reported to the Prime Minister for consideration and decision;

c/ The value of land areas or working offices given as payment to investors implementing BT projects must adhere to the parity principle whereby the value of the land areas or working offices must be equivalent to the value of the BT projects;

d/ The value of land areas or working offices given as payment to investors implementing BT projects shall be accounted as state budget revenues and expenditures in accordance with the regulations on management of the state budget.”.

4. To annul Clause 3, Article 1 and Clause 2, Article 19.

Article 91. Guidance on transitional provisions of the PPP Law

1. For PPP projects for which competent authorities have approved investment policy (in a separate document or decision approving a master plan or plan) or project proposals or the use of the State’s investment capital according to legal documents effective in the period before the effective date (June 19, 2018) of the Government’s Decree No. 63/2018/ND-CP of May 4, 2018, on investment in the form of public-private partnership, and which are eligible for application of transitional provisions under Article 101 of the PPP Law, if, after January 1, 2021, it is necessary to adjust the projects’ objective, location, size, or contract type, increase the total investment amount by 10% or higher, or increase the value of state capital in the projects in a case specified at Point a, b or c, Clause 1, Article 18 of the PPP Law, such adjustment shall be implemented as follows:

a/ The competent authorities having approved investment policy (in a separate document or decision approving a master plan or plan) or project proposals shall decide on the adjustment. For projects using the State’s investment capital, it is required to obtain opinions of the competent authority having approved the use of the State’s investment capital before deciding on the adjustment;

b/ The order and dossier of request for adjustment must comply with Clauses 3 and 4, Article 18 of the PPP Law, and this Decree. As for projects for which the project proposals have been approved by provincial-level People’s Committees, the order of project proposal adjustment must follow the corresponding steps specified at Points a, b, c, and d, Clause 4, Article 13 of the PPP Law, and this Decree, which shall serve as a basis for the provincial-level People’s Committees to decide on the adjustment.

2. For PPP projects for which competent authorities have decided on investment policy under the Government’s Decree No. 63/2018/ND-CP of May 4, 2018, on investment in the form of public-private partnership, and which are eligible for application of transitional provisions under Article 101 of the PPP Law, if, after January 1, 2021, the projects fall into cases subject to adjustment of investment policy, they must comply with Article 18 of the PPP Law, and this Decree, except the following cases:

a/ For projects for which investment policy has been approved by provincial-level People’s Committees, the adjustment must follow the corresponding steps specified at Points a, b, c and d, Clause 4, Article 13 of the PPP Law, and this Decree, which shall serve as a basis for the provincial-level People’s Committees to decide on the adjustment;

b/ For projects for which adjustment of investment policy has been submitted for  appraisal before January 1, 2021, it is not required to form PPP project appraisal councils in accordance with the PPP Law and this Decree.

3. For projects of which feasibility study reports have been approved by competent authorities and which are eligible for application of transitional provisions under Article 101 of the PPP Law, if, by January 1, 2021, dossiers of invitation to prequalification or bidding dossiers (for projects not applying prequalification) have not yet been distributed, competent authorities shall additionally approve modes and time of investor selection according to Point b, Clause 1, Article 101 of the PPP Law.

4. For projects of which feasibility study reports have been approved by competent authorities and which are eligible for application of transitional provisions under Article 101 of the PPP Law, if, by the effective date of this Decree, dossiers of invitation to prequalification or bidding dossiers (for projects not applying prequalification) have not yet been distributed, survey of the interest of investors and lenders shall be carried out according to this Decree. Based on the survey result, competent authorities shall additionally approve modes and time of investor selection according to Point b, Clause 1, Article 101 of the PPP Law.

5. For PPP projects for which dossiers of invitation to prequalification have been distributed but, by the effective date of this Decree, prequalification results have not been approved, prequalification participation dossiers shall continue to be evaluated based on the dossiers of invitation to prequalification. Based on prequalification results (including cases in which there is only one investor on the shortlist), competent authorities shall additionally approve modes and time of investor selection according to Point b, Clause 1, Article 101 of the PPP Law. The subsequent order and procedures for investor selection must comply with the PPP Law’s and this Decree’s provisions applicable to projects which apply open bidding and for which prequalification has been carried out.

6. For PPP projects of which prequalification results have been approved (including cases in which there is only one investor on the shortlist), if, by the effective date of this Decree, bidding dossiers or dossiers of requirements have not been distributed, bidding dossiers shall be prepared, appraised, approved and distributed according to  the PPP Law’s and this Decree’s provisions applicable to projects which apply open bidding and for which prequalification has been carried out.

 7. For PPP projects for which bids have been opened, if, by January 1, 2021, investor election results have not been approved, bid solicitors shall submit, appraise, and approve investor selection results based on bid dossiers, dossiers of proposals, bidding dossiers, and dossiers of requirements; the negotiation, finalization and signing of project contracts must comply with the order specified in the PPP Law and this Decree, which, however, must not lead to any adjustment of approved investment policy and feasibility study reports.

8. For PPP projects for which investor selection results have been approved or investors have been identified by competent authorities in accordance with legal provisions effective at that time, if, by January 1, 2021, procedures for signing PPP project contracts have not been completed, the negotiation, finalization and signing of project contracts must comply with the PPP Law and this Decree, which, however, must not lead to any adjustment of approved investment policy and feasibility study reports. The negotiation, finalization, and signing of project contracts shall be carried out based on:

a/ Bid dossiers, dossiers of proposals, bidding dossiers, and dossiers of requirements, for PPP projects for which investor selection has been carried out in accordance with the bidding law;

b/ The written commitment or approval of the Government, Prime Minister, or ministries, sectors or provincial-level People’s Committees on investment incentives and guarantees and other contents related to project implementation in accordance with legal provisions effective at the time of issuance of such commitment or approval;

c/ The project contracts initialed or investment agreements signed in accordance with legal provisions effective at the time such contracts or agreements are initialed or signed. In this case, it is not required to re-negotiate on the contents stated in the initialed project contracts or signed investment agreements.

9. Projects which have been granted investment registration certificates may be further implemented according to their certificates. When necessary to adjust the projects, involved parties shall adjust project contracts in accordance with this Decree and relevant regulations without having to carry out procedures for adjustment of investment registration certificates. In case the project contracts, after being adjusted, become inconsistent with the granted investment registration certificates, involved parties shall comply with the adjusted contracts and take responsibility before law for such adjustments.

10. For projects applying high technologies for which investment policy has been approved by competent authorities, if, by January 1, 2021, bidding dossiers and dossiers of requirements have not been distributed, it is required to additionally approve modes and time for organization of competitive negotiation according to Clause 2, Article 38 of the PPP Law; and carry out investor selection according to this Decree.

11. For PPP projects proposed by investors which are subject to suspension from implementation according to Clause 2, or Point a, Clause 5, Article 101 of the PPP Law, the project-proposing investors shall bear all risks and expenses for project preparation; in case there is a written agreement between competent state agencies and investors regarding payment of expenses for project preparation, such agreement shall apply provided that it complies with relevant current regulations.

12. For projects applying BT contracts and eligible for application of transitional provisions under Clause 5, Article 101 of the PPP Law, it is permitted to use public assets to make payment to investors according to Clause 13 or 14 of this Article and the law on management and use of public property (except Point b, Clause 1, Article 3 of the Government’s Decree No. 69/2019/ND-CP of August 15, 2019,  providing the use of public assets to make payment to investors implementing work construction investment projects in the form of build-transfer contracts), of which:

a/ The determination of the value of BT projects must comply with the investment law, construction law and relevant laws;

b/ The use of land areas or working offices to make payment to investors implementing BT projects must comply with the land law, specifically as follows:

- Land areas or working offices must comply with land use master plans and plans approved by competent state agencies.

- Cases involving land areas for which ground clearance has been completed by the State or working offices shall be reported to the Prime Minister for consideration and decision;

c/ The value of land areas or working offices given as payment to investors implementing BT projects must adhere to the parity principle whereby the value of land areas or working offices must be equivalent to the value of BT projects;

d/ The value of land areas and working offices given as payment to investors implementing BT projects shall be accounted as state budget revenues and expenditures in accordance with the regulations on management of the state budget.

13. Projects applying BT contracts for which bidding dossiers and dossiers of requirements have been distributed in accordance with legal provisions effective before the effective date (October 1, 2019) of the Government’s Decree No. 69/2019/ND-CP of August 15, 2019, providing the use of public assets to make payment to investors implementing work construction investment projects in the form of build-transfer contracts, may be further implemented according to bidding dossiers and dossiers of requirements, and legal provisions effective at the time of distribution of bidding dossiers and dossiers of requirements. The use of public assets to make payment to investors must comply with Clause 12 of this Article.

14. For projects applying BT contracts for which investor selection results have been approved or investors have been identified by competent authorities in accordance with legal provisions effective in each period before the effective date (October 1, 2019) of the Government’s Decree No. 69/2019/ND-CP of August 15, 2019, providing the use of public assets to make payment to investors implementing work construction investment projects in the form of build-transfer contracts, if, by January 1, 2021, procedures for signing PPP project contracts  have not been completed, the negotiation, finalization and signing of project contracts must comply with bid dossiers, dossiers of proposals, bidding dossiers, dossiers of requirements, and written commitments or approvals of the Government, Prime Minister, or ministries, sectors, or provincial-level People’s Committees according to the order specified in the Government’s Decree No. 63/2018/ND-CP of May 4, 2018, on investment in the form of public-private partnership. The use of public assets to make payment to investors must comply with Clause 12 of this Article.

15. From the effective date (October 1, 2019) of the  Government’s Decree No. 69/2019/ND-CP of August 15, 2019, providing the use of public assets to make payment to investors implementing work construction investment projects in the form of build-transfer contracts,  the use of public assets to make payment to investors implementing projects under the BT contract according to the law on management and use of public property shall only apply to projects for which investors are selected in the form of open bidding, except the cases specified in Clauses 12 and 13 of this Article.

16. From January 1, 2021, any adjustments to signed contracts of projects applying BT contracts must comply with terms and clauses of such contracts. In case contracts do not contain any terms and clauses on adjustment, legal provisions effective at the time of contract signing shall apply.

For projects which have been granted investment registration certificates, involved parties may adjust the contracts without having to carry out procedures for adjustment of the investment registration certificates. In case the contracts, after being adjusted, become inconsistent with the investment registration certificates granted before the effective date of this Decree, involved parties shall comply with the adjusted contracts and take responsibility before law for such adjustments.

17. For PPP projects implemented between January 1, 2021, and the effective date of this Decree which comply with the PPP Law and relevant laws, it is not required to carry out again the corresponding procedures specified in this Decree.

Article 92. Effect

1. This Decree takes effect on the date of its signing, except Clause 2 of this Article.

2. Article 90 of this Decree takes effect on October 1, 2019.

3. To annul the Government’s Decree No. 63/2018/ND-CP of May 4, 2018, on investment in the form of public-private partnership.

Article 93. Implementation responsibility

1. The Ministry of Planning and Investment shall:

a/ Assume the prime responsibility for preparing and issuing forms of dossiers for investor selection;

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

c/ Guide the implementation of other contents of this Decree to meet requirements for state management of PPP investment activities.

2. The Ministry of Finance shall assume the prime responsibility for guiding the management and use of expenses related to investor selection; and coordinate with ministries and ministerial-level agencies in providing guidance on return on equity (ROE) of investors and model project contracts.

3. Ministries and ministerial-level agencies shall, within the ambit of their management, assume the prime responsibility for guiding in detail contents of PPP investment activities, including:

a/ Agencies in charge of design appraisal in accordance with specialized laws;

b/ Contents of prefeasibility study reports and feasibility study reports, including socio-economic efficiency indicators; return on equity (ROE) of investors; indicators for quality evaluation of infrastructure facilities and systems and public services provided by project enterprises; and duration of depreciation of infrastructure facilities and systems;

c/ Detailed contents on criteria and methods for evaluation of bid dossiers, including criteria and methods for evaluation of investors’ capacity and experience; technical and financial-commercial evaluation; criteria for prioritizing investors that have experience in implementing projects in the countries being members of the Organization for Economic Cooperation and Development (OECD) (if applicable);

d/ Model project contracts suitable to the project implementation of the sectors and fields under their management based on the basic contents of PPP project contracts specified in Article 47 of the PPP Law, and the Guidance on formulation of model PPP project contracts provided in Appendix VI to this Decree;

dd/ Other necessary contents of this Decree, which must not be contrary to the PPP Law and this Decree.

4. Ministries, heads of ministerial-level agencies, heads of government-attached agencies, and chairpersons of provincial-level People’s Committees shall, within the ambit of their functions and powers, guide the implementation of, and implement, this Decree.-

On behalf of the Government
Prime Minister
NGUYEN XUAN PHUC

* The appendices to this Decree are not translated.