Thông tư 38/2015/TT-BCT

CIRCULAR

DETAILING CERTAIN CONTENTS OF THE INVESTMENT IN THE FORM OF PUBLIC-PRIVATE PARTNERSHIP UNDER THE AUTHORITY OF THE MINISTRY OF INDUSTRY AND TRADE

Pursuant to the Government’s Decree No. 95/2012/ND-CP dated November 12, 2012 defining functions, tasks, powers and organizational structure of the Ministry of Industry and Trade;

Pursuant to the Government’s Decree No. 15/2015/ND-CP dated February 14, 2015 on investment in the form of public-private partnership;

Pursuant to the Government’s Decree No. 30/2015/ND-CP dated March 17, 2015 guiding the implementation of the Law on bidding with respect to investor selection;

At the request of the Director General of the Planning Department,

The Minister of Industry and Trade promulgates detailed regulations on certain contents of the investment in the form of public-private partnership under the authority of the Ministry of Industry and Trade.

Chapter I

GENERAL PROVISIONS

Article 1. Scope and regulated entities

1. Scope

This Circular provides for detailed regulations on investment fields, procedures for performing and supervising investment projects in the form of public-private partnership (referred to as PPP) under the authority of the Ministry of Industry and Trade.

Thermo-power plant projects which are invested under BOT contracts shall not be governed by this Circular.

2. Regulated entities

This Circular is applicable to entities that participate in or are involved in PPP investment activities.

Article 2. Interpretation of terms

In this Circular, these terms are construed as follows:

1. Sector-managing unit is functioned to assist the Minister of Industry and Trade in performing state management functions; or refers to one of non-business units serving the Ministry of Industry and Trade’s state management functions regulated in Article 3 of the Government’s Decree No. 95/2012/ND-CP dated November 12, 2012 defining functions, tasks, powers and organizational structure of the Ministry of Industry and Trade.

2. Proposing unit is one of the following units:

a) Projects proposed by the Ministry of Industry and Trade: The proposing unit shall be the sector-managing unit or the public non-business unit affiliated to the Ministry of Industry and Trade.

b) Projects proposed by investors: The proposing unit shall be the investor of such project.

3. The unit preparing the feasibility study report is one of the following units:

a) Projects proposed by the Ministry of Industry and Trade: Units preparing the feasibility study reports are sector-managing units or public non-business units affiliated to the Ministry of Industry and Trade;

b) Projects proposed by investors: The unit preparing the feasibility study report shall be the investor of such project.

4. Unit in charge of appraising the project proposal and feasibility study report (referred to as the appraising unit) is appointed by the Ministry of Industry and Trade to direct the appraisal or the appraisal council.

Article 3. Investment fields under the authority of the Ministry of Industry and Trade

The projects on the construction, improvement, operation, business and management of infrastructural works, the supply of public equipment and utilities in the following fields:

1. Power plants (including projects on using new energy and renewable energy); transmission lines.

2. Commercial infrastructure works

a) Markets;

b) Shopping malls, supermarkets;

c) Exhibition and fair centers;

d) Logistic centers;

dd) Warehouses.

3. Other projects as regulated in Clause 1 Article 4 of the Government’s Decree No. 15/2015/ND-CP dated February 14, 2015 on investment in the form of public-private partnership (referred to as the No. 15/2015/ND-CP) under the authority of the Ministry of Industry and Trade.

Article 4. Responsibilities of the PPP authority

1. Establish and disseminate policies and legislative documents on PPP investment.

2. Prepare and perform plans on infrastructure investment and development, supply of equipment or utilities under PPP contracts.

3. Promote the investment in announced projects.

4. Carry out the appraisal of project proposals and feasibility study reports.

5. Announce approved project proposals.

6. Prepare plans on the State funding for the execution of investment projects.

7. Monitor, assess and summarize the execution of projects.

8. Other duties as decided by the Ministry of Industry and Trade.

Article 5. Preparing plans on the State funding for the execution of investment projects

1. Managing authorities and non-business units which are affiliated to the Ministry of Industry and Trade shall prepare plans on the State funding for the execution of investment projects as regulated in Article 5 and Article 13 of the Decree No. 15/2015/ND-CP and send them to the PPP authority to submit to the Minister of Industry and Trade for aggregating in 5-year public investment plan of the whole branch.

2. Based on the assigned mid-term public investment plan and results of the approval of feasibility study reports or project proposals (as for group-C projects), managing authorities and non-business units affiliated to the Ministry of Industry and Trade shall prepare plans on the State funding for the execution of investment projects and send them to the PPP authority ahead of July 15 of every year for aggregating in the public investment plan of the following year.

3. The Minister of Industry and Trade shall promulgate the list of investment projects and the State funding for each project on the basis of the decision on approving 5-year and annual plans on investment projects funded by state budget.

Article 6. Appraisal council

1. The Minister of Industry and Trade shall make decision on the establishment of the appraisal council to carry out the appraisal of project proposals and feasibility study reports of group-A and group-B investment projects.

2. The Minister of Industry and Trade shall make decision on appointing members of the appraisal council and the standing unit of the appraisal council depending on the project’s nature and scale.

Chapter II

PROJECT ESTABLISHMENT, APPRAISAL, APPROVAL AND ANNOUCEMENT

Section 1. PROJECTS PROPOSED BY THE MINSITRY OF INDUSTRY AND TRADE

Article 7. Requirements for a project to be selected

PPP projects proposed by the Ministry of Industry and Trade in investment fields regulated in Article 3 of this Circular must meet the requirements in Clause 1 Article 15 of the Decree No.15/2015/ND-CP To be specific, they must:

1. Conform to plans for the development of the industry and trade sector that are approved by the competent authorities;

2. Be able to attract and access commercial capital, technology and managerial experience from investors;

3. Be able to provide good quality products that satisfy consumer’s needs in a constant and stable manner;

4. Have the total investment capital of at least VND 20 billion, except for projects under the O&M contract.

Article 8. Project proposal documents

There are 02 sets of project proposal documents, each of which consists of:

1. Written request for the appraisal of project proposal;

2. The project proposal, the content of which must conform to regulations in Clause 2 and Clause 3 Article 16 of the Decree No. 15/2015/ND-CP

Article 9. Appraisal and approval for project proposal

1. The proposing unit shall send project proposal documents to the PPP authority.

2. Within 03 working days upon receipt of project proposal documents, the PPP authority shall check documents and request the proposing unit to supplement them if they are insufficient or invalid.

3. Within 20 working days upon receipt of valid project proposal documents, the appraising unit shall carry out the appraisal of the project proposal.

With regard to the project with the State funding, the proposing unit shall, on the basis of the estimated rate and source of capital, prepare the application for the State funding for the project as regulated in Clause 3 Article 17 of the Decree No.15/2015/ND-CP and submit it to the Minister of Industry and Trade for approval.

4. Within 05 working days from the date on which appraisal results are made, the PPP authority shall submit the project proposal to the Minister of Industry and Trade for approval. If the appraisal results show that the project proposal does not meet requirements for being approved, the PPP authority shall specify reason in writing and send it to the proposing unit.

Section 2. PROJECTS PROPOSED BY INVESTORS

Article 10. Requirements on project selection

PPP projects proposed by investors in the investment fields regulated in Article 3 of this Circular must meet the requirements in Clause 2 Article 20 of the Decree No.15/2015/ND-CP To be specific:

1. Conform to plans for the development of the industry and trade sector that are approved by the competent authorities;

2. Have capacity for attracting and acquiring the commercial capital, technology and managerial experience from investors;

3. Have ability to provide good quality products and services that satisfy consumer’s needs in a constant and stable manner;

4. Have the total investment capital of at least VND 20 billion, except for projects under the O&M contract.

5. The investor that is a state-owned enterprise must establish a joint venture with another enterprise to propose the project.

Article 11. Project proposal documents

There are 02 sets of project proposal documents, each of which consists of:

1. The application for the appraisal of project proposal;

2. The project proposal, the content of which must conform to regulations in Clause 2 and Clause 3 Article 16 of the Government’s Decree No. 15/2015/ND-CP.
3. Documents certifying legal personality, capacity and experience of the investor;

4. Certificate of experience in the execution of similar projects (if any);

5. Other necessary documents for explaining the project proposal (if any).

Article 12. Appraisal and approval for project proposal

1. Group-C project proposals

a) The investor shall send the project proposal documents to the PPP authority.

b) Within 05 working days upon receipt of project proposal documents, the PPP authority shall check documents and request the investor to supplement them if they are insufficient or invalid.

c) Within 20 working days upon receipt of valid project proposal documents, the PPP authority shall carry out the appraisal of the project proposal.

d) Within 05 working days from the date on which the appraisal results are made, the PPP authority shall submit the project proposal to the Minister of Industry and Trade for approval. If the appraisal results show that the project proposal does not meet requirements for being approved, the PPP authority shall specify reason in writing and send it to the investor who submits such project proposal.

2. Group-A or group-B project proposal:

a) The investor shall send the project proposal documents to the PPP authority.

b) Within 05 working days, the PPP authority shall check documents and request the investor to supplement them if they are insufficient or invalid.

c) Within 20 working days upon receipt of valid project proposal documents, the appraising unit shall carry out the appraisal of project proposal.

d) Within 05 working days from the date on which the appraisal results are made, the PPP authority shall submit the project proposal to the Minister of Industry and Trade for approval. If the appraisal results show that the project proposal does not meet requirements for being approved, the PPP authority shall specify reason in writing and send it to the investor who submits such project proposal.

Article 13. Project announcement

1. Within 07 working days from the date on which the project proposals are approved, the PPP authority shall summarize and announce approved project proposals on the website of the Ministry of Industry and Trade and send notice to the Ministry of Planning and Investment for posting on the national electronic procurement system.

2. Announced information of the project shall comply with regulations in Clause 2 Article 18 of the Decree No.15/2015/ND-CP.

Chapter III

ESTABLISHMENT, APPRAISAL AND APPROVAL FOR FEASIBILITY STUDY REPORTS

Article 14. Establishment of feasibility study reports

1. With regard to the project proposed by the Ministry of Industry and Trade, the proposing unit shall, on the basis of the decision on approving the project proposal, prepare or contract a qualified and experienced consultant to prepare the feasibility study report of such project.

Procedures for selecting the consultant to prepare the feasibility study report shall comply with the law on bidding.

2. With regard to the project proposed by the investor, the Ministry of Industry and Trade shall, on the basis of the decision on approving the project proposal, appoint the investor to prepare the feasibility study report.

The agreement made between the Ministry of Industry and Trade and the investor in charge of preparing the feasibility study report shall comply with regulations in Clause 3 Article 24 of the Decree No.15/2015/ND-CP.

Article 15. Contents of feasibility study reports

1. Basic contents of a feasibility study report shall comply with regulations in Article 25 of the Decree No.15/2015/ND-CP.

2. Relevant parties may carry out the agreement on other contents on the basis of the project’s objectives and nature provided that such agreed contents must be in conformity with the Decree No.15/2015/ND-CP this Circular and other laws.

Article 16. The application for the appraisal of feasibility study report

There are 02 sets of the application for the appraisal of the feasibility study report, each of which consists of:

1. The application form for the appraisal of feasibility study report;

2. The feasibility study report;

3. The copy of the report on the appraisal of project proposal;

4. The copy of the decision on approval for project proposal;

5. Relevant legal documents.

Article 17. Appraisal and approval for feasibility study reports of group-A and group-B projects

1. The unit preparing the feasibility study report shall submit the application for the appraisal of feasibility study report to the PPP authority.

2. Within 05 working days upon receipt of the application for the appraisal of feasibility study report, the PPP authority shall check such application and request the unit preparing the feasibility study report to supplement it if it is insufficient or invalid.

3. Within 03 working days upon receipt of valid application, the PPP authority shall request the Minister of Industry and Trade to make a decision on the establishment of the appraisal council.

4. Within 30 working days from the date on which the appraisal council is established, the appraisal council shall carry out the appraisal of feasibility study report of group-A project.

Within 20 working days from the date on which the appraisal council is established, the appraisal council shall carry out the appraisal of feasibility study report of group-B project.

With regard to the construction project, the standing unit of the appraisal council shall ask for opinions of regulatory bodies on the fundamental design in conformity with the law on construction.

5. Contents of the appraisal shall comply with regulations in Clause 3 Article 26 of the Decree No.15/2015/ND-CP.

6. Within 02 working days from the date on which the appraisal result of feasibility study report is made, the standing unit of the appraisal council shall report to the Minister of Industry and Trade for approval.

Article 18. Adjustment to the feasibility study report

1. The feasibility study report shall be adjusted upon one of cases regulated in Clause 1 Article 28 of the Decree No.15/2015/ND-CP;

2. Procedures for the appraisal and approval for adjusted feasibility study report shall comply with regulations in Article 17 of this Circular.

Chapter IV

INVESTOR SELECTION

Article 19. Establishment, appraisal and approval for prequalification documents and prequalification results

1. The sector-managing unit shall prepare or contract a qualified and experienced consultant to prepare prequalification documents for selecting the investor as regulated by the law on bidding.

2. Contents of prequalification documents are regulated in Clause 1 Article 17 of the Government’s Decree No. 30/2015/ND-CP dated March 17, 2015 guiding the implementation of the Law on bidding with respect to investor selection (referred to as the Decree No. 30/2015/ND-CP).

3. The feasibility study report appraising unit shall carry out the appraisal of prequalification documents in conformity with regulations in Clause 1 Article 82 of the Decree No.30/2015/ND-CP.

4. The feasibility study report appraising unit shall verify prequalification results in conformity with regulations in Point b Clause 3 Article 84 of the Decree No. 30/2015/ND-CP.

Article 20. Investor selection plan

1. The unit preparing the feasibility study report shall make or contract a qualified and experienced consultant to make the investor selection plan and submit it to the Minister of Industry and Trade for approval.

2. The application for approval

There are 02 sets of the application for approval, each of which consists of:

a) The application form for approval which specifies summarized execution process. Contents of the investor selection plan shall comply with regulations in Article 23 of the Decree No. 30/2015/ND-CP.

b) Enclosed documents.

Article 21. Appraisal and approval for the investor selection plan

1. The feasibility study report appraising unit shall carry out the appraisal of the investor selection plan in conformity with regulations in Point a Clause 1 Article 24 of the Decree No. 30/2015/ND-CP;

2. The appraising unit shall submit the investor selection plan to the Minister of Industry and Trade for approval as prescribed in Point a Clause 3 Article 84 of the Decree No. 30/2015/ND-CP.

Article 22. Establishment, appraisal and approval for bidding documents/request for proposals

1. The unit preparing the feasibility study report shall make or contract a qualified and experienced consultant to make bidding documents/request for proposals.

2. The appraising unit shall carry out the appraisal of bidding documents/request for proposals and submit it to the Minister of Industry and Trade for approval.

3. Approving the list of investors that satisfy technical requirements

a) The appraising unit shall carry out the appraisal of the list of investors that satisfy technical requirements as regulated in Point b Clause 3 Article 83 of the Decree No. 30/2015/ND-CP;

b) The Minister of Industry and Trade shall give approval for the list of investors that satisfy technical requirements as regulated in Point b Clause 3 Article 84 of the Decree No. 30/2015/ND-CP.

Article 23. Appraisal and approval for the investor selection result

The appraising unit shall carry out the appraisal of the investor selection result as regulated in Point b Clause 4 Article 83 of the Decree No. 30/2015/ND-CP and make the report on appraisal result as regulated in Point c Clause 4 Article 83 of the Decree No. 30/2015/ND-CP.

Chapter V

CONCLUSION OF INVESTMENT AGREEMENTS AND PROJECT CONTRACTS

Article 24. Contract negotiation with selected investor

1. Based on the investor selection result as regulated in Article 23 of this Circular, the sector-managing unit shall take the prime responsibility and coordinate with the PPP authority and relevant units to negotiate and revise the project contract with the selected investor.

2. Contents of the contract negotiation and revision shall comply with regulations in Clause 2 Article 43 of the Decree No.30/2015/ND-CP.

Article 25. Contract contents

Basic contents of the project contract shall comply with regulations in Article 32 of the Decree No. 15/2015/ND-CP.

The parties may carry out the agreement on other contents relating to the project contract on the basis of the project’s specific nature provided that such agreed contents must be in conformity with the Decree No.15/2015/ND-CP this Circular and other legislative documents.

Documents enclosed to the project contract, including its appendixes, papers and documents certifying or detailing contents of the project contract, are an integral parts of the project contract.

Article 26. Conclusion of investment agreements

After ending the negotiation on contents of the project contract, the sector-managing unit shall make the report on the negotiation result, enclosed with the draft of the investment agreement. Contents of the investment agreement shall conform to Clause 2 Article 30 of the Decree No. 15/2015/ND-CP and the Minister of Industry and Trade shall decide the conclusion of the investment agreement. The Ministry of Industry and Trade shall organize the conclusion of the investment agreement with the main investor.

Article 27. Conclusion of project contracts

The conclusion of group-B and group-C project contracts shall be executed under the authorization of the Minister of Industry and Trade.

Chapter VI

PROJECT EXECUTION SUPERVISION

Article 28. Contract performance supervision

1. As for group-B and group-C projects, the Minister of Industry and Trade shall authorize its affiliated units to supervise the performance of project contracts. The authorized unit may hire a qualified consultant to support it in the supervision of project contract performance in case of need. Costs for hiring consultant are specified in the project contract.

2. As for group-A projects, the Ministry of Industry and Trade shall authorize its affiliated units to supervise the performance of project contracts or hire consultants to do such works in case of need. Costs for hiring consultants are specified in the project contract.

Article 29. Project quality supervision

1. The supervision of the quality of PPP investment projects shall abide by Clause 1 Article 48 of the Decree No. 15/2015/ND-CP and relevant legislative documents.

2. The PPP authority shall propose and submit the Minister of Industry and Trade for approving the annual plan on project quality supervision and members of the supervision team.

3. The Ministry of Industry and Trade shall authorize the PPP authority to organize the inspection of the quality of a part of the works, works items or all of the works when there is any suspicion of the quality or any request of regulatory bodies.

Chapter VII

REPORTING REGULATIONS

Article 30. Reports made by investors

1. The investor executing PPP project must prepare periodical and unscheduled reports as regulated by the law, and reports regulated in Clause 2 and Clause 3 of this Article.

2. Periodical reports

a) The investor or the project enterprise must prepare and submit 6 months reports and annual reports, ahead of July 10 and February 10 respectively, to the PPP authority and sector-managing units.

b) Investors executing PPP projects must prepare and submit reports on supervision and assessment of investment projects to the Ministry of Industry and Trade in accordance with the law on investment supervision and assessment.

c) Reporting contents must specify the progress of works up to the reporting time (disbursement progress, progress of the execution of investment items, etc.); unsolved issues and solutions thereof; expected execution plans.

3. Unscheduled reports

a) In case of force majeure such as acts of god or conflagration, the investor must promptly report to the Ministry of Industry and Trade and competent regulatory bodies.

b) The investor must submit reports, provide documents or explanation about issues concerning his activities at the request of competent regulatory bodies.

Article 31. Reports made by sector-managing units and non-business units

The sector-managing unit must prepare and submit 6 months reports and annual reports, ahead of July 10 and February 10 respectively, to the PPP authority on the execution and investment capital figures of projects of which the sector-managing unit is the main investor.

Chapter VIII

IMPLEMENTATION

Article 32. Implementation

1. The Planning Department that is the PPP authority of the Ministry of Industry and Trade shall monitor, expedite and inspect the implementation of this Circular.

2. Heads of organizations shall organize the implementation of this Circular and suggest types of PPP projects in conformity with their operation.

Article 33. Effect

1. This Circular shall take effect as of December 15, 2015.

2. Entities involved in PPP investment projects should promptly report difficulties that arise during the implementation of this Circular to the Ministry of Industry and Trade (via Planning Department) for guidance./.