Chương IV Nghị định 23/2024/NĐ-CP: Quy trình, thủ tục lựa chọn nhà đầu tư đối với dự án cần xác định số lượng nhà đầu tư quan tâm

Chapter IV

INVESTOR SELECTION PROCEDURES FOR PROJECTS WHICH NEED TO DETERMINE THE NUMBER OF INTERESTED INVESTORS

Article 36. Application of procedures for invitation for expression of interests (invitation for EOIs)

1. Procedures for invitation for expression of interests apply to projects that need to determine the number of interested investors in accordance with special laws specified in Point h, Clause 4, Article 1 of this Decree.

2. International invitation for EOIs applies to investment projects specified in Clause 1 of this Article, except for the cases specified in Points a, b, c and d, Clause 2, Article 11 of the Law on Bidding and other cases as prescribed by special laws.

3. The competent person will assign 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 to act as the EOI requester.

4. The EOI requester shall follow the procedures specified in Articles 37, 38, 39, 40, 41 and 42 of this Decree. The competent authority shall create and delegate a specialized account to the EOI requester to post information and invite EOIs on VNEPS.

Article 37. Preparation for invitation for EOIs

Before invitation for EOIs, the competent authority shall publish the project information on VNEPS in one of the following two cases:

1. If the project is subject to investment guideline approval, the competent authority shall post the decision on investment guideline approval.

2. If the project is not subject to investment guideline approval, based on the project proposal prepared and approved in accordance with Article 10 of this Decree, the competent authority shall post the information specified in Points b, c, d and e, Clause 2, Article 47 of the Law on Bidding.

Article 38. Preparation of and approval for EOI request

1. EOI request is prepared based on Article 12 of this Decree.

2. Contents of the EOI request include:

a) Instructions to investors;

b) Requirements pertaining to investor eligibility in accordance with Article 5 of the Law on Bidding;

c) Methods and criteria for preliminary assessment of the investor's capacity and experience as prescribed in Clauses 3 and 4 of this Article;

d) EOI forms;

dd) Information and requirements for implementing investment projects;

e) Other related contents (if any).

3. The pass and fail method is applied to make a preliminary assessment of the investor's capacity and experience.  The investor is assessed as meeting the preliminary requirements for capacity and experience when all standards are assessed as passed.

4. Preliminary assessment criteria for investor’s capacity and experience, including:

a) Equity requirements as prescribed in Point a, Clause 1, Article 45 of this Decree;

b) The investor's experience in implementing similar projects as prescribed in Points a and b, Clause 2, Clause 3 and Clause 4, Article 45 of this Decree.

5. In case the project applies domestic invitation for expression of interests but needs to promote the use of advanced technology, techniques, and international management experience, the EOI request can apply Clause 5, Article 45. of this Decree.

6. The EOI request only states the requirements for the purpose of selecting an investor that meets the eligibility, capacity, and experience in project implementation; and may not state any conditions to limit the participation of investors or to create an advantage for one or several investors, causing unfair competition.

7. The EOI request is prepared and approved at the same time during the process of deciding on investment guideline approval (if the project is subject to investment guideline approval according to the law on investment) or during the preparation of and approval for investment project information (if the project is not subject to investment guideline approval) or after these decisions are approved by competent authorities.

Article 39. EOI invitation, issuance and clarification of EOI request; extension of the deadline for submitting project registration application

1. The EOI invitation is posted on VNEPS in accordance with Clause 2, Article 8 of the Law on Bidding.  For projects subject to international competitive bidding as prescribed in Clause 2, Article 36 of the Law on Bidding, the EOI invitation must be posted in English and Vietnamese on VNEPS and on the websites of relevant Ministries, the Provincial People's Committee (if any), or an English-language newspaper published in Vietnam.

2. The EOI request is published on VNEPS.  The EOI requester posts a complete file of EOI request free of charge on VNEPS.

3. In case of modifications of the EOI request after issuance, the EOI requester must post on the VNEPS the modification decision enclosed with the detailed modifications of the EOI request and the modified EOI request.  The posting of the modified decision on VNEPS is done at least 10 days before the deadline for submitting project registration application.

4. Clarification of EOI request:

a) In case it is necessary to clarify the EOI request, the investor shall send a request for clarification to the EOI requester on VNEPS at least 5 working days before the deadline for submitting project registration application.

b) The clarification of the EOI request must be posted on VNEPS at least 2 working days before the deadline for submitting project registration application;

c) The clarification of the EOI request must not be contrary to the content of EOI request which was posted on VNEPS.  In case the clarifications of the EOI request leads to the need to modify the EOI request, the modifications of the EOI request shall comply with Clause 3 of this Article;

d) The decision on modifications or written clarification of the EOI request is an integral part of the EOI request.

5. In case it is necessary to extend the deadline for submitting the project registration application, the EOI requester shall post a notice of extension along with the decision to approve the extension on VNEPS.  The notice of extension must clearly state the reason for the extension, new deadline for bid submission.

Article 40. Preparation, submission, receipt, modification, and withdrawal of project registration application

1. Investors prepare and submit project registration applications on VNEPS according to the requirements of the EOI request.  The duration to prepare a project registration application is at least 30 days from the first date of issuing EOI request to the bid submission deadline.

2. The project registration application of the investor includes: project registration application form; documents on the investor's legal status, capacity and experience; other relevant documents (if any).

3. The modification and withdrawal of the project registration application can only be made before the deadline for submitting the project registration application.

Article 41. Bid opening and evaluation of project registration application

1. The bid opening is carried out on VNEPS and begins within 2 hours from the deadline for submitting the project registration application.

2. The EOI requester organizes the evaluation of the project registration applications submitted by the investors. Investors are responsible for clarifying the project registration application at the request of the EOI requester or by themselves if they found that their submitted project registration application is missing documents regarding their certain capacity and experience. All clarification requests and clarification documents from investors are made on VNEPS.

Article 42. Submission of, approval for, and publication of the results of invitation for EOIs

1. Based on the results of evaluating the project registration application, the EOI requester proposes the competent person to review and approve the results of the invitation for EOIs and organize investor selection as follows:

a) In case there are two or more investors that meet the requirements of EOI request, competitive bidding will be held to select the investor in accordance with Article 43 of this Decree;

b) In case there is only one investor registered and meets the requirements of EOI request or there are many investors registered but only one investor meets the requirements of EOI request, then that qualified investor will be approved in accordance with investment law;

c) In case there are no interested investors, or no investors meet the requirements of the EOI request, a written notice of completion of the invitation for EOIs will be issued.

2. For projects specified in Point a, Clause 1 of this Article, the competent person shall approve the investor selection progress timeline in accordance with Article 11 of this Decree, which shall decide the procuring entity, form and method of bidding for investor selection, time to start organizing the selection of investors to implement investment projects.  The form of bidding to select investors is determined according to the following regulations:

a) Domestic competitive bidding if no foreign investor submits a project registration application or no foreign investor meets the requirements of the EOI request as prescribed in Point dd, Clause 2, Article 11 of the Law on Bidding;

b) International competitive bidding if at least one foreign investor meets the requirements of EOI request.

3. For the case specified in Point c, Clause 1 of this Article, the competent person shall notify in writing of completion of the invitation for EOIs and consider carrying out one of the following two procedures:

a) Re-implement the procedure for inviting EOIs within the time limit decided by the competent person;

b) Review and edit EOI request but must ensure compliance with the decision on investment guideline approval or project information approval and re-implement the procedure for invitation for EOIs.

4. Based on the decision of the competent person specified in Clause 1 of this Article, the EOI requester shall post the results of invitation for EOIs and the investor selection progress timeline or notice of completion of the procedure for inviting EOIs on VNEPS.

Article 43. Investor selection procedures

The procedures for competitive bidding for investor selection comply with Sections 2 to 7, Chapter II or Chapter III of this Decree.