Decree No. 71/2025/ND-CP dated March 28, 2025 on amendments to Decree No. 35/2021/ND-CP on elaboration of some articles of the Law on Public - Private Partnership Investment
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GOVERNMENT OF VIETNAM |
THE SOCIALIST REPUBLIC OF VIETNAM |
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No. 71/2025/ND-CP |
Hanoi, March 28, 2025 |
DECREE
ON AMENDMENTS TO DECREE NO. 35/2021/ND-CP DATED MARCH 29, 2021 OF THE GOVERNMENT ON ELABORATION OF SOME ARTICLES OF THE LAW ON PUBLIC - PRIVATE PARTNERSHIP INVESTMENT
Pursuant to the Law on Government Organization dated February 18, 2025;
Pursuant to the Law on Public – Private Partnership Investment dated June 18, 2020;
Pursuant to Law on amendments to Law on Planning, Law on Investment, Law on Public-Private Partnership Investment, and Law on Bidding dated November 29, 2024;
At the request of the Minister of Finance;
The Government promulgates the Decree on amendments to Decree No. 35/2021/ND-CP dated MARCH 29, 2021 of the Government on elaboration of some articles of the Law on Public - Private Partnership Investment
Article 1. Amendments to Decree No. 35/2021/ND-CP dated MARCH 29, 2021 of the Government on elaboration of some articles of the Law on Public - Private Partnership Investment
1. Amendments to Article 1:
“1. This Decree elaborates the Law on Public - Private Partnership Investment (hereinafter referred to as “PPP Law”) regarding PPP Project Appraisal Boards; preparations for PPP projects, projects under BT contract without payment requirements; selection of investors executing PPP projects; confirmation of completion and transfer of works and infrastructure; termination of PPP project contracts; handling of various situations and violations during PPP investment.
2. This Decree does not apply to projects under BT contract for which payment are made using state budget-derived funding or unoccupied land areas.”.
2. Amendments to clause 1 and clause 2 Article 8:
a) Amendments to clause 1:
“1. The Interdisciplinary Appraisal Board of each project shall be established under decision of the Prime Minister at the request of the Ministry of Finance, or the Ministry of Finance as authorized by the Prime Minister.”;
b) Amendments to clause 2:
“2. An Interdisciplinary Appraisal Board shall have a President, Vice Presidents and other members. The President of the Interdisciplinary Appraisal Board shall be the Minister of Finance. The Vice Presidents shall be the heads of relevant ministries and authorities. Other members shall be representatives of relevant ministries and authorities.”.
3. Amendments to some clauses of Article 16:
a) Addition of clause 2a after clause 2:
“2a. If the Appraisal Board is not established, the appraisal costs of the appraising unit include costs of meeting, stationery, site inspection (if any) according to corresponding norm prescribed in point b clause 2 of this Article. The appraisal costs shall be covered by the public investment funds and other lawful financing sources. For projects under BT contract without payment requirements, the appraisal costs of appraisal of feasibility study reports and draft contracts shall be covered by the regular expenditures of the appraising unit.”;
b) Amendments to clause 3:
“3. The costs prescribed in Clause 1 and Clause 2 of this Article shall be covered by the public investment funds, other lawful financing sources and paid by the unit that prepares the PPP project or the authority that receives the project proposal in accordance with the counseling contract and at the request of the standing executive body of the Appraisal Board.”.
4. Addition of clauses 2a and 2b after clause 2 Article 17:
“2a. The project executed in areas with socio-economic difficulties or extreme socio-economic difficulties prescribed in point b clause 2a Article 69 of PPP Law shall be determined based on the list of investment incentives for different areas in accordance with laws on investment.
2b. The project on road prescribed in clause 2a of this Article is allowed to apply the proportion of state capital participating in a PPP project between 50% and 70% of the project's preliminarily estimated total investment if it satisfies the following requirements:
a) It is implemented in at least 01 area with socio-economic difficulties or extreme socio-economic difficulties;
b) It needs to use an amount of state capital higher than that prescribed in clause 2 Article 69 of PPP Law due to transport flow, rates of prices, charges of products, expected services, expected revenues, the time for payback or gaining profits of investors, or other aspects of the financial plan leading to the financial infeasibility of the project.”.
5. Amendments to clause 1 Article 18:
“1. The time for appraisal of a pre-feasibility study report begins from the establishment of the Appraisal Board or the appraising 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) For the decision on investment guidelines of the project is issued by the Prime Minister: within 30 days;
b) For the decision on investment guidelines is issued by the Minister, head of a central authority, another authority, provincial People’s Council, provincial People’s Committee: within 14 days;
c) For projects for which only construction investment economic-technical report is required: within 10 days.
If the project requires faster progress, the President of the Appraisal Board shall decide the appropriate appraisal time.".
6. Amendments to some clauses of Article 21:
a) Amendments to clause 4:
“4. For PPP projects executed in two or more provinces as prescribed in point b clause 4 or point b clause 4a Article 12 of PPP Law, the Prime Minister shall delegate to the Minister of relevant Ministry to reach an agreement on assigning a local authority as competent authority. The decision on investment guidelines shall be implemented as follows:
a) The provincial People’s Committee where the project is carried out shall discuss and reach an agreement on the following contents for implementation of the project: 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.
b) For projects under jurisdiction of the provincial People’s Council as prescribed in point b clause 4 Article 12 of PPP Law, the provincial People’s Committee where the project is carried out shall report to the provincial People’s Council for consideration and approval of contents prescribed in point a of this clause.
Based on the approval of the provincial People’s Council, the provincial People’s Committee where the project is carried out shall reach an agreement with the relevant Ministry on assigning a local authority as competent authority;
c) For projects under jurisdiction of the provincial People’s Committee as prescribed in point b clause 4a Article 12 of PPP Law, the provincial People’s Committee where the project is carried out shall reach an agreement with the relevant Ministry on assigning a local authority as competent authority. In case the PPP project requires use of state capital, the provincial People’s Committee shall report to the provincial People’s Council before reaching agreement with the relevant Ministry on assigning a local authority as competent authority;
d) The provincial People’s Committee assigned by the relevant Ministry as the competent authority of the project as prescribed in point b and point c of this clause shall prepare the project, report to the competent authority for decision on investment guidelines as prescribed in point b clause 4 or point b clause 4a Article 12 of PPP Law;
dd) 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 provincial People’s Councils on establishment of component projects and contents prescribed in points b and c of this clause to be executed in each province in accordance with the Law on Public Investment.”;
b) Addition of point c clause 6:
“c) For the decision on investment guidelines of the project is issued by the provincial People’s Committee: within 10 days; for projects for which only construction investment economic-technical report is required: within 05 days.”.
7. Amendments to some clauses of Article 24:
a) Amendments to clause 1:
“1. The unit that prepares the PPP project shall make a feasibility study report of a PPP project in accordance with clause 2 Article 19 of PPP Law and Form No. 01 in Appendix III attached to this Decree, except for the cases in Article 28a of this Decree.";
b) Amendments to clause 3:
“3. The Appraisal Boards at different levels or units affiliated to ministries, local authorities, other authorities, provincial People’s Committees assigned to appraisal of feasibility study reports for PPP projects shall make appraisal of feasibility study reports in accordance with clause 2 Article 20 of PPP Law and Form No. 02 in Appendix III attached to this Circular.
For PPP projects for which only construction investment economic-technical report is required, the appraisal of construction investment economic-technical report shall be in accordance with clause 2 Article 20 of PPP Law.”;
c) Addition of clause 4:
“4. For the project under O&M contract and PPP project whose total investment are equivalent to that of Group B or C projects as prescribed by the Law on public investment and which are not funded by the State capital, the formulation and appraisal of feasibility study reports shall be in accordance with clauses 2 and 3 Article 19, Article 20 of PPP Law, clauses 1, 2 and 3 of this Article to ensure the requirements for selection of PPP projects prescribed in clause 1 Article 14 of PPP Law.”.
8. Amendments to clause 1 Article 25:
“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 for PPP projects applying investor appointment as prescribed in clause 2 Article 39 of PPP Law, projects applying special investor selection process and projects under BT contract without payment requirements. The survey for projects prescribed in clause 2 Article 39 of PPP Law or projects proposed by the investor shall be carried out after the investor completes and sends the draft feasibility study report to the competent authority.”.
9. Amendments to clause 1 Article 26:
“1. The time for appraisal of a feasibility study report begins from the day on which the Appraisal Board or the appraising 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: within 30 days;
b) If the project is approved by the Minister, head of a central authority, another authority or the President of provincial People’s Council: within 14 days. For projects prescribed in clauses 2a, 2b and 2c, Article 11 of PPP Law: within 10 days.
If the project requires faster progress, the President of the Appraisal Board shall decide the appropriate appraisal time.".
10. Amendments to some clauses of Article 28:
a) Addition of clause 1a after clause 1:
“1a. For the project under O&M contract and PPP contract whose total investment are equivalent to that of Group B or C projects as prescribed by the Law on public investment and which are not funded by the State capital:
a) The investor shall submit a proposal on the PPP project in person or by post to the competent authority prescribed in clause 1 Article 5 of PPP Law;
b) The competent authority shall consider and respond in writing to approve or disapprove the investor's submission of the feasibility study report. If approval, the competent authority shall assign the investor to make the feasibility study report in accordance with clause 1 Article 24 of this Decree. The application for appraisal of feasibility study report for the project includes the documents prescribed in points a, b, c and dd, clause 1, Article 20 of PPP Law;
c) The PPP project proposed by the investor shall satisfy all requirements prescribed in Article 26 of PPP Law.”;
b) Amendments to the first paragraph of clause 2:
“2. There shall be a written agreement between the competent authority and the investor that prepares the feasibility study report mentioned in clauses 1 and 1a 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 the following cases:;
c) Amendments to clause 3:
“3. The appraisal of feasibility study report shall be in accordance with point b clause 3 Article 27 of PPP Law, clause 3 Article 24 and Article 26 of this Decree. The authorities or entities in charge shall receive the feasibility study report from the investor, submit the appraisal of feasibility study report and submit the decision on approval of PPP project.”.
11. Addition of Article 28a after Article 28:
“Article 28a. Formulation, appraisal of feasibility study reports, approval of projects under BT contract without payment requirements proposed by the investors
1. Projects under BT contract without payment requirements proposed by the investors shall satisfy the following requirements:
a) Conforming to the requirements for selection of projects for PPP investment in accordance with points a, b and c, clause 1, Article 14 of PPP Law;
b) Ensuring that a PPP project is not duplicated with other PPP projects for which competent authorities have prepared pre-feasibility study reports, feasibility study reports, or approved of other investors preparing pre-feasibility study reports, feasibility study reports;
c) Conforming to relevant plannings in accordance with laws on planning.
2. Procedures for proposal, appraisal, approval of projects:
a) The investor shall submit a proposal on the PPP project in person or by post to the competent authority as prescribed in clause 1 Article 5 of PPP Law;
b) The competent authority shall consider and respond in writing to approve or disapprove the investor's submission of the feasibility study report and draft contract. The written approval includes the following contents: name of the investor, deadline and location for submission of the project proposal; the presiding authority or unit receiving the project proposal, submitting, appraising, approving the project; cooperation of organizations or units affiliated to competent authorities and other relevant contents; clear reasons in case of denial;
c) In case of being approved by a competent authority, the investor prepares a project proposal including: draft feasibility study report in accordance with laws on construction and other relevant regulations, draft contract, documents on the investor’s legal status, investor’s financial capacity to arrange funding sources for the project, and submits to the competent authority.
In case of being denied, the investor shall incur all the costs and risks;
d) The competent authority shall appraise the project proposal as prescribed in clause 2 Article 20 of PPP Law. The number of documents for appraisal is in accordance with clause 2 Article 26 of this Decree;
dd) The competent authority shall approve the project attached with draft contract in accordance with Article 23 of PPP Law and Form No. 03 in Appendix III attached to this Decree;
e) For projects for which only construction investment economic-technical report is required, the investor shall submit construction investment economic-technical report attached with the written proposal of the project to the competent authority in accordance with point a of this clause. If approval, the competent authority shall appraise, approve, implement the project in accordance with laws on construction without complying with regulations in points b, c, d and dd of this clause.
3. The modification of PPP projects shall be in accordance with points a, b and c, clause 1 and clause 4 Article 24 of PPP Law.
4. The costs of preparation of the feasibility study report shall be included in the total investment of the project.”.
12. Amendments to some clauses of Article 31:
a) Amendments to clause 6:
“6. For projects that apply competitive bidding competitive negotiation as prescribed in clause 1 Article 38 of PPP Law:
a) If the decision on investment guidelines of the project is issued by the National Assembly, Prime Minister, the time limit for preparation for the bid is 45 days (in case of selection of domestic investors) or 60 days (in case of selection of international investors) from the first day on which bidding documents are issued to the bid closing date;
b) For projects whose total investment are equivalent to that of Group A in accordance with laws on public investment (except for projects prescribed in point a of this clause), the time limit for preparation for the bid is 30 days (in case of selection of domestic investors) or 45 days (in case of selection of international investors) from the first day on which bidding documents are issued to the bid closing date;
c) For projects whose total investment are equivalent to that of Group B and C in accordance with laws on public investment, the time limit for preparation for the bid is 20 days from the first day on which bidding documents are issued to the bid closing date;
d) For projects for which only construction investment economic-technical report is required, the time limit for preparation for the bid is 10 days from the first day on which bidding documents are issued to the bid closing date.”.
b) Amendments to point b clause 7:
"b) The time limit for preparation for the bid is in accordance with clause 6 of this Article.”.
c) Amendments to clause 8:
“8. For projects that apply investor appointment in accordance with point a clause 1 Article 39 of PPP Law, the time limit for preparation for the bid is 30 days (in case of selection of domestic investors) or 45 days (in case of selection of international investors) from the first day on which bidding documents are issued to the bid closing date.”.
13. Amendments to clause 6 and clause 7 Article 32:
“6. Fees for investor selection on VNEPS shall be in accordance with point a clause 11 Article 12 of Decree No. 24/2024/ND-CP dated February 27, 2024 of the Government on elaboration of and measures for implementation of the Bidding Law regarding contractor selection. The fees for submission of bids, fees for the successful investors, and fees for bid security on VNEPS shall be in accordance with the roadmap for online investor selection prescribed in point b clause 1 Article 93 of this Decree.
7. Fees prescribed in clauses 2, 3, 4 and 5 of this Article and fees for online investor selection prescribed in clause 6 of this Article are included in the total investment amount of projects prescribed in clause 1 Article 73 of PPP Law.”.
14. Amendments to Article 33:
“Article 33. The expert team
1. The expert team consists of capable and experienced individuals who are invited by the procuring entity to evaluate prequalification applications, negotiation applications, bids and perform other tasks during the investor selection.
2. Depending on the characteristic and complexity of the project, the team consists of experts in technology, finance, commerce, administration, law and relevant fields. Members of the expert team shall satisfy the following requirements:
a) Have professional certificates in bidding, except for cases prescribed in clause 3 of this Article;
b) Have a university degree or higher;
c) Have foreign language skills in cases of selection of international investors;
d) Have full capacity for civil acts in accordance with the law; not being prosecuted for criminal liability;
dd) Have at least 03 years’ experience in the field relevant to legal, technical or financial contents of the projects including having experience or carrying out tasks related to technical contents prescribed in the prequalification documents, negotiation documents, bidding documents, or tasks related to finance or legal.
3. In cases where the opinions of specialized experts are needed, these experts are not required to have professional certificates in bidding.”.
15. Addition of Article 33a after Article 33:
Article 33a. The appraising unit
1. For projects within jurisdiction of provincial People’s Committee, the Departments of Finance of provinces and central-affiliated cities shall appraise the following contents:
a) Negotiation documents, prequalification documents, bidding documents, prequalification results under jurisdiction of provincial People’s Committee, except for cases prescribed in clause 3 of this Article;
b) Investor selection results.
2. For projects within jurisdiction of ministries, central authorities, other authorities, Ministers, heads of central authorities and other authorities shall assign professional authorities, authorities or affiliated units to appraise the following contents:
a) Negotiation documents, prequalification documents, bidding documents, prequalification results under jurisdiction of ministries, central authorities, other authorities, except for cases prescribed in clause 3 of this Article;
b) Investor selection results.
3. If a procuring entity is authorized to approve negotiation documents, prequalification documents, bidding documents, prequalification results, the procuring entity shall establish an appraising unit or assign an affiliated unit to conduct appraisal.
4. If the appraising unit lacks the capacity for appraisal, a capable and experienced consulting organization shall be selected to conduct appraisal. The individual of the consulting organization conducting appraisal shall be in accordance with points a, b, c and d, clause 2, Article 33 of this Decree.".
16. Addition of clause 3 after clause 2 Article 35:
“3. For projects under O&M contract, if the total investment amount of the project includes the payment to the state budget of the investor. After depositing this amount into the state budget, the investor shall be refunded or released from the performance security in proportion to the amount of payment to the state budget of the investor. The remaining performance security shall be refunded or released after the investor or enterprise of PPP project completes other obligations prescribed in the contract.”.
17. Amendments to point dd clause 2, addition of clauses 2a and 2b after clause 2 Article 38:
a) Amendments to point dd clause 2:
“dd) Criteria for evaluation of capacity and experience of investors shall be in accordance with clauses 2a and 2b of this Article;”;
b) Addition of clauses 2a and 2b after clause 2:
“2a. Criteria for evaluation of capacity and experience of investors include:
a) Financial – commercial capacity: ability to raise equity and loan capital; ability to implement the business plan, operate the project works, provide public goods and services;
b) Required capacity and experience of key personnel (if necessary);
c) Experience in implementing similar projects, operating works and infrastructure system for provision of public goods and services (for projects under BOT, BTO, BOO, BTL, BLT or mixed contract);
d) Experience in operating works and infrastructure system for provision of public goods and services (for projects under O&M contract);
dd) Depending on the characteristics and requirements of the project, the prequalification documents may specify the criteria for prioritizing investors with experience in implementing similar PPP projects in an Organization for Economic Cooperation and Development (OECD) country.
2b. In case of a consortium, the investor that is consortium leader shall have a commitment to contribute equity of at least 30%; each consortium member shall have a commitment to contribute equity of at least 15% under the consortium agreement. For projects under O&M contract, at least 01 consortium member has experience of operating works and infrastructure system for provision of public goods and services. For projects under BOT, BTO, BOO, BTL, BLT or mixed contract, at least 01 consortium member or the consortium leader has an agreement to cooperate with a partner that is experienced in operating works and infrastructure for provision of similar public goods and services.”.
18. Amendments to some points and clauses of Article 49:
a) Amendments to the first paragraph of clause 1:
“1. Bidding documents are approved on the basis of the following documents:”;
b) Amendments to clause 4:
“4. If the PPP project has sub-projects funded by public capital or classified as three-step design project in accordance with laws on construction, competent authorities shall prepare, appraise, approve technical designs, estimates of sub-projects funded by public capital during the investor selection.”;
c) Amendments to point c, addition of point d in clause 5:
“c) Competent authorities shall approve bidding documents on the basis of the validation report and the request for approval, except for cases prescribed in point d of this clause;
d) Competent authorities may authorize a procuring entity to approve bidding documents”.
19. Amendments to point a clause 3 Article 50:
“a) Financial – commercial evaluation shall be carried out according to the comparison and ranking method specified in the bidding documents. The bidding documents shall specify one, a number of or a combination of criteria for prices, fees of public goods and services; state capital provided as assistance for construction of works and infrastructure system; social interest, state interest as prescribed in clause 3 Article 42 of PPP Law in order to compare and rank investors according to their financial – commercial capacity. The first-ranked investor will be considered for contract awarding.”.
20. Amendments to Article 57:
a) Amendments to the title of Article 57:
“Article 57. Approval of the list of technically qualified investors”;
b) Amendments to clause 2:
“2. Competent authorities shall approve the list of technically qualified investors. Competent authorities may authorize a procuring entity to approve the list of technically qualified investors.”.
21. Amendments to clause 1, addition of clause 1a after clause 1 Article 65:
“1. The PPP project contract shall be concluded by the parties prescribed in Articles 46, 47, 48 and 49 of PPP Law and the Guidelines for preparation of PPP project contract in Appendices VI, VII and VIII attached to this Decree.
1a. If the PPP project has sub-projects funded by public capital, in addition to regulations in clause 1 of this Article, the PPP project contract shall be concluded on the basis of approved technical design and estimate of the sub-projects funded by public capital.”.
22. Addition of Article 65a in Section 8.1 Chapter IV:
“Article 65a. Authority and procedures for application of investor appointment
1. For projects with requirements for assurance of national defense and security, protection of state secrets as prescribed in point a clause 1 Article 39 of PPP Law, the Prime Minister shall delegate to the Ministers, the heads of central authorities, or other authorities (as the heads of the competent authorities) or the provincial People's Committees to decide the investor appointment.
Before applying investor appointment for projects prescribed in this clause, competent authorities shall collect written opinions of the Ministry of National Defense and Ministry of Public Security on requirements for assurance of national defense and security, protection of state secrets.
2. Procedures and principles for investor appointment shall be in accordance with Article 66 of this Decree.”.
23. Amendments to Article 69:
“Article 69. Authority on application of investor appointment in special cases
1. The Prime Minister shall delegate to the Ministers, the heads of central authorities, or other authorities (as the heads of the competent authorities) or the provincial People's Committees to decide the investor appointment in special cases for the following projects:
a) Projects with requirements for assurance of national interests, national political tasks as directed by resolutions, conclusions, directive documents of the Central Committee of the Communist Party of Vietnam, the Politburo, the Central Secretariat of the Communist Party of Vietnam, key leaders of the Communist Party of Vietnam and the State that fails to satisfy the requirements in cases where one of the methods for investor selection as prescribed in Articles 37, 38 and 39 of PPP Law is applied;
b) The project with requirements for urgent implementation in accordance with the Government's resolutions, decisions, directives, or notifications of the Government's leaders that fails to ensure the progress in cases where one of the methods for investor selection as prescribed in Articles 37, 38 and 39 of PPP Law is applied;
c) The project with requirements for immediate implementation in accordance with the Government's resolutions, decisions, directives, or notifications of the Government's leaders that fails to ensure effective management, operation, and continuous operation of the infrastructure in cases where one of the methods for investor selection as prescribed in Articles 37, 38 and 39 of PPP Law is applied;
d) Offshore wind power project in accordance with the regulations of the electricity law.
2. If the PPP project has specific and separate requirements that are not prescribed in clause 1 of this Article and not eligible for investor selection under following methods: competitive bidding, competitive negotiation, direct contracting, competent authorities shall report to the Prime Minister for consideration and decision on application of investor selection in special cases. Based on the decision of the Prime Minister, competent authorities shall approve the method for investor selection in special cases, and decision on approval of the project or decision on approval of investment guidelines (for high-tech projects, projects applying new technologies) at the same time or separately.”.
24. Amendments to Article 70:
“Article 70. Procedures for application of investor appointment in special cases
1. a) Based on requirements for implementing projects, directions in resolutions, conclusions, directive documents of the Central Committee of the Communist Party of Vietnam, the Politburo, the Central Secretariat of the Communist Party of Vietnam, key leaders of the Communist Party of Vietnam and the State (for projects prescribed in point a clause 1 Article 69 of this Decree) or directions in Government's resolutions, decisions, directives, or notifications of the Government's leaders (for projects prescribed in points b and c, clause 1c Article 69 of this Decree), the competent authorities shall assign the authorities, affiliated units, professional authorities to formulate the application for investor selection in special cases and report to the competent authorities. The application includes the following documents:
a) The application form for investor selection in special cases including the following contents: Basic information of the project; explanation on the necessity and reasons for application of investor selection in special cases; presentation on procedures for investor selection, requirements for concluding the contract and relevant contents in order to satisfy specific requirements of the project as prescribed in clause 1 or clause 2 of Article 69 of this Decree; recommendations and requests;
b) Draft decision on application of investor selection in special cases including contents as prescribed in clause 4 of this Article;
c) Relevant documents and legal documents.
2. Competent authorities shall collect opinions of ministries, relevant authorities on the necessity and reasons for application of investor selection in special cases (if necessary).
3. Competent authorities shall assign an authority or unit independent from authorities and units prescribed in clause 1 of this Article to collect opinions of relevant authorities and appraise the application for investor selection in special cases. The appraising report includes the following contents:
a) Assess the necessity and reasons for application of investor selection in special cases as prescribed in Article 40 of PPP Law;
b) Opinions on investor selection in special cases and draft decision of competent authorities in cases where the request is approved;
c) Written request of competent authorities on approval or denial of investor selection in special cases.
4. Based on the application, appraising report, competent authorities shall consider, decide to approve or deny application of investor selection in special cases. If approval, competent authorities may decide to apply investor selection in special cases and decision on approval of the project or decision on approval of investment guidelines (for high-tech projects, projects applying new technologies) at the same time or separately. The decision on application of investor selection in special cases includes the following contents:
a) Approval on application of investor selection in special cases;
b) The method for application of investor selection in special cases including the following contents: Procedures for investor selection; requirements for concluding and executing the contract; relevant contents in order to satisfy specific requirements of the project, ensure the capacity and experience of the investor, propose a suitable and feasible implementation plan for the project;
c) Responsibilities of the procuring entity and relevant authorities during investor selection;
d) Other requests during project implementation (if any).
5. The procuring entity shall select the investor by the method of investor selection in special cases. The selected investor shall satisfy the requirements for capacity, experience, and propose an appropriate and feasible project implementation plan according to decision on investment guidelines, decision on approval of PPP project.
6. Annually, competent authorities shall report to the Prime Minister on the situation of investment construction for works, infrastructures implemented by the selected investors in special cases, submit to the Ministry of Finance to report to the Prime Minister in the PPP investment activities report in accordance with Article 6 of this Decree.”.
25. Amendments to some points and clauses of Article 74:
a) Amendments to point c clause 2:
“c) An advisory board member must not be the parent, parent-in-law, spouse, natural child, adopted child, son- or daughter-in-law, or sibling of: the person who signs the petition form; any individual that directly participates in preparation of prequalification documents, negotiation documents, bidding documents, evaluation of prequalification applications, negotiation applications or bidding documents; any individual that directly validates the prequalification documents, negotiation documents, bidding documents, prequalification result, investor selection result; the person who signs the approval for the investor selection result, the list of technically qualified investors, investor selection result.;
b) Amendments to point a clause 4:
“a) The standing assistance team of the central-level advisory board is responsible for management of investor selection by the Ministry of Finance. The standing assistance team of a ministerial advisory board is responsible for management of investor selection by that agency. The standing assistance team of a local advisory board is responsible for management of investor selection by the Department of Finance. Members of the standing team do not include the individuals that directly participate in the investor selection result of the same project;
26. Amendments to clause 4 Article 76:
“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 payment for completed works, infrastructures of sub-projects shall be made based on the progress, value, quantity completed as agreed between the contract-signing authority and the investor or project management enterprise in the project contract.”.
27. Addition of clauses 3, 4 and 5 after clause 2 Article 78:
“3. For projects under O&M contract:
a) Based on the investment guidelines, decision on approval of the project and PPP project contract, the contract-signing authority shall take charge, cooperation with state authorities specialized in assets, financial authorities and relevant authorities (if necessary) to transfer the assets to the investor or project management enterprise. The transfer shall be recorded in writing in accordance with laws on the management and use of public assets and other relevant laws;
b) The investor or project management enterprise shall manage, use, maintain, make accounting for the assets invested by the state, ensure the quality and technical standards as prescribed by laws on construction and related laws until the assets are transferred to the authority signing the contract.
c) The authority signing the contract shall take charge and cooperate with state authorities specialized in assets to supervise, inspect the investor project management enterprise to implement regulations prescribed in point b of this clause until the investor or project management enterprise transfers the assets for the authority signing the contract;
d) The transfer, receipt of construction works and infrastructure system from the investor or project management enterprise to the authority signing the contract shall be in accordance with clause 1 of this Article.
4. For projects under BT contract without payment requirements:
a) After the works and infrastructures have been accepted and are eligible for operation in accordance with laws on construction, the investor or PPP project enterprise (if the investor proposes for establishment) shall submit to the authority signing the contract the following documents: written request for handover attached to the application for transfer of construction works and infrastructure system;
b) The authority signing the contract shall sign the record on receipt of assets and prepare documents, report to competent authorities to issue a decision on establishment of public ownership in accordance with laws on the management and use of public assets, and determine authorities, units assigned to operate and maintain the construction works and infrastructure system;
c) Within 30 days from the receipt of the written request for transfer of construction works and infrastructure system, the authority signing the contract shall take charge and cooperate with state authorities specialized in assets, financial authorities and relevant authorities (if any) to carry out tasks prescribed in point b clause 1 of this Article;
d) At least 30 days before the termination of PPP project contract as prescribed in the contract, the authority signing the contract shall cooperate with authorities, units assigned to operate and maintain the construction works and infrastructure system to carry out tasks prescribed in point c clause 1 of this Article;
dd) After establishing public ownership in accordance with laws on the management and use of public assets, authorities, units assigned to operate and maintain the construction works and infrastructure system shall ensure the continuous and quality of provision of public goods and services.
5. In cases where there is a requirement to transfer one or several parts or items of the construction works or infrastructure systems of the PPP project according to the regulations, the PPP project enterprise shall transfer the parts or items of the construction works in accordance with Articles 1, 2, or 4 of this Decree.”.
28. Amendments to some clauses of Article 79:
a) Amendments to point c, addition of point d after point c of clause 1:
“c) The agreement document in accordance with clause 2 Article 80 of this Decree;
d) Other documents as prescribed in the contract.”;
b) Addition of clause 3 after clause 2:
“3. For projects under BT contract without payment requirements, the application for transfer of construction works and infrastructure system includes documents prescribed in points a and d, clause 1 of this Article.”.
29. Amendments to some points and clauses of Article 81:
a) Amendments to point dd clause 2:
“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) in cases where the investor or PPP project enterprise is reimbursed for compensation costs for contract termination before the expiration date. A request for State Audit to audit the compensation costs for contract termination shall be made before the payment is made to the investor or project management enterprise;”;
b) Addition of clause 4a after clause 4:
“4a. When a PPP project contract is terminated prematurely and no replacement investor is selected, the following steps are taken:
a) For projects that are under construction and require a switch to using public investment capital to invest in completing the remaining construction work, the competent authorities shall report to the competent level prescribed in clause 2 Article 93 and clause 3 Article 94 of the PPP Law for consideration and termination of the PPP project contract. For PPP projects under the authority to terminate contracts as prescribed in point b Clause 2 Article 89 of the PPP Law, the Prime Minister shall delegate to the Ministers, the heads of the central authorities, or other authorities (as the heads of the competent authorities) or the provincial People's Committees to decide on the termination of the PPP project contract.
The document allowing the termination of the PPP project contract is also the document ceasing the investment guidelines under the PPP method. The competent authorities shall consider, decide the establishment of projects funded by public investment capital in accordance with point a clause 6a Article 52 of PPP Law;
b) For projects in operation, the competent authorities shall carry out the procedures in accordance with point b clause 6a Article 52 of PPP Law. At the same time, they shall organize the management, operation, maintenance of the construction works and infrastructure system until the competent level assigns another authority or unit as prescribed in clause 2 Article 77 and point d clause 1 Article 78 of this Decree;
c) Annually, competent authorities shall report to the Prime Minister on the implementation of tasks prescribed in point a of this clause (if any), submit to the Ministry of Finance to report to the Prime Minister in the PPP investment activities report in accordance with Article 6 of this Decree.”.
30. Amendments to the title and clause 1 Article 82:
a) Amendments to the title of the Article:
“Article 82. Costs of compensation, premature termination of contract”;
b) Amendments to clause 1:
“1. PPP project contract shall include the payment responsibilities of parties, the formula or method for determining costs of compensation, premature termination of contract for cases prescribed in clauses 2, 2a and 2b, Article 52 of PPP Law.”.
31. Addition of clause 3a and some clauses after clause 11 of Article 83:
a) Addition of clause 3a:
“3a. For projects that organize prequalification, competitive bidding without prequalification, competitive negotiation as prescribed in clauses 2 and 3, Article 38 of the PPP Law, if no investor submits prequalification applications, negotiation applications, or bids by the bid submission deadline, the procuring entity shall report to competent authorities for consideration and resolution as follows:
a) Allow an extension of the bid submission deadline for up to 30 days;
b) Cancel the invitation for bid, review, adjust feasibility study reports (if necessary), prequalification documents, negotiation documents, bidding documents and reorganize the investor selection;
c) Cancel the invitation for bid and stop the investment guidelines of the project.”;
b) Addition of clauses 11a, 11b and 11c:
“11a. If the partner proposed by the investor in the bids to demonstrate experience in operating and managing the construction works and infrastructure system cannot participate in the contract implementation process due to force majeure reasons, the investor can replace the partner with another entity of equivalent or higher capacity and experience. This replacement shall not affect other proposals in the bids. In such cases, the procuring entity shall evaluate the capacity and experience of the new partner based on the bids, and report to the competent authority for consideration and decision.
11b. In case there is no similar project in terms of total investment amount, based on the data on the VNEPS regarding projects where investors have been selected, the procuring entity shall report to the competent authority for consideration and promulgation of requirements for implementing similar projects equal to or not lower than 90% of the requirement in the bidding documents of the project in the same industry with the closest total investment amount to the project under consideration. In this case, the competent authority shall determine that the value of the performance security is 3% of the total investment capital of the project.
11c. In cases a project of which investment guidelines or decision on approval of the project have been approved is required to cancel the project, or the bidding has been canceled due to unable to select an investor, the competent authority shall report to the authority with the power to decide investment guidelines for consideration and decision on whether to cancel the investment guidelines under PPP methods. For projects where the competent authority has already identified an investor, and the investor cannot sign the project contract in separate documents or in the decision for approval of planning, the competent authority shall report to the authorized authority for consideration and decision on cancellation of the project.
In cases where a project is cancelled as prescribed in this clause and there is a requirement to change to another investment form, the procedures for deciding and approving the investment guidelines shall be carried out in accordance with the corresponding regulations for each investment form.”.
32. Amendments to some clauses of Article 93:
a) Amendments to clause 1:
“1. The Ministry of Finance shall:
a) Draft and promulgate model investor selection documents;
b) Set a roadmap for application and provide detained guidance on publishing information, selection of PPP investors and reporting progress of PPP projects on VNEPS;
c) Take charge, provide guidance on management and use of funds relevant to investor selection; cooperate with other Ministries and ministerial agencies in providing guidance on the framework ratio of profit to equity of investors and model project contracts;
d) Provide guidance on implementation of other contents of the Decree to facilitate state management of PPP investment.”.
b) Amendments to clause 3 Article 93:
“3. If necessary, ministries, ministerial agencies shall provide guidance on economic-social benefits, framework ratio of profit to equity of investors, indicators for evaluation of quality of construction works and infrastructure system in pre-feasibility study reports, feasibility study reports; contents of project contract and other necessary contents based on specific requirements (if any) within their jurisdiction.
If there is no guidance as prescribed in this clause, competent authorities shall prepare for the projects, investor selection, conclude and implement PPP project contract in accordance with PPP Law, this Decree and relevant laws.".
33. Amendments to Appendix II:
a) The second bullet point of section 7 of Form No. 02 in Appendix II attached to Decree No. 35/2021/ND-CP dated March 29, 2021 of the Government on elaboration of some articles of the Law on Public - Private Partnership Investment is amended as follows:
“- In case the feasibility study report propose to apply the selection of domestic investors or propose to designate an investor as the project requires assurance of national defense and security, protection of state secrets, the proposal shall be evaluated.”;
b) Section 2, Article 2 of Form No. 03 in Appendix II attached to Decree No. 35/2021/ND-CP dated March 29, 2021 of the Government on elaboration of some articles of the Law on Public - Private Partnership Investment is amended as follows:
“2. The entity (Name of the competent authority or unit preparing the project) or the investor proposes to submit the completed feasibility study report of the (Project Name) project to the authorized authority for project approval in accordance with the provisions of the PPP Law.
[- For high-tech projects, projects applying new technologies: The entity (Name of the competent authority or the procuring entity) shall lead and coordinate with relevant authorities to finalize negotiation documents for the (Project Name) project, and submit to the authorized authority for approval, serve as the basis for organizing competitive negotiations in accordance with PPP Law and this Decree.]”.
34. Amendments to Appendix VI:
a) Amendments to point c clause 7 Section II:
“c) Financial arrangement plan:
- Equity: total capital; progress for the contribution of equity by the owner; roadmap for increasing the project company's charter capital according to the progress for the contribution of equity by the owner.
- Sources of capital mobilization (loans, preferential credit, project corporate bonds, and other sources of capital): total amount of capital mobilization, loan repayment period, grace period, and terms for each source of capital; capital mobilization costs include interest rate on loans from each source of capital, permissible costs related to capital mobilization allowed by law; currency of the loan and exchange rate; conditions for ensuring capital mobilization sources; disbursement schedule, disbursement order, debt repayment plan (by each source of capital).
- The timing of signing the agreement on the selection of a replacement investor between the authority signing the contract, the lender, and the investor, project enterprise (to be signed simultaneously with the credit agreement).”;
a) Amendments to point a clause 19 Section II:
“a) Value; effective period; cases where security deposits are refundable or released, and cases where they are not refundable or released to ensure contract performance; cases of refunding or releasing security deposits for contract performance according to the schedule for projects with phased progress prescribed in the investment guidelines or decision for approval of the project in accordance with Article 48 of the PPP Law and Article 35 of this Decree.”.
35. Replacement of the following clauses, articles, Appendices:
a) The phrase "Ministry of Planning and Investment”, “Department of Planning and Investment” is replaced with “Ministry of Finance", “Department of Finance” in points d and e, clause 1 Article 4; clause 1, point c clause 3, clause 4, Article 5; clause 1 Article 6; clause 3 Article 8; clause 3 Article 9; clause 1 Article 19; clause 6 Article 32; points a and b, clause 1, point a, clause 2 and point a, clause 4 Article 74; clause 2 Article 86; clauses 2 and 3, Article 87.
b)The Form No. 01 – Appendix II is replaced with Form No. 01 – Appendix I attached to this Decree;
c)The Form No. 01 – Appendix III is replaced with Form No. 02 – Appendix I attached to this Decree;
d)The Appendix IV is replaced with Appendix II attached to this Decree;
dd) Additional regulations for Appendix VII – Guidance for formulation of the contract for projects under BT contract without payment requirements are prescribed in Appendix III attached to this Decree;
e) Additional regulations for Appendix VIII – Guidance for formulation of the contract for projects under O&M contract are prescribed in Appendix IV attached to this Decree;
36. Article 2, clauses 4 and 5 Article 17, Article 19, clause 2 Article 20, clause 1 Article 57, clause 2 Article 72, clause 2 Article 82, clause 2 Article 93 are annulled;
Article 2. Transitional provisions
1. If a PPP project has prepared a pre-feasibility study report or adjusted feasibility study report but has not submitted it for appraisal or established the Appraisal Board before January 15, 2025, the project shall proceed in accordance with point a clause 3 Article 6 of Law No. 57/2024/QH15.
2. If a PPP project has been granted investment guidelines by the Prime Minister and is in the process of preparing a feasibility study report or an adjusted feasibility study report but has not submitted it for appraisal or established an Interdisciplinary Appraisal Board before January 15, 2025, the project shall proceed in accordance with point b clause 3 Article 6 of Law No. 57/2024/QH15.
3. If a PPP project has been granted investment guidelines or decision for approval of the project by the competent authorities but bidding documents have not been issued or the project fails to select an investor by January 15, 2025, the investment guidelines shall be reviewed and adjusted, or feasibility study reports shall be adjusted in accordance with the Law on Public-Private Partnership Investment (amended by Law No. 57/2024/QH15) and this Decree.
4. If a PPP project has issued the prequalification document, negotiation document, bidding document before January 15, 2025 but the bid submission deadline is after the effective date of this Decree, the procuring entity shall review the contents of the issued prequalification document, negotiation document, bidding document and report to competent persons for consideration and decision on extension of the bid submission deadline in order to adjust the bidding document and documents as prescribed in this Decree without adjustments to the investment guidelines and approved feasibility study reports, or continue to implement according to the documents that have been issued.
5. If the bidding for a PPP project is conducted before January 15, 2025, but the investor selection result has not been approved by that date, the procuring entity shall submit, appraise, approve the investor selection result based on the issued bidding documents and bids. If the investor selection result has not been approved before the effective date of this Decree, it is not required to make the list of technically qualified investors (in case the project is not yet implemented). Negotiations, finalization, and conclusion of the project contract shall be carried out in accordance with the Law on Public-Private Partnership Investment (amended by Law No. 57/2024/QH15) and this Decree to ensure that it does not lead to adjustments in the investment guidelines and approved feasibility study reports.
6. If a PPP project has had approved investor selection result, but the negotiations, finalization, and conclusion of the contract have not been completed before January 15, 2025, the authority signing the contract shall negotiate, finalize, conclude the contract in accordance with the investor selection result, the bids, bidding documents and the Law on Public-Private Partnership Investment (amended by Law No. 57/2024/QH15) and this Decree to ensure that it does not lead to adjustments in the investment guidelines and approved feasibility study reports.
7. Except for projects under BT contract, projects under PPP contract concluded before January 1, 2021 are allowed to be implemented as prescribed in the project contract. In cases where amendments or supplements to the content of the project contract are necessary but the law at the time of contract conclusion do not have provisions for such amendments, the parties shall agree on amendments or supplements in accordance with the Law on Public-Private Partnership Investment (amended by Law No. 57/2024/QH15), this Decree, and relevant laws in effect at the time of amending the contract.
8. PPP project contracts signed between January 1, 2021, and before the effective date of this Decree in accordance with the Law on Public-Private Partnership Investment and Decree No. 35/2021/ND-CP , shall continue to be implemented as prescribed in the project contract. In cases where amendments or supplements to the content of the project contract are necessary leading to changes in objectives, locations, scale, types of PPP project contracts, increasing total investment amount by 10% or more, or increasing the value of state capital in the PPP project, the procedures for adjusting the investment approval shall be carried out in accordance with Article 18 of the Law on Public-Private Partnership Investment before amending or supplementing the project contract.
9. For PPP projects implemented from January 15, 2025 until the effective date of this Decree, which comply with the Law on Public-Private Partnership Investment (amended by Law No. 57/2024/QH15) and related laws, it is not required to repeat the corresponding procedures prescribed in this Decree.
Article 3. Implementation
1. This Decree comes into force from the day on which it is signed.
2. Clause 2 Article 23 of Decree No. 99/2021/ND-CP dated November 11, 2021 of the Government on management, disbursement, payment and final settlement of investment funds for publicly-funded projects is annulled.
3. Ministers, Heads of ministerial authorities, Heads of governmental authorities, Chairpersons of People's Committees of provinces and central-affiliated cities are responsible to implement this Decree.
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