Chương II Luật Đầu tư theo phương thức đối tác công tư 2020: Chuẩn bị dự án ppp

Chapter II

PPP PROJECT PREPARATION

Section 1. PPP PROJECTS DEVELOPED BY COMPETENT AUTHORITIES

Article 12. Authority to issue decisions on policies for investment in PPP projects

1. The National Assembly shall be vested with authority to issue decisions on policies for investment in PPP projects that meet one of the following criteria:

a) Using public investment capital worth 10,000 billion dong or more;

b) Having substantial environmental impacts or posing potential risks in making serious environmental impacts, including nuclear power plants; using land subject to the requirement for conversion of uses from land for cultivating specialized forests, upstream protection forests or border protection forests which covers an area of 50 hectares or more; from land for protective forests used as wind or sand screens, wave breakers, or sea reclamation land, which covers at least 500 hectares; from land for production forests which covers a minimum area of 1,000 hectares;    

c) Using land subject to the requirement for conversion of uses from arable land covering an area of 500 hectares or more for growing wet rice during at least two cropping seasons;

d) Resettling at least 20,000 inhabitants in mountainous areas or at least 50,000 inhabitants in other regions;

dd) Requiring special legal frameworks or policies subject to the National Assembly's decisions.

2. Except for the projects specified in Clause 1 of this Article, the Prime Minister shall be accorded authority to grant decisions on investment policies for PPP projects satisfying one of the following criteria:

a) Resettling at least 10,000 inhabitants in mountainous areas or at least 20,000 inhabitants in other regions;

b) Using central budget capital managed by ministries or central agencies with total investment equivalent to that in Group A projects in accordance with the law on public investment, or using ODA loans and preferential loans from foreign sponsors;

c) Investment in new construction: airports and airfields; runways of airports and airfields; passenger terminals of international airports; cargo terminals of airports and airfields with an annual cargo handling performance of 1 million tonnes or more;

d) Investment in new construction: harbors or port areas inside special seaports; wharves and port areas inside grade-I seaports with total investment equivalent to that in Group A projects in accordance with the law on public investment.

3. Ministers, Heads of central authorities and other agencies shall be authorized to grant decisions on investment policies for PPP projects under their management, except for the projects specified in Clauses 1 and 2 of this Article.

4. Provincial People’s Councils shall be accorded authority to make decisions on policies for investment in PPP projects under their jurisdiction, except for the projects specified in Clauses 1 and 2 of this Article.

5. In case of adjustment in policies for investment in PPP projects, authority to make decisions on policies for investment in PPP projects shall be subject to regulations laid down in Clause 2 of Article 18 herein.

Article 13. Procedures for making decisions on investment policies for PPP projects

1. Procedures for grant of decisions on investment policies for PPP projects falling under the National Assembly’s delegated authority shall be subject to the following regulations:

a) PPP project preparation unit prepares a pre-feasibility study report as a basis for the relevant competent authority to submit it to the Government, and concurrently send it to the Ministry of Planning and Investment;

b) The Ministry of Planning and Investment offers the Prime Minister a suggestion about setting up the State Assessment Board;

c) The State Assessment Board conducts an assessment of the submitted pre-feasibility study report. In case any project uses public investment capital, the evaluation of funding sources and the capability to balance investment capital shall be subject to law on public investment;

dd) The Government prepares complete documentation submitted to the National Assembly for its review and decision;

dd) The National Assembly’s affiliate verifies and reviews the Government’s submitted documentation;

e) The National Assembly considers ratifying resolutions regarding investment policies for PPP projects.

2. Procedures for grant of decisions on investment policies for PPP projects falling under the Prime Minister’s delegated authority shall be subject to the following regulations:

a) PPP project preparation unit prepares a pre-feasibility study report as a basis for the competent authority to send it to the Ministry of Planning and Investment;

b) The Minister of Planning and Investment offers the Prime Minister a suggestion about setting up the Interdisciplinary Assessment Board;

c) The Interdisciplinary Assessment Board conducts an assessment of the submitted pre-feasibility study report;

d) Ministry of Planning and Investment leads the evaluation of funding sources and capacity for balancing central government’s budget capital under the provisions of law on public investment in the case of PPP projects using central government’s budget capital before sending them to the Interdisciplinary Assessment Board;

dd) Local public investment authorities lead the evaluation of funding sources and capacity for balancing local government’s budget capital under the provisions of law on public investment in the case of PPP projects using local government’s budget capital before sending them to the Interdisciplinary Assessment Board;

e) The Interdisciplinary Assessment Board completes and sends an assessment report to the relevant competent authority;

g) Competent authority prepares complete documentation submitted to the Prime Minister for his review and decision;

h) The Prime Minister issues investment policy decisions.

3. Procedures for grant of decisions on investment policies for PPP projects falling under the authority to grant investment policy decisions delegated to Ministers, heads of central authorities and other bodies shall be subject to the following regulations:

a) PPP project preparation units prepare pre-feasibility study reports as a basis for Ministers and heads of central authorities and other bodies to consider issuing decisions;

b) Grassroots-level Assessment Boards or authorized units carry out the assessment of pre-feasibility study reports;

c) Public investment authorities under the control of Ministries, central authorities and other bodies lead the evaluation of funding sources and capacity for balancing public investment capital under the provisions of law on public investment in the case of PPP projects using public investment capital before sending them to the Grassroots-level Assessment Boards or authorized assessment units;

d) Grassroots-level Assessment Boards or authorized assessment units complete and send assessment reports to PPP project preparation units;

dd) PPP project preparation units prepare complete documentation for submission to Ministers and heads of central authorities and other bodies for their review and decision;

e) Ministers, heads of central authorities and other bodies issue their investment policy decisions.

4. Procedures for grant of decisions on investment policies for PPP projects falling under the delegated authority of provincial People’s Councils shall be subject to the following regulations:

a) PPP project preparation units prepare pre-feasibility study reports for submission to provincial People’s Committees;

b) Grassroots-level Assessment Boards or authorized assessment units carry out the assessment of pre-feasibility study reports;

c) Local public investment lead the evaluation of funding sources and capacity for balancing public investment capital under the provisions of law on public investment in the case of PPP projects using public investment capital before sending them to Grassroots-level Assessment Boards or authorized assessment units;

d) Grassroots-level Assessment Boards or authorized assessment units complete and send assessment reports to PPP project preparation units;

dd) PPP project preparation units prepare complete documentation as a basis for provincial People's Committees to submit them to provincial People's Councils for their review and decision;

e) Provincial People’s Councils issue investment policy decisions.

5. As for PPP projects using regular expenditures or lawful revenues reserved for regular spending purposes by state authorities or public service units for making payments to PPP project enterprises, or using state budget reserves for offsetting reduced revenues, financial institutions at all levels evaluate the capability of balancing the budget according to the provisions of law on state budget, and send them to PPP Project Assessment Boards or assigned assessment units for  a general report submitted to competent authorities to seek their investment policy decisions.

Article 14. Selection of PPP projects and formulation of pre-feasibility study reports for PPP projects

1. Requirements for a project’s eligibility for PPP investment shall comprise:

b) Necessity of making investment;

b) The selected project falls within the sectors prescribed in clause 1 of Article 4 in this Law and meets the minimum total investment requirement prescribed in clause 2 of Article 4 herein;

c) The selected project is not the duplicate of the PPP project obtaining an investment policy decision or a project approval decision;

d) PPP investment approach brings about more benefits than other investment approach;

dd) State capital may be available on demand.

2. Bases for preparation of pre-feasibility study reports shall include:

a) National socio-economic development strategies, plans and other planning schemes in accordance with law on planning;

b) Provisions of this Law and other regulations of other laws related to the sectors where projects invest;

c) Other relevant legislative documents.

3. Pre-feasibility study report shall contain the following main subject matters:

a) Necessity of making investment; more advantages provided by PPP investment than other investment form; effects of PPP projects on the community and population living within these projects;

b) Objectives; proposed scale, location and time of execution of projects, land and other natural resource demands;

c) Preliminary design plans under the construction law for projects with construction components, other relevant laws for projects without construction components; preliminary explanatory notes or interpretations on technical and technological plans; preliminary division of component projects (if any);

d) Preliminary assessment of the socio-economic efficiency of the project; preliminary assessment of environmental impacts in accordance with legislative regulations on environmental protection as applied to public investment projects;

dd) Preliminary total investment estimate; preliminary assessment of the project's financial plan; proposal for use of state capital invested in the project (if any); proposal for application of the method of payment to the investor with respect to BTL or BLT projects;

e) Proposed PPP contract type; investment incentive and guarantee forms; mechanism for distribution of reduced revenues.

Article 15. Assessment of pre-feasibility study reports for PPP projects

1. Documentation on assessment of PSR shall comprise:

a) Written request for assessment;

b) Draft application for decision on investment policy;

c) Pre-feasibility study report;

d) Other legislative materials related to the project.

2. Assessment of a pre-feasibility study report shall mainly focus on the followings:

a) Conformity with requirements for a project’s eligibility for PPP investment specified in Clause 1 of Article 14 herein;

b) Relevance to bases for formulation of pre-feasibility study report prescribed in clause 2 of Article 14 herein;

c) Efficiency of investment; capital recovery;

d) Relevance of the PPP contract type;

dd) Mechanism for distribution of revenue reductions;

e) Funding sources and capital balancing capability of PPP projects using state capital.

Article 16. Request documentation for investment policy decisions for PPP projects

1. Request form for investment policy decision.

2. Draft decision on investment policy.

3. Pre-feasibility study report.

4. Assessment report on pre-feasibility study report; review and verification report on projects falling under the National Assembly's delegated authority to grant investment policy decision.

5. Other legislative materials related to the project.

Article 17. Information included in an investment policy decision for a PPP project

1. An investment policy decision shall include the following main information:

a) Project name;

b) Competent authority’s name;

c) Objectives; proposed project scale, site and time of execution of the project, land and other natural resource demands;

d) Proposed PPP contract type;

dd) Preliminary total investment estimate; preliminary financial plan: structure of funds invested in the project, expected price bracket, and prices of public products and services with respect to projects applying the mechanism for collecting fees directly from users;

e) Mechanism for guarantee of investment and distribution of revenue reductions.

2. As for projects using high or new technologies, apart from those prescribed under the provisions of Clause 1 of this Article, an investment policy decision also includes the bid solicitor's name, investor selection form and time of investor selection event.

Article 18. Modification of PPP investment policy

1. PPP investment policy shall be adjusted if the PPP project's objectives, location, scale or type of contract is changed, and the total investment is increased by 10% or more, or the value of state capital invested in the PPP project is increased, due to the following causes:

a) A project is affected by force majeure events;

b) Relevant planning, policies and laws change;

c) Pre-feasibility study report is modified.

2. Competent authorities mandated to make decisions on policies for investment in PPP projects shall be authorized to issue decisions to modify policies for investment in those projects and shall be responsible for such decisions.

3. Procedures for a competent authority’s grant of a decision to modify an investment policy for a PPP project shall be subject to regulations laid down in Article 13 applied to adjustments or modifications.

4. Documentation on modification of an investment policy, including:

a) Request form for adjustment or modification of investment policy;

b) Contents of a pre-feasibility study report subject to adjustment or modification;

c) Report on inspection and review of modified or adjusted contents of a pre-feasibility study report;

d) Other legislative materials related to the project.

Article 19. Contents of a feasibility study report for a PPP project

1. The PPP project preparation unit shall make a feasibility study report, based on investment policy decisions.

2. Main subject matters of a feasibility study report, including:

a) Necessity of making investment; more advantages provided by PPP investment than other investment form; results of response to comments on the impacts of PPP projects upon receipt of opinions from People's Councils, People's Committees, Vietnam Fatherland Front of the provinces where the projects are located, or investment-related trade associations;

b) Relevance to related national socio-economic development strategies, plans and other related planning schemes in accordance with law on planning; 

c) Objectives; scale; location; land and other natural resource demands;

d) Project execution time and schedule, including contract term and construction time for projects with construction components;

dd) Explanatory notes on requirements concerning technical or technological plans, quality standards of construction works, infrastructure systems or public products and services; design dossiers prescribed under construction and other relevant laws; connection between component projects (if any);

e) PPP contract type; project-related risk analysis and risk management measures;

g) Investment incentive or guarantee form, mechanism for splitting of reduced revenues;

h) Total investment; financial plan; estimated state capital and corresponding management and use method (if any); results of survey of interest of investors and lenders (if any); capability to raise capital for implementation of projects; plans for organization of management, business or provision of public products and services;

i) Socio-economic efficiency; environmental impact assessment report prepared in accordance with law on environmental protection.

Article 20. Documentation requirements and contents of assessment of a feasibility study report for a PPP project

1. Documentation requirements of assessment of a feasibility study report shall comprise:

a) Written request for assessment;

b) Application form for approval of the project;

c) Full texts of the feasibility study report;

d) Full texts of the decision on investment policy;

dd) Other legislative instruments related to the project.

2. Assessment of a feasibility study report shall mainly focus on the followings:

a) Conformity with legal bases;

b) Necessity of making investment;

c) Relevance to requirements concerning technical and technological plans, quality requirements and standards of the project, infrastructure systems or public products or services. The assessment of matters related to design, technical, technological documents and quality standards shall comply with regulations of law on construction and other relevant laws;

d) Relevance of the PPP contract type;

dd) Financial feasibility; plans for organization of management, business or provision of public products and services;

dd) Socio-economic effectiveness.

Article 21. Authority to approve PPP projects

1. The Prime Minister shall be vested with authority to approve the projects referred to in clause 1 of Article 12 herein.

2. Ministers, Heads of central authorities and other agencies shall be authorized to approve the projects under their management as prescribed in Clause 2 and 3 of this Law.

3. Presidents of provincial People’s Committees shall be mandated to approve the projects under their management as prescribed in Clause 2 and 4 of Article 12 in this Law.

Article 22. Documentation requirements for approval of PPP projects

1. Application form for approval of the project.

2. Draft decision on approval of the project.

3. Feasibility study report.

4. Report on assessment of feasibility study report.

5. Full texts of the decision on investment policy.

6. Other legislative materials related to the project.

Article 23. Contents of the investment policy decision for a PPP project

An investment policy decision for a PPP project shall include the following main information:

1. Project name;

2. Contract signatory’s name;

3. Objectives; scale; location; time of project execution; land and other natural resource demands;

4. PPP contract type;

5. Total investment; structure of capital invested in the project; prices and charges of public products and services for projects applying the contract under which the mechanism for direct fee collection from users is carried out;

6. Name of the bid solicitor, form of investor selection, time of investor selection, except for the case specified in Clause 2 of Article 17 in this Law.

Article 24. Modification of PPP project

1. Feasibility study report may be revised if:

a) A project is affected by force majeure events;

b) Elements bringing about higher efficiency for the project appear;

c) There is any changes in the planning, relevant policy or law directly affecting objectives, location and scale of the project;

d) Selection of the investor in implementation of the project fails.

2. If any change in a feasibility study report results in any change in objectives, scale, location and type of PPP contract, or an increase of at least 10% or appreciation in state capital invested in a PPP project, processes and procedures for grant of decision on adjustment of investment policy must be carried out before seeking the relevant competent authority’s decision on approval of modification of the project.

3. Authority, processes and procedures for assessment of and approval of modification of a PPP project shall be subject to regulations laid down in Article 19, 20, 21, 22 and 23 of this Law with respect to modifications or revisions.

4. Documentation requirements for modification or revision of a PPP project shall include:

a) Application form for approval of modification of the project;

b) Draft decision on approval of modification of the project;

c) Report on inspection and review of modified or adjusted contents of a feasibility study report;

d) Other legislative materials related to the project.

Article 25. Public disclosure of PPP projects

1. Within 10 days from the date of issuance of the decision on investment policy, the decision on adjustment in the investment policy (if any), the decision on approval of the project, the decision on approval of the adjustment (if any), the competent authority shall make information about the project publicly available under the provisions of Clause 2 of this Article.

2. Project details to be publicly disclosed shall comprise:

a) Decision on investment policy, decision on adjustment in investment policy (if any);

b) Decision on approval of the project, decision on approval of adjustment in the project (if any);

c) Information about the contact address of the relevant competent authority, contract signatory and bid solicitor.

Section 2. PPP PROJECTS PROPOSED BY INVESTORS

Article 26. Requirements of an investor-proposed PPP project

1. An investor-proposed PPP project must meet the following requirements:

a) Conforming to eligibility requirements of a project for PPP investment specified at Point a, b, c and d of Clause 1 of Article 14 in this Law;

b) Ensuring that a PPP project is not duplicated with other PPP projects for which competent authorities have prepared pre-feasibility study reports or approved of other investors preparing pre-feasibility study reports;

c) Conforming to the national socio-economic development strategies, plans and other relevant planning schemes in accordance with law on planning. 

2. The open tendering and competitive negotiation for projects proposed by investors must be conducted according to the provisions of Article 37 or Article 38 of this Law.

Article 27. Procedures for preparation of investor-proposed PPP projects

1. Procedures for preparation of the proposal documentation shall be as follows:

a) The investor submits the written proposal form for implementation of a PPP project to a relevant competent authority. In case where a receiving competent authority cannot be identified, it shall be sent to the state PPP investment authority;

b) The competent authority considers responding in writing that the investor approves or refuses the investor’s bid for preparation of the pre-feasibility study report. The written approval may delineate the way to coordinate with a competent authority’s affiliates, requirements concerning the deadline for submission of an investor’s project proposal and other relevant matters; in case of disapproval, clearly stating the reasons;

c) In case of being approved by a competent authority, the investor prepares a project proposal, including: pre-feasibility study report, documents and records on the investor’s legal status, capacity and experience;

d) The investor sends the proposal documentation to the competent authority;

dd) If the project proposal documentation is not approved, the investor shall bear all costs and risks.

2. Projects proposed by investors shall be subject to the assessment and investment policy decision according to the provisions of Article 6, 12, 13, 14, 15, 16 and 17 of this Law.

3. Feasibility study report formulation and assessment, and project approval procedures shall be carried out as follows:

a) The investor takes charge of preparing the feasibility study report under Article 19 herein;

b) The feasibility study report prepared by the investor shall be subject to the assessment conducted under Article 20 herein;

c) The project is approved under the regulations laid down in Article 21, 22 and 23 herein;

d) If the project is not approved, the investor shall bear all costs and risks.

4. Project announcement procedures shall be subject to the following regulations:

a) After an investor-proposed project obtains the investment policy decision or the project approval decision from a relevant competent authority, the competent authority shall publish project information in accordance with Article 25 of this Law and name of the investor proposing the project;

b) For projects containing information related to intellectual property rights, trade secrets, technologies or capital raising agreements for project execution subject to the confidentiality requirement, the investor agree with a relevant competent authority about unpublished information.

5. The adjustment or modification of a PPP project investment policy shall be subject to regulations laid down in Article 18 herein while the adjustment or modification of a PPP project shall be subject to regulations laid down in Article 24 herein.

6. Costs of preparation of the pre-feasibility study report or the feasibility study report shall be charged into total investment in the project.  In case where the investor submitting the project proposal is not selected, the expenses incurred from making the pre-feasibility study report or the feasibility study report shall be reimbursed by the selected investor.

7. The Government shall elaborate on this Article.