Chapter V
CONFIRMATION OF COMPLETION, TRANSFER OF CONSTRUCTION WORKS AND INFRASTRUCTURE SYSTEM, TERMINATION OF PPP PROJECT CONTRACT
Section 1. CONFIRMATION OF COMPLETION, TRANSFER OF CONSTRUCTION WORKS AND INFRASTRUCTURE SYSTEM
Article 76. Confirmation of completion of construction works and infrastructure system
1. After the construction is completed, the project management enterprise shall submit an application for confirmation of construction works and infrastructure system. An application shall include:
a) A written request for inspection and confirmation of completion of construction works and infrastructure system;
b) A written acceptance notice issued by the competent authority as prescribed by construction law;
c) The acceptance notice for work items, written confirmation of completed construction works of sub-projects funded by public investment capital prescribed in Point a Clause 5 Article 70 of PPP Law (if any) issued by the contract-signing authority.
2. In case the project is divided into multiple stages, the documents mentioned in Clause 1 of this Article shall be made separately for each stage.
3. Within 30 days from the day on which adequate documents specified in Clause 1 of this Article are received, the contract-signing authority shall issue the confirmation to the PPP project enterprise. In case of questionable quality of construction works and infrastructure system, the contract-signing authority may hire a consultant to assist in quality inspection as prescribed in Clause 3 Article 59 of PPP Law.
4. If the PPP project has sub-projects funded by public investment capital as prescribed in Point a Clause 5 Article 70 of PPP Law, the contract-signing authority shall pay up to 50% of the estimated value of the sub-projects when the PPP project enterprise completes the works thereof. The remainder shall be paid when the completion of construction works is confirmed as prescribed in Clause 3 of this Article.
Article 77. Rules, conditions for transfer, receipt of construction works and infrastructure systems of PPP projects
1. In case the PPP project contract is terminated ahead of schedules as prescribed in Article 81 of this Decree, the construction works and infrastructure system of the PPP project
a) The construction of works and infrastructure system shall be conformable with construction regulations and standards, relevant laws and regulations of the project contract;
b) The construction works and infrastructure system of the PPP project is not pledged, put up as collateral or subject to any ownership restriction;
c) the construction works and infrastructure system have full functions, necessary capacity and quality according to technical and quality requirements specified in the investment activities at the time of transfer, and can continue to be used as prescribed by law;
d) The transfer, receipt of construction works and infrastructure system must not affect the continuity and quality of public services and products provision.
2. The contract-signing authority shall request the competent authority to assign a unit that has adequate capacity and resources to operate and maintain the construction works and infrastructure system; adhere to the transfer schedule prescribed by law and the project contract without affecting the continuity and quality of public services and products provision.
Article 78. Procedures for transfer and receipt of construction works and infrastructure system
1. In case the PPP project is executed under a BOT or BLT contract:
a) At least 01 year before the termination date of the PPP project contract specified in therein, the PPP project enterprise shall publish the transfer of construction works and infrastructure system, procedures and time limit for contract finalization, payment of debts on a newspaper; send the application for transfer of construction works and infrastructure system prescribed in Clause 1 Article 79 of this Decree to the contract-signing authority;
b) Within 30 days from the receipt of the application for transfer, the contract-signing authority shall take charge and cooperate with the authority specialized in property management, the finance authority and relevant authorities (if necessary) in:
- Organizing inspection of quality, value, conditions of the construction works and infrastructure system under the terms and rules of the project contract.
- Preparing a list of transferred property.
- Preparing a record on damage to the property (if any) in order to request the project management enterprise to make repairs and maintenance of the property.
- If the construction works and infrastructure system satisfy the requirements, the contract-signing authority shall sign the property transfer record.
- Requesting the competent authority to assign a unit to operate and maintain the construction works and infrastructure system as prescribed in Clause 4 Article 80 of this Article;
c) The contract-signing authority shall request SAV to audit the value of property of the PPP project as the basis for increasing property as prescribed by regulations of law on management and use of public property.
d) At least 30 days before the termination date written in the PPP project contract, the contract-signing authority shall prepare documents and request the competent authority to issue a decision on establishment of public ownership; prepare a plan for property settlement and submit it to the competent authority for approval in accordance with regulations of law on management and use of public property;
dd) The assigned unit shall operate and maintain the construction works and infrastructure system as per regulations.
2. In case the PPP project is executed under a BTO or BTL contract:
a) If the requirements specified in Article 76 of this Decree are fully satisfied the PPP project enterprise shall send the application for transfer of construction works and infrastructure system to the contract-signing authority;
b) The contract-signing authority shall sign the property transfer record, prepare documents and request the competent authority to issue a decision on establishment of public ownership in accordance with regulations of law on management and use of public property;
c) The PPP project enterprise shall manage and operate the construction works and infrastructure system in accordance with the project contract;
d) At least 01 year before the termination date of the PPP project contract specified in therein, the PPP project enterprise shall publish the transfer of construction works and infrastructure system, time limit for contract finalization, payment of debts on a newspaper; send the application for transfer of construction works and infrastructure system to the contract-signing authority;
dd) Within 30 days from the receipt of the application for transfer, the contract-signing authority shall take charge and cooperate with the authority specialized in property management, the finance authority and relevant authorities (if necessary) in performing the tasks specified in Point b and Point c Clause 1 of this Article;
e) At least 30 days before the termination date of the PPP project contract specified in therein, the contract-signing authority shall cooperate with the unit assigned to operate and maintain the construction works and infrastructure system in performing the tasks specified in Point d and Point dd Clause 1 of this Article.
Article 79. Procedures for transfer and receipt of construction works and infrastructure system
1. The application for transfer of construction works and infrastructure system of the PPP project executed under a BOT or BLT contract consists of:
a) The written request for transfer of construction works and infrastructure system;
b) The report on fulfillment of the rules and conditions specified in Article 77 of this Decree;
c) Other documents specified in the contract and written agreement prescribed in Point a Clause 1 Article 78 of this Decree.
2. If the PPP project is executed under a BTO or BTL contract, the PPP project enterprise shall include the report on fulfillment of the rules and conditions specified in Article 77 of this Decree in the application for confirmation of completed construction works and infrastructure system.
Section 2. TERMINATION OF PPP PROJECT CONTRACT
Article 80. Termination of PPP project contract on schedule
1. The contract-signing authority, the investor, the PPP project enterprise shall terminate the PPP project contract on the date specified in the contract as the basis for contract finalization.
2. At least 01 year before the termination date written in the contract, the contract-signing authority, the investor, the PPP project enterprise shall:
a) Confirm the fulfilled obligations and responsibility of the parties to the tasks that need to be completed in 01 year;
b) Develop a mechanism for cooperation in completing procedures for transfer of construction works and infrastructure system as prescribed in Article 78 of this Decree (if any); establish rules and conditions for transfer of cleared land (if the project is executed under a BOO contract); conditions for transfer of construction works and infrastructure system (if the project is executed under an O&M contract;
c) Prepare the plan for transfer of technology, personnel, documents about the construction works and infrastructure system serving operation thereof to the contract-signing authority or the unit assigned to operate and maintain construction works and infrastructure system;
d) Agree on the contents that ensure the continuity and quality of public services and products provision, including the PPP project enterprise maintaining provision of public services and products until the assigned unit mentioned in Clause 4 of this Article receives the construction works and infrastructure system;
dd) Other necessary tasks specified in the project contract.
3. The agreement on contents of the tasks specified in Clause 2 of this Article shall be made into a written document signed by the parties.
4. On the basis of the agreement mentioned in Clause 2 of this Article, the contract-signing authority shall submit a report to the competent authority with the following contents:
a) Assigning a unit to receive the construction works and infrastructure system for operation and maintenance; ensuring fulfillment of the conditions specified in Clause 2 Article 77 of this Decree.
b) Requesting the assigned unit mentioned in Point a of this Clause to prepare funds and other necessary resources to receive, operate and maintain the construction works and infrastructure system.
Article 81. Premature termination of PPP project contract
1. Procedures for premature termination of PPP project contract:
a) A party to the contract submits a written request for premature termination of the PPP project contract which must specify the reasons for premature termination;
b) The parties reach an agreement the conditions for premature termination of the PPP project contract;
c) The parties complete the procedures for contract finalization as prescribed in Article 68 of PPP Law.
2. The agreement mentioned in Point b Clause 1 of this Article shall be made into a written document with the following primary contents:
a) Reasons for premature termination, which must be conformable with Clause 2 Article 52 of PPP Law;
b) Unfulfilled obligations of the parties, including the obligation to transfer the construction works and infrastructure system;
c) Tasks that need to be completed to ensure continuity and quality of public services and products provision after contract termination;
d) Civil responsibility limits and exemption of one of the parties;
dd) The time needed for the parties to implement remedial measures; estimated cost of settlement of the prematurely terminated contract; selection of an audit organization (if necessary);
e) Other necessary contents as prescribed by civil laws and the PPP project contract.
3. Either party has the right to unilaterally terminate the PPP project contract prematurely when the other party serious violate the contract as prescribed in Point d Clause 2 Article 52 of PPP Law.
4. When a PPP project contract is terminated prematurely and a substitute investor has to be selected to sign a new contract, the contract-signing authority shall inform the lender of the appointment of the substitute investor. The appointment of the substitute investor shall comply with Article 67 and Article 68 of this Decree.
5. The contract-signing authority shall ensure the safety and protect the construction works and infrastructure system from degradation, or organize the operation of the construction works and infrastructure system in order to ensure continuity of public services and products.
Article 82. Costs of settlement in case of premature termination of contract
1. The PPP project contract shall specify the formula or method for calculation of costs of settlement in case of premature termination of the contract as prescribed in Clause 2 Article 52 of PPP Law.
2. In case of the contract is prematurely terminated because the contract-signing authority seriously violates the obligations to execute the contract, compensations shall be paid to the investor and the PPP project enterprise as follows:
a) Establishment of the project funded by public investment capital. Procedures for approving the decision on investment guidelines and investment decision shall comply with the Law on Public Investment;
b) Use of backup public investment capital;
c) Other lawful sources of financing.
3. The procedures and funding for purchase of the PPP project enterprise shall comply with regulations of law on management and use of state capital for business operation of enterprises.
4. After the parties reach an agreement on the conditions for premature termination of the project contract, the contract-signing authority shall request the competent authority to consider deciding the cases in which the settlement costs have to be paid; method, values and sources of payment to the investor and the project management enterprise if that is the liability of the State.
Tìm kiếm
Nghị định 35/2021/NĐ-CP (Bản Word)
Nghị định 35/2021/NĐ-CP (Bản Pdf)