Chương I Nghị định 15/2015/NĐ-CP: Những quy định chung

Chapter I

GENERAL PROVISIONS

Article 1. Scope of regulation

This Decree provides the regulation on the sectors and requirements, procedures for execution of the investment projects developed in the form of public-private partnerships; the management and use of the State funding for execution of investment projects; the government’s investment incentive and assurance policies, and government agencies’ responsibilities for management of the investment projects developed in the form of public-private partnership.

Article 2. Regulated entities

This Decree applies to the regulatory agency, investor, project enterprise, lender and agency/organization/individual involved in the execution of the project developed the form of public-private partnership.

Article 3. Interpretation of terms

In this Decree, these terms can be construed as follows:

1. “Investment in the form of public-private partnership” (hereinafter referred to as PPP) means any form of investment on the basis of a contract between a regulatory agency and an investor, a project enterprise to carry out, manage and operate an infrastructure and public service project.

2. “Project contract” means the contracts prescribed in Clause 3, 4, 5, 6, 7, 8 and 9 of this Article and other similar contracts prescribed in Clause 3 Article 32 hereof.

3. “Build – Operate – Transfer contract” (hereinafter referred to as BOT contract) means a type of contract to build an infrastructure project between a regulatory agency and an investor; after completing the construction, the investor shall be entitled to operate it for a specified period of time; eventually, the investor shall transfer it to the regulatory agency.

4. “Build – Transfer – Operate contract” (hereinafter referred to as BTO contract) means a type of contract to build an infrastructure project between a regulatory agency and an investor; after completing the construction, the investor shall transfer it to the regulatory agency, and shall be entitled to operate it for an agreed period of time.

5. “Build – Transfer contract” (hereinafter referred to as BT contract) means a type of contract to build an infrastructure project between a regulatory agency and an investor; after completing the construction, the investor shall transfer it to the regulatory agency, and then the investor will be allotted a land parcel used for carrying out another project under the provisions of Clause 3 Article 14 and Clause 3 Article 43 of this Decree.

6. “Build – Own – Operate contract” (hereinafter referred to as BOO contract) is a type of contract to build an infrastructure project between a regulatory agency and an investor; after completing the construction, the investor shall take ownership of this project and have the right to operate it for a specified period of time.

7. The Build – Transfer – Lease contract (hereinafter referred to as BTL contract) means a type of contract to build an infrastructure project between a regulatory agency and an investor; after completing the construction, the investor shall transfer it to the regulatory agency and shall be entitled to provide services on the basis of operation of such project for a specified period of time; the regulatory agency shall have the authority to lease and make payment for the investor’s services according to the regulation in Clause 2 Article 14 of this Decree.

8. “Build – Lease – Transfer contract” (hereinafter referred to as BLT contract) means a type of contract to build an infrastructure project between a regulatory agency and an investor; after completing the construction, the investor shall have the right to provide services on the basis of operation of such projector a specified period of time; the regulatory agency shall have the authority to lease and make payment for the investor’s services according to the regulation in Clause 2 Article 14 of this Decree; when the lease term expires, such project shall be transferred to the regulatory agency.

9. “Operation & Management contract” (hereinafter referred to as O&M contract) means a type of contract to operate the project between a regulatory agency and an investor for a specified period of time.

10. “Other project” means the projects that the investors shall carry out in order to recover the money invested in infrastructure projects.

11. “Project proposal” is a document that contains the general information on the need, feasibility and effect of the project.

12. “Feasibility study report” means a document that contains the information on the need, feasibility and effect of the project.

13. “Total investment” means the whole of capital invested for the construction project and the initial working capital for the operation and management of the project.

14. “Equity capital” means the investor’s stake in the project as prescribed in Article 10 of this Decree.

15. “Investor” means any organization or individual that makes investment in a project according to the regulations on the investment and relevant laws.

16. “Project enterprise” means the enterprise set up by the investor to carry out the project.

17. “State-owned enterprise” means the enterprise of which 100% charter capital is held by the State.

18. “Lender” means the organization extending credit to the investor and project enterprise to carry out the project.

Article 4. Investment project sectors and classification

1. The projects on the construction, improvement, operation and management of infrastructural works, the supply of public equipment and utilities include:

a) Transportation infrastructure and supporting services;

b) Lighting system; clean water supply system; water drainage system; sewage collection and disposal system; social housing; resettlement housing; cemetery;

c) Power plants, transmission lines;

d) Infrastructure works for healthcare, education, training, cultural activities, sports and relating services; head offices of regulatory agencies;

dd) Infrastructure works for commerce, science and technology, meteorology and hydrology, economic zones, industrial zones, hi-tech zones, concentrated information technology zones; the application of information technology;

e) Infrastructure works for agriculture and rural development, and the services for enhancing the correlation of agricultural production with farm product processing and sale;

g) Other sectors decided by the Prime Minister.

2. The projects prescribed in Clause 1 of this Article are classified according to the regulations on public investment, including projects of national importance and the Group-A, B and C projects.

3. Ministries, ministerial-level agencies shall preside over, cooperate with the Ministry of Planning and Investment in providing detailed guidance on the investment sectors that fall within Ministries’ jurisdiction.

Article 5. Expenses for the investment preparation and the execution of the projects allocated by Ministries, provincial People’s Committees and regulatory bodies

1. The expenses for the investment preparation and the execution of the projects allocated by Ministries, ministerial-level agencies, Governmental agencies and People’s Committees of provinces (hereinafter referred to as Ministries, provincial People’s Committees and regulatory bodies) includes:

a) The expenses for the project formulation, evaluation and approval for the project proposals, feasibility study reports;

b) The expenses for investor selection processes;

c) The expenses for the management of the project management units affiliated to the regulatory agencies, including those incurred from the supervision of performance and the construction quality;

d) The expenses for the project announcement;

dd) The operating expenses of the central PPP project management unit;

e) The expenses for hiring consultants to assist in the activities within the area of the responsibility of regulatory agencies prescribed in Clause 5 Article 8 of this Decree;

g) The expenses for organization of conferences, seminars and negotiation of project contracts and relating contracts;

h) Other expenses.

2. The expenses prescribed in Point a, b and c Clause 1 of this Article is funded by:

a) The State budget, according to the balancing of annual budget plans for investment and development projects of the Ministries, regulatory bodies and provincial People’s Committees;

b) The capital for the investment preparation prescribed in Article 6 of this Decree;

c) The receipts from the sale of the invitations for bid;

d) The money repaid by the selected investor;

dd) Other lawful sources of capital.

3. The expenses prescribed in Point d, dd, e, g and h Clause 1 of this Article shall be allocated from the State budget included in the administrative expenditure plan outlined by Ministries, regulatory bodies and provincial People’s Committees.

Article 6. The funding for investment preparation

1. The Ministry of Planning and Investment shall mobilize and manage the Official Development Assistance (ODA) funds, concessional loans from foreign sponsors and other sources of capital under the decision of the Prime Minister for the investment preparation.

2. The capital prescribed in Clause 1 of this Article shall be allocated to Ministries, regulatory bodies and provincial People’s Committees to pay for the investment preparation prescribed in Point a and b Clause Article 5 of this Decree.

3. The investor who is selected to execute the project shall repay the expense for investment preparation and the expense for preserving the funding for investment preparation so as to provide other funding for other projects.

4. The Ministry of Planning and Investment shall preside over, cooperate with the Ministry of Finance in providing guidance on the implementation of this Article.

Article 7. Steering committee and the central PPP unit

1. The PPP steering committee is set up and operates under the decision of the Prime Minister.

2. Based on specific management requirements and conditions, Ministries, regulatory bodies and provincial People’s Committees shall appoint their directly-affiliated specialized agencies to be the central units in charge of the execution of the PPP projects of Ministries, sectors and localities (hereinafter referred to as the central unit). Ministries and regulatory bodies shall request the Prime Minister to give decision on the establishment of the leading units when necessary.

Article 8. Regulatory agencies that have the authority to sign and carry out the project contracts

1. Ministries, regulatory bodies and provincial People’s Committees are those who have the authority to sign the project contracts within their functions, tasks, powers, and adhere to their rights and obligations agreed upon in the project contract with investors.

2. Based on functions, tasks, powers and specific management conditions, Ministries, regulatory bodies can delegate to their affiliates; provincial People’s Committees can delegate to their directly affiliated specialized agencies or the People’s Committees of districts to sign and execute the group B or C project contracts.

3. The delegation of authority prescribed in Clause 2 of this Article must be performed in writing in which the scope of authority delegation, responsibilities of the authorized agencies for the investment preparation, and contract negotiation, conclusion and execution.

4. Regulatory agencies, authorized agencies defined in Clause 2 of this Article shall carry out or request the project management units to carry out their assigned duties but, under any circumstances, shall be responsible for fulfilling their obligations agreed upon in the project contract.

5. When necessary, regulatory agencies have the authority to appoint an independent consultancy organization to assist in the performance of a number of duties prescribed in Clause 4 of this Article.

Article 9. Procedures for the project implementation

1. Except for the group C projects prescribed in Clause 2 of this Article, project shall be carried out under the following procedures:

a) Formulate, evaluate, approve and announce the projects according to the regulation in Chapter III of this Decree;

b) Prepare, evaluate, and approve the feasibility study reports according to the regulation in Chapter IV of this Decree;

c) Select investors; negotiate and sign the investment agreement, project contracts according to the regulation in Chapter V of this Decree;

d) Follow the procedures for the issuance of Investment Registration Certificate and set up the project management enterprises according to the regulation in Chapter VI of this Decree;

dd) Carry out the projects according to the regulation in Chapter VII of this Decree;

e) Complete the financial reporting and transfer of the project according to the regulation in Chapter VIII of this Decree.

2. Group C projects are carried out under the following procedures:

a) Formulate, evaluate, approve and announce the project according to the regulation in Chapter III of this Decree;

b) Select investors; negotiate and sign the project contracts according to the regulation in Chapter V of this Decree;

c) Carry out the projects according to the regulation in Chapter VII of this Decree;

d) Complete the financial reporting and transfer of the project according to the regulation in Chapter VIII of this Decree.