Thông tư 06/2016/TT-BKHDT

CIRCULAR

GUIDING A NUMBER OF ARTICLES OF DECREE No. 15/2015/ND-CP DATED FEBRUARY 14, 2015 BY THE GOVERNMENT ON INVESTMENT IN THE FORM OF PUBLIC-PRIVATE PARTNERSHIPS

Pursuant to the Law on investment dated November 26, 2014;

Pursuant to the Law on public investment dated June 18, 2014;

Pursuant to Decree No. 15/2015/ND-CP dated February 14, 2015 by the Government on Investment in the form of public-private partnerships;

Pursuant to Decree No. 30/2015/ND-CP dated March 17, 2015 by the Government detailing the implementation of a number of articles of the Law on Bidding on selection of investors;

Pursuant to Decree No. 116/2008/ND-CP dated 14/11/2008 by the Government defining the functions, tasks, entitlements and organizational structure of the Ministry of Planning and Investment;

At the request of the Director of Legal Department, the Minister of Planning and Investment hereby promulgates the Circular guiding the implementation of a number of articles of the Decree No. 15/2015/ND-CP by the Government dated February 14, 2015 on investment in the form of public-private partnerships.

Chapter I

GENERAL PROVISIONS

Article 1. Scope of regulation

1. This Circular guides the implementation of a number of articles of the Decree No. 15/2015/ND-CP dated February 14, 2015 by the Government on investment in the form of public-private partnerships (hereinafter referred to as Decree No. 15/2015/ND-CP) including:

a) The transformation of investment with regard to the investment project by the public capital;

b) Project contracts, other similar contracts and samples of project contracts;

c) Procedures for issuance, modification and revocation of the Certificate of registration of investment and establishment of project management enterprises and relevant forms;

d) Other contents within the competence to give guidance of the Ministry of Planning and Investment as prescribed in Decree No. 15/2015/ND-CP.

2. Mechanism of management and use of the supports for investment preparation; procedures for formulation and approval for project proposals and/or feasibility study reports; use of funds for investment preparation and for the implementation of projects of Ministries, regulatory bodies and provincial People’s Committees; financial plans of the project; the settlement of projects according to specific guidance of the Ministry of Planning and Investment and the Ministry of Finance.

Article 2. Regulated entities

This Circular applies to competent agencies, investors, project management enterprises, lenders and agencies, organizations and individuals relevant to the implementation of projects on investment in the form of public-private partnerships.

Article 3. Interpretation of terms

1. Certificate issuing agency means the agency competent to issue, modify and revoke the Certificate of investment registration as specified in Article 39 of Decree No. 15/2015/ND-CP including the Ministry of Planning and Investment and People's Committees of provinces.

2. Competent agencies include Ministries, regulatory bodies, People's Committees of provinces or agencies authoried by them to conclude and execute project contracts as prescribed in Article 8 of Decree No. 15/2015/ND-CP and Article 9 of this Circular.

3. Project works are infrastructural works of the investment project carried out in form of contracts specified in clauses 3, 4, 5, 6, 7, 8, 9 Article 3 of Decree No. 15/2015/ND-CP and other similar contracts.

4. Project means investment project in form of contracts specified in clauses 3, 4, 5, 6, 7, 8, 9 Article 3 of Decree No. 15/2015/ND-CP and other similar contracts.

5. Other similar contracts are contracts concluded between competent agencies and investors, with Goals and characteristics similar to one or a number of project contracts specified in clauses 3, 4, 5, 6, 7, 8 and 9 Article 3 of Decree No. 15/2015/ND-CP.

6. Satisfactory project dossier means project dossier containing sufficiently documents specified in Decree No. 15/2015/ND-CP this Circular which are completed according to laws.

7. Investment agreement means an agreement between a competent agencies and an investor after negotiating about a project contract so as to confirm that parties have agreed about the draft of the project contract and submitted it to the Certificate-issuing agency and about rights and obligations of each party specified in clause 2 Article 30 of Decree No. 15/2015/ND-CP.

Article 4. Rules for issuance, modification or revocation of the Certificate of investment registration and implementation of project

1. When receiving the project dossier and carrying out relevant procedures, the Certificate-issuing agency shall:

a) Check if the project dossier is satisfactory as prescribed in clause 6 Article 3 of this Circular;

b) Conduct inspection, issue, modify or revoke the Certificate of investment registration and administrative procedures relevant to its competence, procedures provided for in Articles 39, 40 and 41 of Decree No. 15/2015/ND-CP and corresponding provisions specified in Chapter IV of this Circular;

c) Send written notifications containing explanation to investors in case of application for amendment to the project dossier or refusal to issue or modify the Certificate of investment registration or other relevant procedures provided for in Decree No. 15/2015/ND-CP and this Circular;

d) Other tasks and power specified in Decree No. 15/2015/ND-CP this Circular and relevant law provisions.

2. Competent agencies and investors shall:

a) Take legal responsibility for the lawfulness, accuracy and honesty of the project dossier and of documents sent to the Certificate-issuing agency and relevant bodies;

b) Explan and provide information and documents relevant to the project dossier as prescribed in Decree No. 15/2015/ND-CP this Circular and relevant law provisions;

c) Other tasks and power specified in Decree No. 15/2015/ND-CP this Circular and relevant law provisions.

3. Ministries, regulatory bodies and People's Committees of provinces shall:

a) Issue decision on approval for project proposal, feasibility study report, investor selection and use of funds from the state capital to participate in the implementation of the project within their competence according to requirement and procedures specified in Decree No. 15/2015/ND-CP this Circular and relevant law provisions;

b) Issue documents containing opinions about issues related to the projects under their management within the time limit provided for in this Circular.

c) Other tasks and power specified in Decree No. 15/2015/ND-CP this Circular and relevant law provisions.

Chapter II

CONVERSION OF INVESTMENT OF STATE-FUNDED INVESTMENT PROJECT

Article 5. Conditions and forms of conversion

1. The validation of the conversion of state-funded investment projects to the form of public-private partnership shall proceed according to such projects' adherence to clause 1 Article 1 of Decree No. 15/2015/ND-CP.

2. Projects specified in clause 1 of this Article shall be converted according to any of contract models specified in clauses 3, 4, 5, 6, 7 and 8 Article 3 of Decree No. 15/2015/ND-CP or other similar contracts, including:

a) Conversion according to a BOT, BTO, BOO, BTL or BLT contract or other similar contracts, applicable to projects which can be constructed managed, traded, operated or developed by investors according to the project specified in Article 6 of this Circular;

b) Conversion according to BT contract, applicable to projects where land funds can be arranged for the implementation of another project according to the plan specified in Article 7 of this Circular;

c) Other conversion forms and plans for specific cases according to the proposals of Ministries, regulatory bodies, People's Committees of provinces or investors.

Article 6. Conversion under a BOT, BTO, BOO, BTL or BLT contract or other similar contracts

1. Fully withdrawal of state capital funded for the work:

The investor shall return to the State the state capital funded according to the agreed schedule; take responsibility for arranging the remained amount of capital to continue the construction of the work. Such investor shall have the power to manage, trade, operate and develop to recoup the investment and collect profits within a certain period of time according to the agreement with a  competent agency. Time for management, trade, operation or development of a work for recouping the investment and collecting the profits carried out by investors

2. Use of partial or the whole of the state investment for implementing the project:

The whole or a part of the invested state capital shall be counted in the state investment in the implementation of the project according conditions specified in Article 11 of Decree No. 15/2015/ND-CP The investor shall settle the remained capital to continue investing in the construction of the facilities and shall be entitled to manage, trade, operate and develop so as to recoup the investment and collect the profits within a certain period according to agreements with competent agencies. Time for management, trade, operation or development of a facility for recouping the investment and collecting the profits shall be determined on the basis of the remained capital settled by the investor to complete, develop and/or operate the facility and the capital returned to the state (if any).

3. Value of the state investment prescribed in clauses 1 and 2 of this Article shall be determined on the basis of the project finalization by the time of conversion of investment form in accordance with instructions of the Ministry of Finance. Loan for the amount of work which has not been paid for the contractor by the time of conversion of investment form shall be specified in the plan on investment conversion for negotiating with the investor according to the following plans:

a) Ministries, regulatory bodies and People's Committees of provinces shall themselves balance the capital sources to settle the fundamental construction falling withing their responsibility in accordance with the rule for distribution of public investment plan capital to settle the unsettled debts derived from infrastructural development as prescribed in clause 2 Article 106 of the Law on investment;

b) The investor shall return the invested state capital to pay to the contractors.

Article 7. Plan on conversion under a BT contract

1. Value of the state investment in the construction shall be settled until the time of conversion of investment form in accordance with instructions of the Ministry of Finance. Loan for the amount of work which has not been paid for the contractor by the time of conversion of investment form shall be determined according to regulations in clause 3 Article 6 of this Circular.

2. On the basis of the state investment specified in clause 1 of this Article, the investor shall settle the remained capital to continue the construction and shall be allocated or leased out land to carry out other plans to recoup the investment and collect the profits. Value of the land funds allocated to the investor shall be determined on the basis of the state investment in the construction.

3. The settlement with the investor using land funds shall comply with regulations in clause 5 Article 3 of the Decree No. 15/2015/ND-CP and decisions of the Prime Minister on the state mechanisms for settlement with the investor using land funds when carrying out investment project under a BT contract.

Article 8. Documents and procedures for conversion of investment form

1. Ministries, regulatory bodies and People's Committees of provinces shall make proposal for conversion of investment form which shall comprise:

a) A written application for conversion of investment form specifying the necessity for the conversion of investment form and the capability of fulfilling thr requirements specified in clause 1 Article 5 of this Circular; conversion form and plan specified in clause 2 Article 5, Articles 6 anf 7 of this Circular; mechanism for implementing the plan after conversing the investment form (if any);

b) Documents enclosed with the application for conversion of investment form shall include: the proposal containing contents specified in clause 2 Article 16 of Decree No. 15/2015/ND-CP; reports on the implementation of the plan by the time of proposal for conversion of investment form according to laws on public investment.

2. Ministries, regulatory bodies and People's Committees of provinces shall conduct assessment and grant approval for the plan on conversion of investment form and project proposal within their competence as prescribed in clause 1 Article 17 of Decree No. 15/2015/ND-CP. Regarding projects within the competence of the Prime Minister prescribed in clause 3 Article 17 of the Law on public investment, Ministries, regulatory bodies and People's Committees of provinces shall request the Prime Minister to consider and decide the conversion of investment form before granting approval for the project on conversion of investment form.

3. When the project on conversion of investment form and project proposal have been approved according to regulations in clause 2 of this Article, Ministries, regulatory bodies and People's Committees of provinces shall formulate, conduct assessment and grant approval for the modified feasibility study report of the project according to regulations in Chapter IV of Decree No. 15/2015/ND-CP and select investors to negotiate about the project contracts.

4. The selected investors and the competent agencies shall conduct a negotiation on the project contract, conclude an investment agreement and carry out the procedures for issuance of the Certificate of investment registration, establish an enterprise to implement the project according to regualtions in Chapters V and VI of Decree No. 15/2015/ND-CP.

Chapter III

PROJECT CONTRACTS AND OTHER SIMILAR CONTRACTS

Article 9. Agencies entitle to authorize other agencies to conclude and execute the project contracts

1. Ministries, regulatory bodies and People's Committees of provinces shall authorize an agency to conclude and implement the project according to requirements, rules and procedures specified in clauses 2, 3 and 8 Article 8 of Decree No. 15/2015/ND-CP.

2. Agencies entitled to authorize other agencies to conclude and execute a project contract according to regulations in clause 2 Article 8 of Decree No. 15/2015/ND-CP include:

a) Organizations affiliated to Ministries and ministerial-level agencies shall assist Ministers and Heads of ministerial-level agencies to perform the state management;

b) Specialized agencies affiliated to People's Committees of provinces;

c) People’s Committees of districts.

3. Agencies authorized to conclude and execute a project contract shall be answerable to Ministries, regulatory bodies and People's Committees of provinces within the authorization as prescribed in clauses 3 and 4 Article 8 of Decree No. 15/2015/ND-CP.

Article 10. Contents of project contract

1. The project contract shall contain the contents specified in clause 1 Article 32 of Decree 15/2015/ND-CP and Annex I of this Circular.

2. Parties can discuss about documents enclosed with the project contracts (including annexes, documents and other papers) to verify or detail the contents in the project contract.

3. Contents of contracts relevant to the implemenation of the project (if any) agreed by parties in accordance with the provisions of the project contract.

Article 11. Conclusion of project contract

The competent agency and the investor shall conclude a project contract according to regulations in Article 31 of Decree No. 15/2015/ND-CP.  Within 07 working days from the day on which the project contract is concluded, the investor shall send the original of the project contract to the Certificate-issuing agency for retention and investment control according to laws.

Article 12. Proposal for execution of other similar contracts

1. Ministries, regulatory bodies and People's Committees of provinces shall formulate and send a proposal for execution of other similar contracts to the Prime Minister for consideration and decision.

2. An proposal for execution of another similar contract shall contain:

a) The necessity and advatages of the execution of another similar contract in comparison wirth the project contracts specified in clauses 3, 4, 5, 6, 7, 8 and 9 Article 3 of Decree No. 15/2015/ND-CP;

b) Modes of construction, possession, management, trade, operation, development and transfer of project facilities; modes of service provision, capital recovery and profits for investors;

c) International experience of the execution of contracts similar to the contracts expected to be executed (if any).

3. Within 25 days from the day on which the written proposal from Ministries, regulatory bodies and/or People's Committees of provinces, the Ministry of Planning and Investment shall check and request the Prime Minister to consider executing the similar contract.

Article 13. Transfer of rights and obligations according to the project contract

1. The investor (hereinafter referred to as the transferer) is entitled to transfer partially or wholely its rights and obligations specified in the project contract to the lender or other investors (hereinafter referred to as the transferee) according to regulations in Article 34 of Decree No. 15/2015/ND-CP.

2. The transferee shall:

a) Have capability of finance and management to execute the project contract and relevant contracts;

b) Commit to continue performing rights and obligations authorized by the transferor according to the provisions of the project contract and the relevant contracts;

c) Other requirements as agreed in the project contract, the loan contract and relevant agreements between the competent State agency and the investor.

3. The investor shall go through the application procedures for modification of the Certificate of investment registration as provided for in Article 18 of this Circular. For cases of transfer of rights and obligations according to a project contract that causes change in the enterprise registration contents, the project management enterprise shall carry out the procedures for modification of enterprise registration according to laws on enterprises.

4. If the transfer of rights and obligations according to the project contract produces incomes, the transferee shall fulfill financial obligations in accordance with regulations of law on taxation and the project contract.

Chapter IV

PROCEDURES FOR ISSUANCE, MODIFICATION OR REVOCATION OF THE CERTIFICATE OF INVESTMENT CERTIFICATE AND ESTABLISHMENT OF PROJECT MANAGEMENT ENTERPRISES

Article 14. Project dossier and receiving bodies

1. Components of the application for issuance of the Certificate of investment registration (hereinafter referred to as the project dossier) prescribed in clause 1 Article 40 of Decree No. 15/2015/ND-CP are specified as follows:

a) The application form for the Certificate of investment registration shall be made using the form No. 1 in Annex II of this Circular;

b) An investment agreement shall be in accordance with the regulations in clause 2 Article 30 of Decree No. 15/2015/ND-CP, the draft of the project contract shall be in accordance with regulations in clause 1 Article 10 of this Circular and drafts of contracts related to the implementation of the project (if any);

c) A valid duplicate of the decision to approve the project and the feasibility study report;

d) A valid duplicate of the written approval for the plan on use of the state investment in the project according to regulations in clause 2 Article 17 of Decree No. 15/2015/ND-CP (if any);

dd) The joint-venture contract between investors and the draft of the Charter for project management enterprises (if any);

e) A valid duplicate of the written approval for the result of the competent person’s selection of investor for negotiating about the project contract.

2. Receiving bodies:

a) The Ministry of Planning and Investment shall be in charge of receiving the project dossier specified in clause 1 Article 39 of the Decree No. 15/2015/ND-CP;

b) The Service of Planning and Investment of provinces shall be in charge of receiving the project dossier specified in clause 2 Article 39 of the Decree No. 15/2015/ND-CP.

Article 15. Procedures for inspection of the Certificate of investment registration of projects falling within the competence of the Ministry of Planning and Investment

1. The investor shall send 05 copies of the project dossier, 01 of which shall be the original including documents specified in clause 1 Article 14 of this Circular and the others shall be its duplicates, to the Ministry of Planning and Investment.

2. Within 02 working days from the day on which the project dossier is received, the Ministry of Planning and Investment shall check their validity. If the dossier needs modification, the Ministry of Planning and Investment shall send the investor 01 written notification fully specifying the contents must be modified. The notification must specify the request and reasons for modification of the dossier. Time of modification of the dossier shall not be counted in the time limit for issuance of the Certificate of investment registration specified in clause 3 Article 40 of Decree No. 15/2015/ND-CP.

3. Depending on the objectives, characteristics, scope and location of the implementation of the project, within 03 working days from the day on which the satisfactory project dossier is received, the Ministry of Planning and Investment shall send documents to collect suggestions of Ministries, relevant regulatory bodies and the People’s Committee of the province where the project is planned to be located about issues falling within their management according to regulations in Article 65, 66, 67, 68, 69 and 70 of the Decree No. 15/2015/ND-CP.

4. Within 07 working days from the day on which the request is received from the Ministry of Planning and Investment, agencies specified in clause 3 of this Article shall present opinions about issues falling within their management.

5. Within 25 days from the day on which the satisfactory project dossier is received, the Ministry of Planning and Investment shall conduct inspection and issue the Certificate of investment registration to the investor.

6. Contents of inspection:

a) The compliance of the registration for the implementation of the project with the decision to approve the feasibility study report, the written approval for the selection of investor and the project dossier;

b) The application of preferential treatment, investment warranty and support and relevant agreement.

7. At the request of the Ministry of Planning and Investment, the investor shall provide additional explanation to clarify the contents specified in clause 6 of this Article. Time of additional explanation shall not be counted in the time limit for issuance of the Certificate of investment registration specified in clause 3 Article 40 of Decree No. 15/2015/ND-CP.

Article 16. Procedures for issuance of the Certificate of investment registration of projects falling within the competence of People's Committees of provinces

1. The investor shall send 05 project dossiers, 01 of which shall be the original including documents specified in clause 1 Article 14 of this Circular and the others shall be its duplicates, to the Service of Planning and Investment.

2. Within 02 working days from the day on which the project dossier is received, the Service of Planning and Investment shall check the validity of documents and carry out the procedures specified in clause 2 Article 15 of this Circular.

3. Depending on the objectives, characteristics, scope and location of the implementation of the project, within 03 working days from the day on which the satisfactory project dossier is received, the Ministry of Planning and Investment shall send documents to collect suggestions of relevant regulatory bodies about issues falling within their management. If the project contract contains agreements about the application of investment warranty and support which have not been specified in the Decree No. 15/2015/ND-CP or the requirements for implementing the project exceed the competence of People's Committees of provinces, the Service of Planning and Investment shall send documents to collect suggestions of Ministries and regulatory bodies about relevant contents in the project contract which fall within their management according to regulations in Articles 64, 65, 66, 67, 68 and 69 of Decree No. 15/2015/ND-CP.

4. Within 07 working days from the day on which the request is received from the Service of Planning and Investment, agencies specified in clause 3 of this Article shall present their opinions about issues falling within their management.

5. Within 20 working days from the day on which the satisfactory project dossier is received, the Service of Planning and Investment shall formulate and send an inspection report containing the contents specified in clause 6 Article 15 of this Circular to the People’s Committee of province.

6. Within 25 days from the day on which the receiving body receives the satisfactory project dossier, the People's Committee of province shall issue the investor with the Certificate of investment registration.

7. At the request of the Service of Planning and Investment, the investor shall provide additional explanation to clarify the contents specified in clause 6 Article 15 of this Circular. Time of additional explanation shall not be counted in the time limit for issuance of the Certificate of investment registration specified in clause 3 Article 40 of Decree No. 15/2015/ND-CP.

Article 17. Procedures for issuance of the Certificate of investment registration of other projects

1. Other project dossiers shall be formulated according to laws on investment and relevant law provisions.

2. Procedures for issuance of the Certificate of investment registration of other projects:

a) Other projects of foreign investors or economic organizations specified in clause 1 Article 23 of the Law on investment shall carry the procedures for issuance of the Certificate of investment registration according to regulations in Article 37 of the Law on investment and the corresponding provisions in Decree No. 118/2015/ND-CP dated November 12, 2015 by the Government;

b) Other projects of domestic investors or economic organizations specified in clause 2 Article 23 of the Law on investment are not required to carry out the procedures for issuance of the Certificate of investment registration. Any investor wishing to obtain the Certificate of investment registration shall carry out the procedures specified in point a of this clause.

3. Other projects which are carried out concurrently or after the finish of the project facility as provided for in clause 3 Article 43 of Decree No. 15/2015/ND-CP.

Article 18. Modification of the Certificate of registration of investment and project running

1. If the modification of the project or the amendment to the project contract does not change the contents of the Certificate of investment registration, the investor shall send the Certificate-issuing body a notification of the modified contents enclosed with documents related to such modification or amendment for retention and supervision.

2. For cases of modification of name of the project, address or legal representative of the investor, the competent agency or other information related to the investor, the investor shall send a written application for modification of the Certificate of investment registration using the form No. 3 provided in Annex II of this Circular to the Certificate-issuing body. The Certificate-issuing body shall consider modifying the Certificate of investment registration within 05 working days from the day on which the satisfactory application as specified in this clause is received.

3. The modification of a feasibility study report or the amendment to the contents of the project contracts that cause changes in the Certificate of investment registration which does not fall in the cases specified in clause 2 of this Article shall comply with the following regulations:

a) The investor shall send 05 sets of application, 01 of which is the original and the others are its duplicates, to a Certificate-issuing body. The application shall comprise:An application form for modification of the Certificate of investment registration using the form No. 3 in Annex II of this Circular;a report on the implementation of the project by the time of application for modification of the Certificate of investment registration according to laws on investment; a valid duplicate of the Certificate of investment registration and the project contract; an agreement on amendment to the project contracts (applicable to the application for amendment to the project contract);a valid duplicate of the decision on modification of the feasibility study report and the modified feasibility study report (applicable to the application for amendment to the project contract due to the modification of the feasibility study report);an agreement on transfer of rights and obligations according to the project contract (applicable to the transfer of rights and obligations according to the project contracts);an agreement on the receipt of the project by the lender and a valid duplicate of the establishment certificate of the lender or other equivalent documents (applicable to cases where the lender receives the project);

b) The Certificate-issuing body shall collect suggestions of relevant agencies about the modified contents according to the procedures specified in Article 15 and Article 16 of this Circular to consider modifying the Certificate of investment registration within 25 days from the day on which the satisfactory project dossier specified in point a of this Clause is received.

Article 19. Termination of project contract and revocation of Certificate of investment registration

1. A project contract shall be terminated according to regulations in clause 2 Article 36 of the Decree No. 15/2015/ND-CP.

2. Procedures for revocation of the Certificate of investment registration:

a) The investor and the competent agency shall carry out the procedures for termination of the project contract and solve the relevant procedures according to the agreement in the project contract;

b) Within 15 days from the day on which the procedures for termination of the project management and the relevant procedures specified in Point a of this Clause are accomplished, the investor and the competent agency shall send the Certificate-issuing agency an application for revocation of the Certificate of investment registration. The application for revocation of the Certificate of investment registration shall contain information about the implementation of the project and grounds for termination of the project contract and shall be enclosed with documents about the finish of the procedures for termination of the project contract;

c) Within 30 days from the day on which the application for revocation of the Certificate of investment registration prescribed in point b of this Clause is received, the Certificate-issuing agency shall make a decision to revoke the Certificate.

3. Regarding project operated according to the Certificate of investment registration (also the Certificate of Business registration) or the investment license, the investment registry shall decide to terminate the registration in the Certificate of investment registration (also the Certificate of Business registration) or the investment license.

4. The dissolution of the project management enterprise shall comply with laws on enterprises and project contracts.

Article 20. Establishment, management and operation of project management enterprises

1. When the Certificate of investment registration is received, the investor shall go through the procedures for investment registration to establish the project management enterprise according to regulations in clause 1 Article 42 of the Decree No. 15/2015/ND-CP. The management, operation and dissolution of the project management enterprise shall comply with laws on enterprises, laws on investment and project contracts.

2. Regarding projects under BT contracts and group C projects by domestic investors, the investor may establish a project management enterprise according to regulations in clause 1 of this Article or carry out the project itself, provided that the independent management and accounting of the capital and project-related activities are performed.

3. Requirements and procedures for reorganization of a project management enterprise shall be conducted according to laws on enterprises, provisions of the project contract and the guidance of the Ministry of Planning and Investment depending on the proposal of the competent agency and the investor.

4. Equity capital of the investor shall be provided according to the schedule agreed in the project contract. At the time of registration for establishment of a project management enterprise, the investor shall decide the amount of property belongs to its equity capital to be contributed to the charter capital according to laws on enterprises. If the charter capital of the project management enterprise is lower than the equity capital specified in clause 2 Article 10 of Decree No. 15/2015/ND-CP, the investor shall commit itself to raising the charter capital during the implementation of the project to ensure the sufficient provision of equity capital according to the agreement in the project contracts.

Chapter V

IMPLEMENTARY CLAUSE

Article 21. Effect

1. This Circular comes into effect from September 20, 2016.

2. The Circular No. 03/2011/TT-BKHDT dated January 27, 2011 by the Ministry of Planning and Investment shall be annulled since the effective date of this Circular.

Article 22. Responsibilities in implementation

1. Ministries, Heads of ministerial-level agencies, governmental agencies, Presidents of People’s Committees of provinces, investors and relevant agencies and organizations shall be responsible for implementing this Circular.

2. Difficulties that arise during the implementation of this Circular should be reported to the Ministry of Planning and Investment for guidance./.

ANNEX I

BASIC CONTENTS OF THE PROJECT CONTRACT
(Issued together with Circular No. 06/2016/TT-BKHDT June 28, 2016 by the Ministry of Planning and Investment)

I. BOT, BTO, BOO, BTL AND BLT AND OTHER SIMILAR CONTRACTS

1. Bases for signing of project contract

a) Law on Investment, Law on Public investment, Law on Construction, Law on Tender, Law on Enterprises, Decree No. 15/2015/ND-CP, this Circular and relevant legislative documents;

b) The decision on approving the feasibility study report;

c) The document about the selection of investors for negotiation of the project contract;

d) Other necessary documents as agreed between the Parties.

2. Parties to the project contract

a) Competent State agencies (Ministries, regulatory bodies, People's Committees of provinces or agencies authorized to conclude and execute the group B and group C project contracts according to regulations in Clause 2 Article 8 of Decree No. 15/2015/ND-CP).

- Address:……………………………………………………………………………………….

- Telephone: .................... Fax: ....................

- Legal representative (full name, job title)

- Authorization for conclusion and execution of the project contract (if any).

b) The investor

- Enterprise's name (Vietnamese name, English name and abbreviated name, if any)

- Business Registration Certificate/Investment Certificate No. ..... issued by the Department of Planning and Investment/the People's Committee of ..... province/city dated ..... (for investors being Vietnamese enterprises or foreign-invested enterprises established in Vietnam).

- Address:

- Telephone: .................... Fax: ....................

- Representative (full name, job title)

(If a Party to the contract is a foreign investor, the name, nationality and authentic documents of such investor; the establishment certificate or the business registration certificate number or similar documents, if any; address, telephone number, fax, full name and job title of the authorised representative, are required).

c) Project management enterprises.

3. Interpretation

Interpretation of terms, basic concepts must comply with the provisions of Decree No. 15/2015/ND-CP, current laws and specific context of the project contract.

4. Purpose of the project contract

The agreement between the authorised competent State agency and the Investor/project enterprise on the implementation of the project must comply with the provisions of Decree No. 15/2015/ND-CP and specific agreements under this contract.

5. Objectives, location, time limit and schedule for the implementation of the Project

a) Description of the objectives and the scope of the project (including the designed capacity, parts of the project, work items, equipment and activities in the project);

b) Location of the project facilities, planned area of the project facilities and relevant works (if any);

c) Term and schedule for the implementation of the Project.

6. Requirements for technique, technology, quality of project facilities, products or services which are supplied

a) Requirements for technique and technology to satisfy the quality of project facilities, products or services which are supplied;

b) Requirements for design and construction (requirements for the survey, design and construction; procedures for formulation and approval);

c) Rights and obligations of each party in the fulfillment of procedures and requirements specified in Points a and b of this Section.

7. Project's investment capital and financial plan

a) Total investment capital, capital structure, investment structure and capital raising plan, including:

- Equity and equity raising schedule.

- Loan capital and loan raising schedule.

- Requirements, rates, methods and progress for the disbursement of the state investment in the project (if any).

Obligations of the investor/project enterprise to ensure the capital sources and the capital raising schedule for implementation of the project;

c) Commitment of the competent State agency to using the state capital for the implementation of the project (if any);

d) Conditions for adjusting the total investment capital and equity and handling measures;

e) Business plan for capital recovery and profits gaining (determination of proceeds and prices, fees of goods and services; method of determination; commercial exploitation period; principles for adjustment of prices, fees of goods and services and commercial exploitation period; costs of operation, management and maintenance of Facilities).

g) Financial plan for the project, including the total investment; spending; receipts; time for recouping investment and collecting profits.

8. Indemnity, site clearance and the resettlement, requirements for the use of land and related work

a) Time and schedule of land assignment as agreed upon by the parties in line with the project implementation schedule;

b) Obligations of the competent State agency in the cooperation with People's Committees of provinces in site clearance and completion of land allocation or lease for the implementation of the project;

c) Obligations of the investor/project enterprise to secure capital resources for paying the costs of site compensation, clearance and resettlement;

d) Rights and obligations of the investor/project enterprise in using and managing the assigned land area; rights and obligations of the authorized State bodies in supervising and checking the implementation of compensation, site clearance, resettlement and land use by the investor/project enterprise;

dd) Conditions for use of necessary infrastructure works and ancillary works for construction, operation and management of the work (if any);

e) Provisions on excavation and treating fossils, antiques, architectural works or other objects within the Project area and the rights and obligations of the Investor/project enterprise to these objects;

g) Other rights and obligations of the competent State agency and the investor/project enterprise as expressly agreed upon by the parties in accordance with legislation on land and construction, Decree No. 15/2015/ND-CP, this Circular and relevant legal documents;

h) Responsibilities of each Party in the case of violating obligations committed in this Section.

9. Provisions on safety and environmental protection

Obligations of each Party to take measures to ensure the implementation of the Decision approving the Project’s environment impact assessment report and relevant provisions of legislation on safety and environment protection.

10. Timeline and schedule for construction of project facilities

a) Timeline for preparation of construction, site clearance and resettlement; time of construction commencement and implementation schedule for each work item, time of work completion (enclosed with Appendices detailing the implementation schedules and timelines for each work item and Form of the report of the Investor/project enterprise on the construction schedule for the authorized State bodies to supervise and check the construction schedule of the project from the commencement to the operation);

b) Cases of and conditions for adjusting the timeline and schedule of construction of the facilities;

c) Rights and obligations of each Party and handling measures in the case of either Party breaching its committed obligations as stipulated in this Section, including the cases where arise or delay the works to be completed and the responsibilities for compensation by such breaching Party.

11. Provisions on construction, inspection, supervision and management of quality, acceptance and finalization of the facilities

a) Rights and obligations of the Parties in performing the procedures and meeting the requirements on construction in compliance with construction legislation and specific agreements between the Parties;

b) Selection of contractors in the course of construction in compliance with laws on tendering, Decree No. 15/2015/ND-CP and this Circular;

c) The regime for management of quality, supervision and acceptance of the work in compliance with laws on construction and specific agreements between the Parties;

d) Procedures for auditing and settlement the investment and construction capital before completion and putting into operation in compliance with the provisions of Decree No. 15/2015/ND-CP and the guidance of the Ministry of Finance.

12. Provisions on appraisal, operation, maintenance and development of project facilities

a) Rights and obligations of the parties in the implementation of the provisions on appraisal (design, appraisal and verification of construction quality, appraisal of equipment) in compliance with laws and specific agreements between the parties;

b) Rights and obligations of the project enterprise in organizing the management, business exploitation and maintaining the normal operation of the facilities and in ensuring the uninterrupted provision of goods and services; maintenance of the Facilities during the exploitation and operation; conditions for and handling measures upon temporarily suspension of goods and services supply and provision due to technical breakdown, events of force majeure and other circumstances in compliance with Decree No. 15/2015/ND-CP, this Circular and specific agreements between the parties;

c) Obligations of the project enterprise and buying insurance for, and conducting warranty of, the facilities in compliance with the provisions of the Law on Construction, the Law on Insurance Business, relevant legal documents and specific agreements between the parties;

d) Rights and obligations of competent agencies in the inspection, supervision and coordination with the project enterprise to perform the obligations stated in this Section.

13. Provisions on transfer of project facilities

a) Technical conditions, operation conditions and quality of the facilities upon transfer (the competent agency shall, itself or by employing a consulting organization, appraise the quality of the facilities before transfer);

b) List of work items, machines, equipment, properties and all relevant files and documents in the course of survey, design, construction, operation and commercial exploitation of the facilities;

c) Obligations of each party in the maintenance and repair of damages (if any) to maintain the normal operation of the facilities after transfer;

d) Obligations of the investor/project enterprise in technology transfer, training of management and technical skills for operation of the facilities after transfer;

dd) Procedures for transfer of the facilities;

e) The organization taking over and managing the facilities after the transfer.

14. Rights and obligations of each Party

The rights and obligations of each Party in the implementation of the provisions of the Project Contract, the provisions of the Decree No. 15/2015/ND-CP this Circular and relevant legal documents (including the rights and obligations specified in each term of the contract).

15. Investment incentives, supports and warranties (if any)

a) Investment warranty measures as stipulated in the Law on Investment and Decree No. 15/2015/ND-CP;

b) Guarantee committed by the government agency (if any) as stipulated in Article 57 of Decree No. 15/2015/ND-CP;

c) Supporting measures or other undertakings of the competent agency to the investor/project enterprise as specifically agreed upon between the parties (if any).

16. Amendment and/or supplement of the project contract

a) The circumstances and conditions permitted to amend the provisions of the project contract in accordance with the provisions of the Decree No. 15/2015/ND-CP, this Circular and other relevant legal documents (e.g. changes in scale, technical standards, total construction capital; changes in receipts, time of operation and development; changes caused by events of force majeure and other circumstances as agreed upon by the Parties);

b) Order of and procedures for amending and supplementing the project contract in accordance with the provisions of Decree No. 15/2015/ND-CP and this Circular.

17. Lender’s right to accept the project

Conditions and procedures for accepting the project of the lender shall be agreed in accordance with the loan contract, specified in Article 33 of Decree No. 15/2015/ND-CP and this Circular.

18. Transfer of rights and obligations under the project contract

a) Order of, conditions and procedures for the investor/project enterprise to transfer partially or wholly the rights and obligations under the project contract; rights and obligations of the Transferee in accordance with the provisions of Decree No. 15/2015/ND-CP, this Circular and specific agreements between the Parties;

b) Order of, conditions and procedures for determining, exercising and ensuring the implementation of the loan contract, guarantee agreement and the rights to take over the Project in accordance with the Decree No. 15/2015/ND-CP.

19. Time limit and termination of the Project Contract

a) Time limit of the project contract and the conditions for extension or shortening the term of the Project or the Project Contract as stipulated in Decree No. 15/2015/ND-CP and specific agreements between the parties;

b) Circumstances and conditions for terminating the Project Contract under the agreement or prior to the expiry of the time limit in accordance with the provisions of Decree No. 15/2015/ND-CP;

c) Rights and obligations of each Party when the Project Contract terminates upon its expiry;

d) Rights and obligations of each Party when the project contract terminates prior to the agreed expiry; modes and time of settlement and methods of calculating the value of compensation for damages caused by the fault of either Party;

dd) Procedures for contract finalization in cases of termination of the project contract mentioned in this Section.

20. Events of force majeure and handling principle

a) Cases of force majeure and principle to define force majeure events;

b) Provisions on the rights and obligations of each Party upon an event of force majeure on the principles specified in the Civil Code and the Law on Commerce.

21. Laws on governing relation of contracting parties in the contracts and relevant contracts

Laws on governing relation of contracting parties in a contract and contracts relevant to the implementation of such contract shall be conformable to regulations in the Law on investment, the Decree No. 15/2015/ND-CP, this Circular and relevant law provisions.

22. Dispute settlement

Mechanism for settlement of disputes between the parties to the project contract and between the project enterprise and concerned parties shall be in accordance with the Law on Investment, Decree No. 15/2015/ND-GOVERNMENT and relevant law provisions.

23. Effect of the project contract

a) The effective date and termination date of the Project Contract;

b) Time and place of signing, number of copies of the Contract and legal validity of each copy.

24. Other contents

Other contents shall be as agreed by the Parties depending on the domain, scope, nature and requirements for implementation of the Project provided that such contents are not contrary to the provisions of law (e.g. provisions on reporting regime, information confidentiality and other issues).

25. Appendices and attached documents

The appendices, texts and attached documents shall be as agreed by the Parties in accordance with the domain, scope, nature and requirements for implementation of the Project.

II. BT CONTRACT

1. The contents prescribed for BOT, BTO, BOO, BTL and BLT contract and other similar contracts except for the following items, which are stipulated differently.

2. Purpose of the Project Contract

Competent agencies shall:

a) Assign to the investor/project enterprise to implement the project under the BT contract (name of the facilities);

b) Allocate or lease out land for investors/project management enterprises to implement other projects (name of the projects) according to regulations in Article/Articles … of this contract.

3. Investment capital of the project of investment in and construction of the work and plan for capital recovery and collection of profits

a) Investment capital of the Project Facilities under a BT contract (including the contents prescribed in Points a, b, c, Section 7 of Part I);

b) Plan for capital recovery and profit collection:

The investor may be allocated or leased out land to implement other projects so as to recover the capital and collect profits. The settlement using land funds by the investor shall comply with the Decision No. 23/2015/QD-TTg dated June 26, 2015 by the Prime Minister;

c) Time for settlement of BT contract and agreement on responsibilities in the formulation of planning and provision of compensation for site clearance for other projects (if any);

c) The procedures for auditing and settlement of the investment and construction capital shall be in accordance with the provisions of Decree No. 15/2015/ND-GOVERNMENT and the guidance of the Ministry of Finance.

4. Other projects

a) Objectives, requirements and conditions for implementing other projects.

b) Schedule for completion of approval of the 1/500 detailed construction plan, schedule for approval and implementation of other Projects;

c) Rights and obligations of each Party in implementation of other projects as specifically agreed between the Parties shall be in accordance with the provisions of the Law on Investment, the Law on Construction and relevant legal documents (applicable to cases where the investor is assigned another project).