Chương I Luật Đầu tư theo phương thức đối tác công tư 2020: Những quy định chung

Chapter I

GENERAL PROVISIONS

Article 1. Scope

This Law provides for public - private partnership investments; state management, rights, obligations and responsibilities of entities, organizations and individuals involved in public - private partnership investments.

Article 2. Subjects of application

This Law provides for public - private partnership (abbreviated to PPP) investments; state management, rights, obligations and responsibilities of entities, organizations and individuals involved in public - private partnership investments.

Article 3. Interpretation

For the purposes of this Law, terms used herein shall be construed as follows:

1. Pre-feasibility study report refers to a written document describing the subject matters of a preliminary study, including necessity, feasibility and effectiveness of a PPP investment project (hereinafter referred to as PPP project), as a basis for competent authorities’ grant of investment policy decisions.

2. Feasibility study report refers to a written document describing subject matters of the study relating to the necessity, feasibility and efficiency of a PPP project as a basis for competent authorities’ approval of that project.

3. Bid guarantee refers to an investor's implementation of one of security forms, such as leaving a deposit, depositing funds into escrow accounts or standing surety by a credit institution, foreign bank branch or insurance enterprise lawfully operating in Vietnam prior to the tender closing time or date in order to ensure the bidder’s participation in a bid.

4. Performance guarantee refers to a PPP project enterprise's implementation of one of the security forms, such as leaving a deposit, depositing funds into escrow accounts or standing surety by a credit institution, foreign bank branch or insurance enterprise lawfully operating in Vietnam in order to ensure execution of contracts by a PPP project investor or enterprise.

5. Lender means an organization or individual that lends funds to a PPP project investor or enterprise to execute a PPP project contract.

6. Bid solicitor refers to a unit with expertise and competence assigned by a competent agency to organize the selection of investors.

7. Shortlist refers to the list of successfully prequalified investors when participating in an open bid subject to prequalification requirements or the list of investors invited to participate in a competitive negotiation.

8. PPP project enterprise refers to an enterprise established by an investor to serve the sole purpose of concluding and executing PPP project contracts.

9. PPP project is a set of proposals related to the investment to provide public products and services through the implementation of one or the following activities:

a) Construction, operation and business of infrastructure works and systems;

b) Renovation, upgradation, expansion, modernization, operation and business of available works and systems;

c) Operation and business of available infrastructure works and systems.

10. Public - private partnership investment refers to a form of investment carried out by the fixed-term cooperation between the state and a private-sector investor through conclusion and execution of a PPP project agreement in order to call for private sector involvement in a PPP project.

11. PPP project preparation unit is the unit assigned by the competent agency to prepare pre-feasibility study reports, feasibility study reports, and perform other related tasks.

12. Prequalification application means all documents prepared by a bidder and submitted to a bid solicitor according to requirements of an invitation for prequalification.

13. Bidding documentation means all documents prepared by a bidder and submitted to a bid solicitor according to requirements of an invitation to bid.

14. Invitation for prequalification means all documents for request for a bidding investor’s competence and experience as a basis for the bid solicitor’s shortlisting.

15. Bidding invitation means all documents used for selecting investors, including requirements for project implementation set forth as a basis for an investor’s preparation of bidding documentation, and a bid solicitor’s evaluation of bidding documents and contract negotiation in order to select investors who meet project execution requirements.

16. PPP project contract means a written agreement between a contracting authority and a PPP project investor or enterprise on the State's concession to that investor or PPP project enterprise to execute a PPP project according to provisions of this Law, including the following types of contracts:

a) Build – Operate – Transfer contract (hereinafter referred to as BOT contract);

b) Build - Transfer - Operate contract (hereinafter referred to as BTO contract);

c) Build - Own - Operate contract (hereinafter referred to as BOO contract);

d) Operate - Manage contract (hereinafter referred to as O&M contract);

dd) Build - Transfer - Lease contract (hereinafter referred to as BTL contract);

e) Build - Lease - Transfer contract (hereinafter referred to as BLT contract);

g) Mixed contract prescribed in Clause 3 of Article 45 of this Law.

17. Investor selection means the process of identifying investors with sufficient competence, experience, and feasible solutions to implement PPP projects on the principle of ensuring competition, fairness, transparency and economic efficiency.

18. PPP investor (hereinafter referred to as investor) is an independent legal entity established under the provisions of law, or established by entering into partnership amongst multiple legal entities involved in PPP investments.

19. State capital comprises state budget capital or capital from lawful revenues retained as investment or regular expenditures belonging to the state budget’s spending tasks.

Article 4. Investment sector, size and classification of PPP projects

1. PPP investment sectors, including:

a) Transportation;

b) Power grids, power plants, except hydropower plants and those subject to the state monopoly requirement as provided in the Law on Electricity;

c) Water resources and irrigation; clean water supply; water drainage and wastewater treatment; waste management and disposal;

d) Healthcare; education – training;

dd) Information technology infrastructure.

2. Minimum investment capital requirement for a PPP project shall be prescribed as follows:

a) The minimum capital requirement of not less than VND 200 billion shall be imposed on projects in the sectors specified in points a, b, c and dd of clause 1 of this Article. In case where projects are executed in areas facing socio-economic difficulties or extreme socio-economic difficulties under the provisions of laws on investment, they must meet the minimum capital requirement of not less than VND 100 billion;

b) The minimum capital requirement of not less than VND 100 billion shall be imposed on the projects in the sectors specified in point d of clause 1 of this Article;

c) Regulations on the minimum capital requirement laid down in point a and b of this clause shall not apply to O&M projects.

3. PPP projects shall be classified by the jurisdiction to issue investment policy decisions, including:

a) PPP projects falling under the National Assembly’s delegated authority to grant investment policy decisions;

b) PPP projects falling under the Prime Minister's delegated authority to issue investment policy decisions;

c) PPP projects falling under the authority to grant investment policy decisions delegated to Ministers, heads of central authorities and other entities specified in clause 1 of Article 5 in this Law;

d) PPP projects falling under the authority to grant investment policy decisions delegated to provincial People’s Councils.

4. The Government shall elaborate on investment sectors prescribed in clause 1 and minimum capital requirements imposed on specific investment sectors as provided in clause 2 of this Article.

Article 5. Competent authorities and authorities signing PPP contracts

1. Competent authorities, including:

a) Ministries, Ministry-level agencies, governmental agencies, central bodies affiliated to political organizations, Supreme People’s Procuracy, Supreme People’s Court, State Audit, Office of the President, Office of the National Assembly, and central bodies of Vietnam Fatherland Front and socio-political organizations (hereinafter referred to as Ministries and/or central authorities);

b) Provincial People’s Committees;

c) Agencies and organizations set up by the Government and the Prime Minister, and assigned make state budget estimates according to the provisions of law on state budget (hereinafter referred to as other authorities).

2. Authorities signing PPP contracts, including:

a) Competent authorities prescribed in clause 1 of this Article;

b) Entities and units authorized by competent authorities to sign contracts as provided in clause 4 of this Article.

3. In cases where projects fall under the management of multiple competent authorities prescribed in Clause 1 of this Article, or in case of change of competent authorities, these authorities shall report to the Prime Minister to seek his decision to designate an authority as the competent authority.

4. Competent agencies may authorize their directly controlled agencies or units to act as authorities signing contracts to execute PPP projects within their competence.

Article 6. PPP Project Assessment Boards

1. PPP Project Assessment Boards, including:

a) State Assessment Board tasked with carrying out an assessment of pre-feasibility study reports and feasibility study reports for PPP projects falling under the National Assembly’s delegated authority to grant investment policy decisions;

b) Interdisciplinary Assessment Board specialized in carrying out an assessment of pre-feasibility study reports and feasibility study reports for PPP projects falling under the Prime Minister’s delegated authority to grant investment policy decisions;

c) State Assessment Board tasked with carrying out an assessment of pre-feasibility study reports and feasibility study reports for PPP projects falling under the authority to grant investment policy decisions delegated to Ministers, Heads of central or other bodies or provincial People’s Councils, except assessment tasks assigned to units directly controlled by competent authorities referred to clause 3 of this Article.

2. The Prime Minister shall decide to set up PPP Project Assessment Boards prescribed at Points a and b of Clause 1 of this Article upon the request of the Minister of Planning and Investment.

3. Based on the size, scale and significance of each project, the Minister, Head of central or other body, President of a provincial People's Committee shall establish grassroots-level Assessment Boards or assign their directly-controlled unit to conduct an assessment of pre-feasibility study reports and feasibility study reports for PPP projects.

4. The PPP Project Assessment Board and its subordinate unit performing the assessment tasks may hire an independent consultant to work for them.

5. The Government shall elaborate on this Article.

Article 7. PPP investment management principles

1. Ensuring relevance to related national socio-economic development strategies, plans and other planning schemes in accordance with law on planning. 

2. Ensuring the effective management and use of State resources invested in PPP projects.

3. Carrying out the inspection, review, state audit and supervision of PPP projects must ensure that these activities do not obstruct normal investment and business activities of PPP investors and/or enterprises.

4. Ensuring open, transparent, fair, sustainable and efficient investments.

5. Ensuring the balancing between interests of the State, investors, users and the community.

Article 8. State management of PPP investments

1. Promulgate, propagate, disseminate and direct the implementation of legislative documents on PPP investments.

2. Review, evaluate and report on the implementation of PPP investments.

3. Examine, inspect and supervise the implementation of legal provisions on PPP investments.

4. Settle complaints, denunciations and sanction violations related to PPP investments; address any petitions or recommendations related to the investor selection process.

5. Organize and carry out investment promotion and international cooperation activities regarding PPP investments.

6. Provide instruction or support related to, and address any issue arising from, administrative procedures for carrying out PPP investment activities at the request of PPP project investors and enterprises.

Article 9. Transparency and disclosure of information about PPP investments

1. Information that must be made available on the Vietnam National E-Procurement System includes:

a) Information about investment policy decisions or decisions on approval of PPP projects;

b) Information about selection of investors, including invitation for prequalification, invitation to bid, shortlist, bidder selection results;

c) Information about selected investors in PPP projects and PPP project enterprises;

d) The main contents of a PPP project contract, including total investment; proportion of funds invested in a project; type of contract; duration of project implementation; prices and costs of each public product and service; fee or cost collection forms and locations (if any) and other necessary information;

dd) The settled amount of public investment capital invested in PPP projects in the case of using public investment capital;

e) Legislative documents regarding PPP investment;

g) Investor database;

h) Information on settlement of complaints, denunciations, petitions and sanctioning of violations of PPP investment law.

2. In addition to being posted on the National E-Procurement System, the information specified in Points a, b, c and d of Clause 1 of this Article must be made publicly available on websites (if any) of competent authorities.

3. All the information specified in Clause 1 of this Article should be published on other mass media.

Article 10. Prohibited acts related to PPP investment

1. Issuing investment policy decisions that are not conformable to public investment strategies, plans and programs; that fail to determine state-owned capital invested in those PPP projects that are subject to the requirement concerning use of state capital; that are made ultra vires or in breach of legally required processes and procedures prescribed in this Law.

2. Approving PPP projects in the absence of investment policies; not conforming to investment policies; ultra vires or in breach of legally required processes and procedures prescribed in this Law.

3. Competent authorities and contracting entities in collusion with consulting organizations and investors issue decisions on PPP investment policies and approval of PPP projects that result in any loss or waste of state capital, assets and national resources, and any harm or infringement on legitimate interests of citizens and the public. 

4. Failing to ensure fairness and transparency during the process of investor selection, including the following acts:

a) Tender as an investor for projects in which the investor is the bid solicitor, the competent authority, the contracting authority or the entity functioning as the bid solicitor, the competent authority or the contracting authority;

b) Get involved in creating and concurrently reviewing documentation for invitation for prequalification, invitation to bid, and assessing bidding documents as well as verifying results of selection of investors bidding for the same project;

c) A person put under the control of a bid solicitor, a competent authority or a contracting authority directly participates in the investor selection process, or joins a team of experts or a team of verification of investor selection results; or is the head of a competent authority, a contracting authority or a bid solicitor, with respect to a project for which his/her natural father, mother, father-in-law, mother-in-law, mother-in-law, spouse, blood or adopted child, daughter-in-law, son-in-law, younger or elder sibling signs the name of the bidder or acts as the legal representative for an investor to bid.

d) Bear the name of the bidder for a project for which a competent authority, a contracting authority or a bid solicitor is the entity or organization where he/she has worked for 12 months before leaving.

5. Disclosing and receiving the following documents and information about the investor selection process:

a) Documents and information related to documentation for invitation for prequalification or invitation to bid before the time of issuance thereof as prescribed, except for cases where projects are subject to the requirement concerning market surveys and prior consultation with investors for preparation of such documentation;

b) Documents and information related to pre-qualification applications, bidding documents, reports of bid solicitors, reports of expert teams, assessment reports, reports of consulting contractors or reports of relevant professional bodies made in the investor selection process, prequalification results or investor selection results before they are disclosed according to regulations;

c) Other documents coming into existence during the investor selection process, if it is established that they contain state secrets prescribed by law.

6. Performing bid rigging acts as follows:

a) Entering into an agreement on bid withdrawal or withdrawal of the bid application already submitted in order for one or more parties to such agreement to win the bid;

b) Make an agreement to one or more parties to prepare bid applications for the bidders so that one or some parties to such agreement win the bid.

7. Transferring shares, contributed capital portions, rights and obligations in breach of the provisions of this Law and PPP contracts.

8. Ceasing the supply of public products and services other than those falling in the cases specified in PPP contracts.

9. Offering, taking and brokering bribes to gain advantage in performing PPP investment activities.

10. Abusing assigned titles and powers to appropriate, make personal gain from and commit acts of corruption while managing and using public investment capital invested in PPP projects; illegally interfering with the PPP project process.

11. Performing PPP investment acts by fraud, including:

a) Counterfeiting and falsifying information, records and documents related to decisions on investment policies and decisions on approval of PPP investment projects, selecting investors and implementing PPP investment projects in order to obtain illegal gain or evade any obligation;

b) Deliberately providing untruthful or biased information that falsifies approved investment policies, PPP projects, investor selection results, review, inspection, supervision or audit results, results of settlement of public investment capital, discharge and termination of PPP contracts;

c) Deliberately providing untruthful and biased information that falsifies data and figures regarding PPP project’s revenues in order to gain illicit profits.

12. Hindering detection and sanctioning of any violation against law on PPP investments.

Article 11. PPP project process

1. Unless otherwise provided in Clause 2 of this Article, the PPP project process shall be prescribed as follows:

a) Making and assessing pre-feasibility study reports, decisions on investment policies and project announcement;

b) Making, evaluating feasibility study reports, and approving projects;

c) Selecting investors;

d) Establishing PPP project enterprises and concluding PPP contracts;

e) Implementing PPP contracts.

2. For PPP projects using high technologies on the list of high technologies prioritized for investment in development thereof under the provisions of the law regarding high technologies and using new technologies according to the provisions of technology transfer law, PPP project process shall be subject to the following regulations:

a) Making and assessing pre-feasibility study reports, decisions on investment policies and project announcement;

b) Selecting investors;

c) Selected investors prepare feasibility study reports;

d) Assessing feasibility study reports, and approving projects;

dd) Implementing steps prescribed at point d and dd of Clause 1 of this Article.

3. In case where a PPP project has a construction work requiring an architectural proposal test, the test may be considered and approved under an investment policy decision prescribed in Clause 1 or Clause 2 of this Article. The architectural proposal test must comply with provisions of law on architecture.

4. Projects under public investment plans which are considered to be converted into PPP projects shall comply with the process specified in Clause 1 or Clause 2 of this Article.

5. The Government shall elaborate on the PPP project process.