Chương III Nghị định 35/2021/NĐ-CP: Chuẩn bị dự án PPP

Chapter III

PREPARATION OF PPP PROJECTS

Section 1. PREPARATION, ASSESSMENT OF PRE-FEASIBILITY STUDY REPORTS AND DECISIONS ON INVESTMENT GUIDELINES OF PPP PROJECTS

Article 17. Preparation, assessment of pre-feasibility study reports

1. Pre-feasibility study reports shall be prepared in accordance with Clause 3 Article 14 of PPP Law and Form No. 01 in Appendix II hereof.

2. In case the project has elements that require assurance of national defense and security, protection of state secrets or special elements that need innovations in order to shorten the duration of construction of the work or infrastructure, achieve high energy-saving rates, ensure a high level of environmental safety according to environmental protection laws, the pre-feasibility study report must specify these elements.

3. The report on assessment of a pre-feasibility study report shall be prepared in accordance with Clause 2 Article 15 of PPP Law and Form No. 02 in Appendix II hereof.

4. In case the PPP project uses public investment capital, the authority and content of assessment of financing sources and financial capacity shall comply with Article 19 and Article 20 of this Decree.

5. The use of the following financing sources shall comply with regulations of the Government on financial mechanism of PPP projects:

a) Funds for regular expenditures for paying PPP project enterprises;

b) Funds from lawful sources for paying PPP project enterprises;

c) State budget reserve for paying the decrease in revenue.

Article 18. Time and documentation for assessment of investment guidelines of projects

1. The time for assessment of a pre-feasibility study report begins from the day on which the Assessment Board or the assessing unit receives adequate and valid documents as prescribed in Clause 2 of this Article or from the day on which the validation report is received from the counselor. To be specific:

a) If the decision on investment guidelines of the project is issued by the Prime Minister: not more than 45 days;

b) If the decision on investment guidelines is issued by the Minister, head of a central authority, another authority or provincial People’s Council: not more than 30 days.

2. 10 sets of the documents specified in Clause 1 Article 15 of PPP Law shall be sent to the Assessment Board or assessing unit; a competent authority may be requested to increase the number of documents where necessary.

Article 19. Authority to assess financing sources and capability to balance public investment capital in PPP projects

1. The Ministry of Planning and Investment shall preside over the assessment of financing sources and capability to balance investment capital of central government budget for:

a) PPP projects whose investment guidelines are decided by the National Assembly;

b) PPP projects whose investment guidelines are decided by the Prime Minister.

2. b) The Minister, head of a central authority or another authority shall assign the public investment authority to preside over the assessment of capability to balance investment capital for the project whose investment guidelines is decided by such authority.

3. b) The President of the People’s Committee of the province shall assign the public investment authority of the same province to preside over the assessment of capability to balance investment capital of:

b) Local government budget in case the investment guidelines of the PPP project is decided by the National Assembly or the Prime Minister;

b) The PPP project if its investment guidelines are decided by the provincial People’s Council.

4. In case a PPP project is funded by lawful sources of income of a public service provider, the head of the public service provider shall assign an affiliated unit to assess the capability to balance investment capital of these sources and send a report to the Assessment Board or assessing unit for consolidation.

Article 20. Contents of assessment of capability to balance public investment capital in PPP projects

1. Assessment of capability to balance public investment capital is part of the assessment of the PPP project’s pre-feasibility study report of the.

2. The PPP Project Assessment Board or the unit assigned to assess the PPP project’s pre-feasibility study report shall seek opinions from the authority assigned to assess the financing sources and capability to balance investment capital of the project during the assessment process.

3. Assessment of financing sources and capability to balance public investment capital n the PPP project includes assessment of conformity of:

a) Purposes of the capital;

b) Schedule for capital disbursement in the annual plan;

c) Financing sources and capability to balance investment capital in the total public investment capital in the medium-term public investment plan approved by National Assembly and the Prime Minister and assigned to Ministries, central authorities and local authorities in the medium term for execution of projects and limits of public investment capital in the later periods as prescribed by the Law on Public Investment; total public investment capital in the medium-term state budget plan and annual increase in state budget revenues (if any) decided by the provincial People’s Council;

d) The capital that has to be disbursed according to the contract in order to pay the PPP project enterprise in case the project is under a BTL or BLT contract which is expected to be executed in more than 02 consecutive medium terms of public investment.

4. In case a PPP project is funded by lawful sources of income of a public service provider, the assessing units shall assess the criteria specified in Point a and Point b Clause 3 of this Article.

Article 21. Decisions on investment guidelines of PPP projects

1. The contents of a decision on investment guidelines of a PPP project shall comply with Article 17 of PPP Law and Form No. 03 in Appendix II hereof.

2. The authority having the power to approve the decision on investment guidelines shall carry out investor selection by f for:

a) Projects applying high technologies on the list of prioritized high technologies prescribed by high technology laws;

b) Projects applying advanced, new, clean technologies on the list of technologies encouraged for transfer prescribed by high technology laws (hereinafter referred to as “projects applying new technologies”).

3. In case the PPP project has elements that require assurance of national defense and security, protection of state secrets or special elements that need innovations in order to shorten the duration of construction of the work or infrastructure, achieve high energy-saving rates, ensure a high level of environmental safety according to environmental protection laws, the decision on investment guidelines must specify these elements as the basis for survey investors’ interests according to Article 25 of this Decree.

4. Except for the cases specified in Points a, b and c Clause 3 Article 4 of PPP Law, the decision on investment guidelines of a PPP project that involves more than one province shall be issued as follows:

a) The People’s Committees of the provinces where the project is located shall submit a report to the People’s Council of the same provinces, which will consider approving the execution of the project. The report shall specify the project’s name, scale, location, type of PPP project contract, estimated total investment, state investment in the PPP project and funding from government budget of each province. on the basis of the written approval issued by the People’s Council, the People’s Committee of the same province shall reach an agreement with the relevant Ministry on assigning a local authority as competent authority;

b) The competent authority mentioned in Point a of this Clause shall organize the project preparation, propose issuance of the decision on investment guidelines according to Clause 2 Article 13 of PPP Law and the name of the competent authority according to Clause 3 Article 5 of PPP Law to the Prime Minister;

c) In case the funding for compensation, land clearance, assistance, relocation; construction of temporary works is provided by local government budget of each province, the People’s Committee of these provinces shall submit a report to the Prime Minister on establishment of component projects to be executed in each province in accordance with the Law on Public Investment.

5. For PPP projects that allow division of decrease in revenue, the decision on investment guidelines shall specify that this cost is covered by backup central or local government budget.

6. Time limits for approving the decision on investment guidelines from the day on which valid documents specified in Article 16 of PPP Law are fully received:

a) If the decision on investment is issued by the Prime Minister: not more than 20 days;

b) If the decision on investment guidelines is issued by the Minister, head of a central authority, another authority or provincial People’s Council: not more than 15 days.

7. For PPP projects funded by public investment capital, on the basis of the decision on investment guidelines approved by the competent authority, the public investment capital in the PPP project shall be aggregated with the medium-term public investment plan.

Article 22. Decisions on investment guidelines of PPP projects proposed by investors

1. The investor shall submit the written proposal of the PPP project to the competent authority prescribed in Clause 1 Article 5 of PPP Law. In case such a competent authority cannot be determined, the investor shall contact the local PPP investment authority for instructions. In case the competent authority still cannot be identified after contacting the local PPP investment authority, the investor shall contact the central PPP investment authority.

2. The written approval for the investor to prepare the pre-feasibility study report shall have the following contents:

a) Name of the investor assigned to prepare the pre-feasibility study report;

b) Deadline and location for submission of the project proposal; the presiding authority or unit shall receive the project proposal, submit the investment guidelines for assessment and approval;

c) Regulations that the investor incurs all the costs and risks in case the project proposal is rejected.

If the PPP project applies high technologies or new technologies (hereinafter referred to as “high-tech PPP project"), the written approval shall specify the cost of preparation of the pre-feasibility study report and what to do in case the selected investor is not the proposing investor. In this case, the cost of preparation of the pre-feasibility study report shall be paid by the selected investor to the proposing investor;

d) Responsibility, cooperation of relevant authorities in instructing the investor to prepare the pre-feasibility study report;

dd) Other relevant contents.

3. The accepted investor prescribed in Clause 2 of this Article shall prepare the pre-feasibility study report in accordance with Clause 1 and Clause 2 Article 17 of this Decree.

4. The project proposed by the investor shall be assessed and have a decision on investment guidelines issued in accordance with Clause 2 Article 27 of PPP law, Clause 3 and Clause 4 Article 17, Articles 18, 19, 20 and 21 of this Decree.

5. In case the investor proposes to use state capital in the PPP project, the competent authority shall assign an authority or unit mentioned in Point b Clause 2 of this Article to instruct the investors to include the use of state capital in the pre-feasibility study report as the basis for assessment of financing sources and capability to balance investment capital as prescribed in Clause 4 and Clause 5 Article 17 of this Decree.

Article 23. PPP projects with works subject to architectural plan competition

1. In case the PPP project has a work subject to architectural plan competition as prescribed by architecture laws:

a) The pre-feasibility study report must describe the legality, necessity, selection method and relevant contents of the competition as the basis for issuance of the decision on investment guidelines;

b) The costs of architectural plan competition shall be determined in accordance with applicable regulations of the Ministry of Construction on projects funded by state budget and included in the project’s total investment. In case the project is proposed by the investor, the investor shall be responsible for these costs.

2. After the decision on investment guidelines is issued, The competent authority shall carry out the competition in accordance with architecture laws:

Section 2. PREPARATION, ASSESSMENT OF FEASIBILITY STUDY REPORTS, APPROVAL FOR PPP PROJECTS

Article 24. Preparation, assessment of feasibility study reports

1. Feasibility study reports shall be prepared in accordance with Clause 2 Article 19 of PPP Law and Form No. 01 in Appendix III hereof.

2. In the case specified in Point a Clause 5 Article 70 of PPP Law, the feasibility study report shall determine sub-projects in the same manner as determination of contract packages as prescribed by regulations of law on construction and bidding. During the construction process, the infrastructure and selection of contractors for the sub-projects shall comply with regulations on contractor selection issued by the project management enterprise according to Article 55 of PPP Law.

3. The report on assessment of the feasibility study reports shall be prepared in accordance with Clause 2 Article 20 of PPP Law and Form No. 02 in Appendix III hereof.

Article 25. Survey of interest of investors in PPP projects

1. During the preparation of the feasibility study report of a PPP project, the competent authority shall survey the interest of investors and lenders (if any), except PPP projects approved by the Prime Minister for investor appointment as prescribed in Clause 2 Article 39 of PPP Law. The survey shall be carried out after the investor completes and sends the draft feasibility study report to the competent authority.

2. Procedures for survey of interest of investors in a PPP project:

a) The competent authority uploads the survey notice in both English and Vietnamese onto the VNEPS and the website of the Ministry, central authority, other authority or the People’s Committee of the province; the notice shall  be written in Vietnamese for the economic sectors and business lines with prohibited market access prescribed by investment laws, projects subject to requirements concerning national defense, security and state secrets prescribed in Point a and Point b Clause 3 Article 31 of PPP Law;

b) Interested investors apply for project execution on VNEPS. Before the deadline for submission of the expression of interest (EOI), the competent authority may hold a convention to provide information about the project for investors;

c) The interest survey result is the basis for the competent authority to decide whether to apply pre-qualification, selection of domestic or international investors. Before approving the project, the preparing unit, if necessary, shall request the competent authority to consider permitting pre-qualification as prescribed in Clause 2 Article 28 of PPP Law, determine the name of the procuring entity and pre-qualification time.

3. Except for the projects specified in Clause 4 of this Article, investors’ interest survey shall be carried out in accordance with Clause 2 of this Article and Form No. 01 in Appendix IV hereof. The preparing unit (or the authority that receives the project proposal as the case may be) shall determine the number of investors that submit the EOI as the basis for deciding the investor selection method prescribed in Clause 2 Article 34 of this Decree.

4. In case the PPP project has special elements that need innovations in order to shorten the duration of construction of the work or infrastructure, achieve high energy-saving rates, ensure a high level of environmental safety according to environmental protection laws, the survey shall be carried out following the procedures specified in Clause 2 of this Article and Form No. 02 in Appendix IV hereof. The preparing or receiving unit shall assess investors' EOI responses in order to make a short list and decide on the investor selection method as prescribed in Point a Clause 3 r 34 of this Decree.

5. From the day on which the survey notice is posted on VNEPS as prescribed in Point a Clause 3 of this Article, the time limit for investors and lenders (if any) shall be that specified in the notice, which must be:

a) At least 30 days for the projects specified in Clause 3 of this Article;

b) At least 45 days for the projects specified in Clause 4 of this Article.

Article 26. Time and documentation for assessment of feasibility study reports

1. The time for assessment of a feasibility study report begins from the day on which the Assessment Board or the assessing unit receives adequate and valid documents as prescribed in Clause 2 of this Article or from the day on which the validation report is received from the counselor. To be specific:

a) If the project is approved by the Prime Minister: not more than 90 days;

b) If the project is approved by the Minister, head of a central authority, another authority or provincial People’s Council: not more than 60 days.

2. 10 sets of the documents specified in Clause 1 Article 20 of PPP Law shall be sent to the Assessment Board or assessing unit; a competent authority may be requested to increase the number of documents where necessary.

Article 27. Approving PPP projects

1. The contents of a decision on investment guidelines of a PPP project shall comply with Article 23 of PPP Law and Form No. 03 in Appendix III hereof.

2. Time limit for approving a PPP project from the receipt of satisfactory documents prescribed in Article 22 of PPP Law:

a) If the project is approved by the Prime Minister: not more than 20 days;

b) If the project is approved by the Minister, head of a central authority, another authority or provincial People’s Council: not more than 15 days.

3. For high-tech PPP projects:

a) After the investor selection result is approved, the competent authority shall assign the selected investor to prepare the feasibility study report as prescribed in Clause 1 Article 24 of this Decree. In case the project uses public investment capital as state assistance in construction and infrastructure development, the feasibility study report shall specify the method for management and use of this capital in accordance with Point b Clause 5 Article 70 of PPP Law;

b) There shall be a written agreement between the competent authority and the investor that prepares the feasibility study report mentioned in Point a of this Clause;

c) The written agreement shall have the following contents: purposes; requirements; costs of preparation of the feasibility study report; cost of hiring independent counselors to validate the feasibility study report; establishment of the project management enterprise; responsibility of the project management enterprise for preparation of the feasibility study report and rules for settlement of the costs of preparation of the feasibility study report in case it is not approved or negotiation and contract conclusion is not carried out;

d) The feasibility study report prepared by the investor shall be assessed in accordance with Clause 3 Article 24 and Article 26 of this Decree; approved in accordance with Articles 12, 22 and 23 of PPP Law, Clause 1 and Clause 2 of this Article.

Article 28. Approving PPP projects proposed by investors

1. After the decision on investment guidelines is issued, the competent authority shall assign the investor to prepare the feasibility study report in accordance with Clause 1 Article 24 of this Decree, except high-tech PPP projects.

2. b) There shall be a written agreement between the competent authority and the investor that prepares the feasibility study report mentioned in Clause 1 of this Article. The agreement shall have the following contents: purposes, requirements; costs of preparation of the feasibility study report; costs of hiring independent counselors to validate the report and rules for settlement in case:

a) The feasibility study report is not approved or the investor that executes the project cannot be selected, in which case the investor shall bear all risks and costs;

b) The proposing investor is not selected, in which case the costs of preparation of the pre-feasibility study report and feasibility study report shall be returned to the proposing investor.

3. The feasibility study report prepared by the investor shall be assessed in accordance with Point b Clause 3 Article 27 of PPP Law, Clause 3 Article 24 and Article 26 of this Decree.

4. The project proposed by the investor shall be approved in accordance with Point c Clause 3 Article 27 of PPP Law, Clause 1 and Clause 2 Article 27 of this Decree.

5. The selected investor shall reimburse the costs of preparation of the pre-feasibility study report and feasibility study report in accordance with Clause 6 Article 27 of PPP Law and Point b Clause 2 of this Article before concluding the PPP project contract.