Chương I Nghị định 23/2024/NĐ-CP: Những quy định chung

Chapter I

GENERAL PROVISIONS

Article 1. Scope

1. The Government elaborates the following articles of the Law on Bidding on selection of investors to implement projects subject to bidding organization in accordance with special laws:

a) Clause 6, Article 6 on ensuring competitiveness in investor selection;

b) Clause 6, Article 10 on incentives in investor selection;

c) Clause 3, Article 15 on costs associated with investor selection;

d) Clause 4, Article 35 on investor selection methods;

dd) Clause 3, Article 46 on investor selection procedures;

e) Clause 5, Article 50 and Point c, Clause 2, Article 84 on procedures, costs, and roadmap for online investor selection; national database on investor selection; or bidding for investor selection that is not conducted on the Vietnam E-procurement System (VNEPS);

g) Clause 5, Article 62 on bid evaluation methods and criteria;

h) Clause 2, Article 73 on the contents of investment project contracts;

i) Clause 4, Article 86 on inspection and supervision of bidding for investor selection;

k) Clause 4, Article 88 on handling situations in investor selection;

l) Clause 2, Article 96 on transitional regulations.

2. Measures to implement the Law on Bidding on investor selection, including:

a) Announcing investment project information for projects not subject to investment guideline approvals;

b) Implementing investment projects.

3. Requirements pertaining to capacity and experience of members of expert teams and appraisal teams; information connection and sharing between VNEPS and other information systems; online bidding techniques in line with the features and development of VNEPS; and actions against violations in bidding are laid down in the corresponding regulations in the Government's Decree on elaboration of and measures to implement the Law on Bidding regarding contractor selection.

4. Projects subject to bidding for investor selection as prescribed in Clause 1 of this Article include:

a) Projects for international football betting business in accordance with law on the business of betting on horse racing, greyhound racing, and international football;

b) Projects for construction of domestic solid waste treatment works in accordance with law on environmental protection;

c) Dredging projects in seaport waters and inland waterways combined with product recovery in accordance with law on maritime traffic and inland waterways;

d) Projects for specialized aviation works at airports and airfields in accordance with law on civil aviation, except for aviation operations centers of domestic airlines at airports, airfields;

dd) Projects for road traffic works in accordance with law on road traffic including mixed-function areas serving public and commercial purposes;

e) Projects for renovation and re-construction of apartment buildings in accordance with housing law;

g) Projects for construction of water supply source works, water supply systems in accordance with law on production, supply and consumption of clean water;

h) Projects subject to bidding when there are at least 2 investors registering for implementation, including:  projects in the fields of education, vocational training, health, culture, and sports, environment in accordance with law on promotion of private sector involvement, except for projects specified in Points b and g of this Clause; horse and greyhound racing projects, including business of betting on horse racing and greyhound racing according to legal regulations on business of betting on horse racing, greyhound racing and international football; projects for construction of social housing in accordance with housing law.

5. Projects that are subject to bidding in accordance with special laws laid down in Clause 4 of this Article and use land must fully meet the following requirements:

a) Fall under the case where the State appropriates the land in accordance with land law;

In case the land zone where the project is to be implemented has a land parcel managed by the State in accordance with land law, the State shall appropriate the entire project area (including land areas managed by the State within the project scope).

b) Be not eligible for auction of land use rights in accordance with land law, not eligible for auction of public assets in accordance with law on management and use of public assets.

6. Projects not subject to investor selection in accordance with this Decree include:

a) Projects using land in the form of transfer, lease of land use rights, receipt of capital contribution in form of land use rights for production and business in accordance with land law;

b) Be eligible for auction of land use rights in accordance with land law, law on management and use of public assets;

c) Projects of which land is allocated or leased by the State not through auction of land use rights, not through bidding for investor selection in accordance with land law.

Article 2. Regulated entities

1. Organizations and individuals participating in or related to selecting investors to implement investment projects specified in Clause 4, Article 1 of this Decree.

2. Organizations and individuals whose bidding do not fall into the cases specified in Clause 4, Article 1 of this Decree may choose to apply the Law on Bidding in accordance with Clause 4, Article 2 of the Law on Bidding.

Article 3. Interpretation of terms

For the purposes of this Decree, these terms below shall be construed as follows:

1. “investor selection progress timeline” means a schedule that presents all the tasks with corresponding time during the investor selection process, as a basis for conducting investor selection in accordance with Clause 3, Article 49 of the Law on Bidding.

2. “EOI requester” means an agency or unit under a ministry or ministerial-level agency; specialized agency, agency under the Provincial People's Committee, Economic Zone Management Board; District-level People's Committee that is assigned to carry out the procedure for requesting EOI (Expression of Interest).

3. “competent authority” means an agency that approves the investment guidelines according to the law on investment or  an agency that decides to organize bidding for investor selection.  For projects under the investment guideline approval for the National Assembly or the Prime Minister, the competent authority is the agency that decides to organize bidding for investor selection.

4. “agencies deciding to organize bidding for investor selection” include ministries, ministerial-level agencies, Provincial People's Committees, and Economic Zone Management Boards.

5. “total investment capital” includes preliminary total project implementation costs, other costs in accordance with special laws (if any) and compensation, support, and resettlement costs (if any). 

Article 4. Ensuring competitiveness

1. From the date of issuance of an EOI request, the investor that submits an application for registration to implement an investment project must be legally independent and financially independent from the following parties:

a) Competent authority, EOI requester;

b) The consultant on preparation of application for approval for investment guidelines (if the investment project is subject to investment guideline approval), project proposal (if the investment project is not subject to investment guideline approval), except for a project proposed by the investor;

c) The consultant on preparation of a pre-feasibility study report or feasibility study report if the special law requires a pre-feasibility study report or feasibility study report before the organization of an EOI meeting, except for a project proposed by the investor;

d) The consultant on preparation of EOI request and evaluation of the project registration application.

2. From the date of issuance of Bidding document, the investor participating in the bidding may not have shares or capital contributions with the following consultants:

a) The consultant on preparation of application for approval for investment guidelines (if the investment project is subject to investment guideline approval), project proposal (if the investment project is not subject to investment guideline approval), except for a project proposed by the investor;

b) The consultant on preparation of a pre-feasibility study report or feasibility study report if the special law requires a pre-feasibility study report or feasibility study report before organization of the bidding, except for a project proposed by the investor;

c) The consultant on preparation of and evaluation of Bidding document; evaluation of bids; appraisal of investor selection result.

3. From the date of issuance of an EOI request, Bidding document, the investor that submit the project registration application or the investor that participates in the bidding will be assessed as legally independent and financially independent from competent authority, procuring entity, EOI requester if they has no capital ownership ratio of more than 50% of shares, total number of voting shares, capital contribution of each other.  In case the investor submits a project registration application and participates in the bidding as a joint venture, the capital ownership ratio is determined according to the following formula:

Where:

X_i: is the ratio of capital ownership, shares, and voting shares of the competent authority, procuring entity, EOI requester to “the ith joint venture party”.

Y_i: is the equity contribution rate of “the ith joint venture party” in the joint venture agreement.

n: is the number of parties in the joint venture.

4. From the time of issuance of an EOI request or Bidding document, the investor that submits the project registration application or the investor that participates in the bidding and the consultants specified in Clause 1, Clause 2 of this Article may not have the capital ownership ratio of over 30% of shares, total number of voting shares, capital contribution of each other. In case of a joint venture investor or joint venture consultant, the capital ownership ratio is determined as follows:

a) The capital ownership ratio of other organizations, individuals and joint venture investors is determined according to the following formula:

Where:

X_i: is the ratio of ownership of capital, shares, and voting shares of organizations and individuals to “the ith investor participating in the bidding”.

Y_i: is the equity contribution rate of “the ith joint venture party” in the joint venture agreement.

n: is the number of parties in the joint venture.

b) The capital ownership ratio of other organizations, individuals and joint venture consultants is determined according to the following formula:

Where:

X_i: is the ratio of ownership of capital, shares, and voting shares of organizations and individuals to “the ith consultant” in the joint venture.

Y_i: is the ratio of responsibility division in “the ith joint venture agreement document” in the joint venture agreement.

n: is the number of parties in the joint venture.

5. For an investor who has a parent-subsidiary structure in accordance with law on enterprises and submits a project registration application or participates in bidding for an investment project:

a) The parent company or subsidiary company, or parent company or joint venture subsidiary companies may only participate in one project registration application or submits one bid;

b) The investor that submits the project registration application or participates to bid and any of the consultants specified in Clauses 1 and 2 of this Article do not have parent-subsidiary relationship, since the issuance of the EOI request or Bidding document.

6. Determination of the capital ownership ratio between the parties is based on the ratio stated in the Business Registration Certificate, establishment decision, and other equivalent documents.

Article 5. Incentives in investor selection

1. Entities eligible for incentives and incentive rates:

a) Investors that have solutions to apply advanced technology, high technology, environmentally friendly technology, and the best available techniques to minimize environmental pollution to their projects which pose high risk of adverse environmental impacts as prescribed by the Law on environmental protection are entitled to a 5% incentive when having their bids evaluated;

b) Investors that commit to make transfer of technologies included in the List of priority high technologies as prescribed by the Law on high technologies or the List of technologies of which the transfer is encouraged as prescribed by the Law on technology transfer are entitled to a 2% incentive when having their bids evaluated.

2. When bidding, investors must submit documents proving their technology application solutions, technology transfer and the right to legally use technology in accordance with law on high technologies technology transfer, environmental protection, and other relevant laws to enjoy incentives specified in Clause 1 of this Article.

3. Calculation of incentives:

The aggregate score of an entity eligible for incentives is calculated according to the following formula:

Where:

T’_TH: is the aggregate score of the investor eligible for incentives, including the incentive rate for comparison and ranking.

T_TH: is the aggregate score of the investor eligible for incentives, excluding the incentive rate.

M_ƯĐ: is the incentive rate that investor is entitled to in accordance with Clause 1 of this Article.

4. If an investor eligible for incentives specified in Clause 1 of this Article is selected to sign the contract, they must comply with the commitments in their bid and investment project contract.

Article 6. Management of costs and revenues in investor selection

1. Cost limits in case the investor selection is carried out by the competent authority, EOI requester, procuring entity, or appraisal team:

a) The cost of preparing the EOI request or Bidding document is 0.05% of the total investment capital but not exceeding 200,000,000 (two hundred million) VND;

b) The cost for appraisal of each item of Bidding document and investor selection result is 0.02% of total investment capital but not exceeding 100,000,000 (one hundred million) VND;

c) The cost of evaluating project registration application or bids is 0.03% of total investment capital but not exceeding 200,000,000 (two hundred million) VND;

d) In case of reorganizing the investor selection, the cost of preparing the EOI request or Bidding document; or evaluating bids is up to 50% of the equivalent cost specified in Points a and b of this Clause.

2. In case a consultant is hired to perform the tasks specified in Clause 1 of this Article, investor selection costs are as follows:

a) The costs are determined based on the description, scope of work, performance duration, capacity and experience of the consultant, salary level in accordance with law and other factors;

b) In case there are no regulations on expert salary level, it is based on statistics with costs paid to experts in similar projects implemented in a specified period of time or in total investment capital.

3. Detailed expenditures in case the investor selection is carried out by the competent authority, EOI requester, procuring entity, or appraisal team:

a) The expenditure on survey and collection of project information as a basis for preparing the EOI request or Bidding document, including the cost for preparing a project proposal (if the investment project is not subject to investment guideline approval) or an application for investment guideline approval (if the investment project is subject to investment guideline approval) (if any);

b) The expenditure on office supplies, translation, propagation, and communications;

c) The expenditure on meeting for soliciting expressions of interest, inviting bids, and opening bids;

d) The expenditure on posting information on investor selection;

dd) Other expenditures on preparing the EOI request; preparing and appraising Bidding document; evaluating project registration application, bids, opening bids, and resolving complaints.

4. The expenditure specified in Point d, Clause 3 of this Article is applied according to the corresponding regulations in the Government's Decree on elaboration of and measures to implement the Law on Bidding on contractor selection.

5. Funds to pay for the expenditures in Clauses 1 and 3 of this Article are used from regular expenditures of the competent agency, EOI requester, procuring entity, and appraisal team.

6. Bases for estimating expenditures include: Decision on investment guideline approval or investment project information approval made by a competent authority; policies and regulations according to relevant current laws.

7. The preparation, approval, and enactment of estimates of investor selection expenditures specified in Clauses 1, 2 and 3 of this Article are carried out in accordance with the law on preparation, approval and enactment of regular expenditure estimates from the state budget as follows:

a) Pursuant to the State Budget Law and Clause 6 of this Article, the EOI requester or the procuring entity shall prepare expenditure estimates according to each detailed expenditure specified in Clause 3 of this Article and include them into their annual budget estimate, and then submit it to the competent authority for approval in accordance with the law on state budget;

b) After the annual budget estimate is approved, the competent authority allocates regular expenditure estimates to assigned units in accordance with the law on state budget;

c) If a project comes up that requires bidding during the year, the EOI requester or the procuring entity shall supplement the estimate and submit it to the competent authority for approval in accordance with law on state budget.

8. Management of investor selection costs:

a) The management, use, and settlement of investor selection costs shall comply with the law on state budget. In case the EOI requester or the procuring entity is a public sector entity that organize the investor selection, the management, use and settlement of investor selection costs shall be carried out in accordance with the law on the financial autonomy mechanism of public sector entities;

b) In case a consultant is hired to perform part or all of the tasks in Clause 1 of this Article, the total cost of investor selection including taxes must not exceed the approved estimate for the consultancy. The payment for the consultant is made according to the contract between the competent authority, the procuring entity, or EOI requester and the consultant. The management, use, payment, and settlement for the consultant are carried out in accordance with applicable regulations of the law on state budget.

9. Management of investor selection revenues:

a) For international bidding, the selling price (including tax) of a set of electronic Bidding document must not exceed 30,000,000 (thirty million) VND;

b) Revenues from the sale of electronic Bidding document specified in Point a of this Clause, after fulfilling tax obligations, shall be transferred by the procuring entity to the state budget within 3 working days from the deadline for submission of bids.

Article 7. Expenditures on resolving investors' petitions regarding investor selection result

1. In case there is a petition about the investor selection result resolved by a competent person, the investor shall pay a fee for resolving the petition to the standing assistance department of the Petition Resolution Advisory Council (hereinafter referred to as the Advisory Council) in accordance with Point dd, Clause 2, Article 90 of the Law on Bidding.

2. The fee paid by the investor to the Advisory Council specified in Clause 1 of this Article is 0.02% of the total project investment capital of the petitioning investor but not exceeding 200,000,000 (two hundred million dong). During the petition process, if the investor withdraws the petition, they will only be refunded 50% of the paid petition fee in case the Advisory Council has not been established or the Advisory Council has been established but a council meeting has not yet been held. In case the Advisory Council has held a council meeting, the investor will not be refunded their paid petition fee.

For the remaining petition fee paid by investor, the standing assistance department of the Advisory Council shall transfer it to the state budget within 7 working days from the date on which the investor withdrew their petition.

3. The standing assistance department of the Advisory Council shall prepare and submit the expenditure estimate for resolving each investor’s petition to the President of the Advisory Council for approval.

4. The expenditure estimate approved by the President of the Advisory Council specified in Clause 3 of this Article may not exceed the fee paid by the investor as prescribed in Clause 2 of this Article.

5. The President of the Advisory Council shall decide the expenditure limits according to the approved estimate for members of the Advisory Council, the standing assistance department of the Advisory Council and other expenses to resolve the petition. Payment of remuneration to members of the Advisory Council for Resolution of Petitions who are officials and public employees shall comply with the relevant laws.

6. The standing assistance department of the Advisory Council shall spend the expenditure on resolving a petition according to the expenditure estimate approved by the President of the Advisory Council.

7. After resolving the petition, the President of the Advisory Council is responsible for confirming the actual expenditure. In case the actual expenditure is less than the petition fee paid by the investor to the Advisory Council, the standing assistance department of the Advisory Council shall make a refund to the investor within 7 days from the date on which the President of the Advisory Council confirms the actual expenditure.

8. In case the investor's petition is concluded to be correct, the petition resolution document on investor selection result must clearly state that the petitioning investor will receive a refund of the paid petition fee.  The standing assistance department of the Advisory Council shall issue a written request to the procuring entity to refund the investor an amount equal to the petition fee that the investor has paid, minus the amount refunded by the standing assisting department of the Advisory Council in accordance with Clause 7 of this Article (if any).

9. Funding sources to refund the investor according to the document on resolving the petition on investor selection result are specified as follows:

a) In case the procuring entity is an administrative unit or a public sector entity, the funding source to refund the investor will be allocated from their regular expenditure estimate;

b) In case the procuring entity is not an administrative unit or a public sector entity, the funding source to refund the investor will be allocated from their operating budget.

10. Any organizations or individuals in breach as specified in the decision on resolving petition on investor selection result made by the competent authority must compensate the procuring entity in accordance with law.

Article 8. Investor selection procedures

1. For projects applying competitive bidding, limited bidding according to the single-stage, one-envelope method and projects applying the competitive bidding according to single-stage, two-envelope method:

a) Announce investment projects;

b) Prepare bidding for investor selection;

c) Organize bidding for investor selection;

d) Evaluate bids;

dd) Submit, appraise, approve, and publish the investor selection result;

e) Negotiate, finalize, and sign contracts.

2. For projects applying open bidding according to the two-stage, one-envelope method:

a) Announce investment projects;

b) Prepare bidding for investor selection in first stage;

c) Organize bidding for investor selection in first stage;

d) Prepare and organize bidding for investor selection in second stage;

dd) Evaluate bids in second stage;

e) Submit, appraise, approve, and publish the investor selection result;

g) Negotiate, finalize, and sign contracts.

3. For projects in which the number of interested investors must be determined as prescribed in Clause 2, Article 46 of the Law on Bidding and Point h, Clause 4, Article 1 of this Decree:

a) Announce investment projects;

b) Invite for expression of interests;

c) In case there are at least 2 interested investors registering to implement the project, comply with Points b, c, d, dd, and e Clause 1 of this Article (for projects applying competitive bidding according to the single-stage, one-envelope method) or single-stage, two-envelope method, or points b, c, d, dd, e and g, Clause 2 of this Article (for projects applying competitive bidding according to the two-stage, one-envelope method).