Thông tư 03/2011/TT-BKHDT

CIRCULAR

GUIDING A NUMBER OF PROVISIONS OF THE GOVERNMENT'S DECREE NO. 108/2009/ND-CP OF NOVEMBER 27, 2009, ON INVESTMENT IN THE FORMS OF BUILD -OPERATE-TRANSFER, BUILD-TRANSFER-OPERATE AND BUILD-TRANSFER CONTRACTS

Pursuant to the Government's Decree No. 116/2008/ND-CP of November 14, 2008, defining the functions, tasks, powers and organizational structure of the Ministry of Planning and Investment:
Pursuant to the Government's Decree No. 108/2009/ND-CP of November 27, 2009, on investment in the forms of build-operate-transfer contract, build-transfer-operate contract and build-transfer contract:
Pursuant to the Government's Decree No. 85/ 2009/ND-CP of October 15. 2009, guiding the implementation of the Bidding Law and selection of construction contractors under the Construction Law,
The Ministry of Planning and Investment guides the implementation of a number of provisions of Decree No. 108 as follows:

Chapter I

GENERAL PROVISIONS

Article 1. Scope of regulation

1. This Circular guides the implementation of a number of provisions of the Government's Decree No. 108/2009/ND-CP of November 27, 2009. on investment in the forms of build-operate-transfer (BOT) contract, build-transfer-operate (BTO) contract and build-transfer (BT) contract (below referred to as Decree No. 108/ 2009/ND-CP).

2. Clause 2. Article 47 of Decree No. 108/ 2009/ND-CP and related provisions of this Circular shall be implemented under the Ministry of Finance's guidance.

Article 2. Forms of other similar project contracts (Clause 1, Article 1 of Decree No. 108/ 2009/ND-CP)

1. Ministries, sectors and provincial-level People's Committees shall send to the Ministry of Planning and Investment written requests for the performance of other similar project contracts which contain details specified for project proposals in Articles 11 and 12 of Decree No. 108/2009/ND-CP.

2. Based on written requests of ministries, sectors and provincial-level People's Committees, the Ministry of Planning and Investment shall summarize and submit these requests within 15 working days after the receipt thereof to the Prime Minister for consideration and decision on performance of other similar project contracts.

3. After obtaining the Prime Minister's approval of other similar project contracts, ministries, sectors and provincial-level People's Committees shall add these projects to their lists of projects and organize the implementation thereof under Decree No. 108/2009/ND-CP and this Circular.

Article 3. Investors and project enterprises (Clauses 7 and 8. Article 2 of Decree No. 108/ 2009/ND-CP)

1. Investors shall establish new project enterprises according to the procedures specified in Article 49 of this Circular.

2. The rights and obligations of project enterprises and relationships between investors and project enterprises shall be specified in project contracts in compliance with Clause 2. Article 16 of Decree No. 108/2009/ND-CP.

Article 4. State agencies competent to sign and perform project contracts (Article 3 of Decree No. 108/2009/ND-CP)

1. Authorized agencies specified in Clause 2. Article 3 of Decree No. 108/2009/ND-CP mean state management agencies attached to ministries, sectors and provincial-level People's Committees. When authorized, agencies attached to ministries, sectors and provincial-level People's Committees are state agencies competent to sign and perform project contracts.

2. The authorization under Clause 1 of this Article shall be made in writing, specifically defining the powers and responsibilities of authorized agencies for the project preparation and project contract negotiation and performance.

Article 5. Investment domains (Article 4 of Decree No. 108/2009/ND-CP)

1. For projects to build infrastructure facilities not in the domains specified in Article 4 of Decree No. 108/2009/ND-CP ministries, sectors and provincial-level People's Committees shall consult concerned ministries, sectors and localities and send written requests for project implementation lo the Ministry of Planning and Investment for summarization and submission to the Prime Minister for consideration and decision.

2. Written requests for project implementation must have details specified for project proposals in Articles 11 and 12 of Decree No. 108/2009/ND-CP.

3. Within 15 working days after receiving written requests for project implementation of ministries, sectors and provincial-level People's Committees, the Ministry of Planning and Investment shall summarize and submit these requests together with opinions of concerned agencies lo the Prime Minister for consideration and decision on the project implementation.

4. After obtaining the Prime Minister's approval of the project implementation, ministries, sectors and provincial-level People's Committees shall add projects to their lists of projects and organize the implementation (hereof under Decree No. 108/2009/ND-CP and this Circular.

Article 6. Capital sources for project implementation (Article 5 of Decree No. 108/2009/ND-CP)

1. Equity means a capital amount actually owned and committed by an investor lo be contributed to a project enterprise's charier capital and determined on the basis of total investment capital of each project.

2. Capital sources, capital-raising schedule and conditions for increase or reduction of the equity or total investment capital of a project and handling measures to be taken in such cases shall be agreed upon in the project contract in compliance with Decree No. 108/2009/ND-CP the law on enterprises, the law on construction investment and relevant legal documents.

Competent stale agencies shall supervise and inspect the contribution of equity under capital-raising plans as agreed upon in project contracts and the provisions of this Article.

Article 7. Use of stale capital for project implementation (Article 6 of Decree No. 108/ 2009/ND-CP)

1. Total slate capital specified in Clause 1. Article 6 of Decree No. 108/2009/ND-CP means a capital amount used for implementing a specific project, including: slate budget capital, stale-guaranteed credit capital, the State's development investment credit capital, state enterprises' development investment capital and other capital sources managed by the State.

2. For projects to be implemented to meet urgent needs for using infrastructure facilities and other important projects, ministries, sectors and provincial-level People's Committees shall formulate investment projects using state capital lo support the implementation of such projects in the forms specified in Clause 2. Article 6 of Decree No. 108/2009/ND-CP.

3. The formulation, appraisal, approval and management of stale capital-using projects comply with regulations on state capital management and the law on construction investment.

Article 8. Inter-branch working parties (Article 7 of Decree No. 108/2009/ND-CP)

1. Based on project negotiation and implementation requirements, a competent state agency may select a capable and experienced domestic or foreign consultancy organization to render assistance in the performance of the tasks specified in Clause 2. Article 7 of Decree No. 108/2009/ND-CP.

2. The selection of consultancy organizations complies with the bidding law.

Article 9. Mechanisms for implementation of BT projects

1. Allocation of land for investors to implement other projects:

a/ The selection of investors complies with relevant provisions of Point b. Clause 2. Article 38 of this Circular:

b/ Selected investors shall remit into the state-budget the. monetary difference between the value of land use rights of land lots for implementation of other projects and total investment capital for construction of BT works.

2. Cash payments to investors constructing BT works:

Competent stale agencies shall select investors under regulations in case of cash payment specified at Point b. Clause 2. Article 38 of this Circular.

3. In case land areas can be arranged to create capital sources for payment to investors constructing BT works, competent state agencies shall select investors to construct BT works under Clause 2 of this Article and organize an auction of land use rights under law or a bidding for selection of investors to implement land-using projects under the guidance of the Ministry of Planning and Investment. In this ease, payments to investors constructing BT works shall be made only after these works arc completed, tested for takeover and handed over to competent state agencies under the conditions specified in project contracts.

Chapter II

DRAWING LP AND ANNOUNCEMENT OF LISTS OF PROJECTS

Article 10. Drawing up and approval of lists of projects (Article 9 of Decree No. 108/2009/ ND-CP)

1. In the course of elaboration of their annual socio-economic development plans, ministries, sectors and provincial-level People's Committees shall draw up or adjust their lists of projects.

2. Each project to be considered for listing must fully satisfy the following conditions:

a/ Being in line with the sector development master plan or local socio-economic development master plan;

b/ Falling into an investment domain specified in Article 4 of Decree No. 108/2009/ ND-CP:

c/ Having objectives which meet the need for using socio-economic infrastructure facilities in case the concerned ministry, sector or locality is unable to mobilize state budget capital or capital of other sources for its implementation when the project needs to be implemented:

d/ Having a feasible plan to balance capital sources for payment to the investor or assign another project to the investor for implementation (for BT projects).

3. Depending on the domains and locations of projects expected to be listed, ministries, sectors and provincial-level People's Committees shall send a written request to the Ministry of Planning and Investment and concerned line ministry and locality (below collectively referred to as concerned agencies) for comment on these projects. Such request must contain the details specified in Clause 4. Article 9 of Decree No. 108/2009/ND-CP and be enclosed with the list of projects.

4. Ministries, sectors and provincial-level People's Committees shall, based on summarized opinions of concerned agencies, approve the list of projects. For projects which require local budgets for payment lo investors or support in project implementation, provincial- level People's Committees shall propose lo the standing bodies of the Peoples Councils for consideration the capability of local budgets according to regulations applicable to slate-funded projects.

5. A list of projects shall he modified in (he following cases:

a/ When a modification is made to the sector master plan or local socio-economic development plan which results in a change in the project implementation guideline or in the objectives, sizes, locations, capacities and technical standards of projects on the announced list;

b/ Procedures for selection of investors to implement projects have been completed for one or several projects on the list:

c/ Other cases as decided by ministries, sectors or provincial-level People's Committees.

Upon modifying lists of projects, ministries, sectors and provincial-level People's Committees shall announce the changed contents according to the procedures specified in Clause 1. Article 10 of Decree No. 108/2009/ ND-CP.

Article 11..Announcement of lists of projects (Article 10 of Decree No. 108/2009/ND-CP)

1. Lists of projects shall be announced in January every year according to the procedures and contain the details specified in Clause 1. Article 10 of Decree No. 108/2009/ND-CP If there is no new list of projects, ministries, sectors and provincial-level People's Committees shall re-announce lists of projects announced in the previous year.

2. Investors shall make registrations for project implementation according to form No. 1 provided in Appendix I to this Circular (not printed herein).

Article 12. Projects proposed by investors outside announced lists of projects (Article 11 of Decree No. 108/2009/ND-CP)

1. A project proposal must contain the details specified in Articles 11 and 12 of Decree No.108/2009/ND-CP.

2. Ministries, sectors and provincial-level People's Committees shall decide on and announce agencies to receive project proposals according to their functions and powers provided by law and the management requirements of sectors and localities.

3. For projects already incorporated in master plans, ministries, sectors and provincial-level Peoples Committees shall consider and approve them according lo the procedures specified in Clauses 3.4 and 5. Article 9 of Decree No. 108/2009/ND-CP.

For projects not yet incorporated in master plans, ministries, sectors and provincial-level People's Committees shall carry out procedures for addition of these projects to master plans after consulting concerned agencies on project proposals.

4. Within 30 working days after the publication o\' principal contents of a project proposal under Clause 5. Article 11 of Decree No. 108/2009/ND-CP the competent stale agency shall carry out procedures for:

a/ Designating an investor in case no other investors register to implement the project; or

b/ Organizing an open bidding to select an investor in case other investors register to implement the project.

Article 13. Elaboration and approval of feasibility study reports (Article 12 of Decree No. 108/2009/ND-CP)

1. Competent state agencies shall make feasibility study reports of projects, including also projects proposed by investors which have been additionally approved in the lists of projects, for use as a basis for selection of contractors and negotiation of project contracts.

2. Depending on project implementation requirements, competent state agencies shall make feasibility study reports and prepare bidding dossiers or requirement dossiers or select capable and experienced consultancy organizations to do so. The selection of consultancy organizations complies with the bidding law.

3. For BT projects, in addition lo making feasibility study reports of projects to construct BT works, competent state agencies shall prepare detailed l:2.000-scale construction plans for land lots to be allocated to investors for implementation of other projects or work out plans on cash payment to investors.

4. Competence to evaluate feasibility study reports:

a/ For projects of national importance, the Prime Minister shall set up a state evaluation council to evaluate their feasibility study reports.

b/ Ministries, sectors and provincial-level People's Committees shall evaluate feasibility study reports of projects of groups A. B and C.

Dossiers, order and procedures for and jobs involved in the evaluation of feasibility study reports comply with the construction law.

5. The approval of feasibility study reports complies with Article 12 of Decree No. 108/ 2009/ND-CP.

Chapter III

SELECTION OF INVESTORS AND NEGOTIATION ON PROJECT CONTRACTS

Section I GENERAL PROVISIONS

Article 14. Interpretation of terms

In this Chapter, the terms below are construed as follows:

1. Selection of investors means a process of open bidding or designation of contractors to identify capable and experienced investors whose technical and financial proposals are considered the most effective according to the standards specified in bidding dossiers or requirement dossiers.

2. Person competent to select investors (below referred to as competent person) means the head of a state agency competent to sign and implement project contracts under Clauses 1, 2 and 3 of Decree No. 108/2009/ND-CP.

3. Bid solicitor means a unit attached lo a competent state agency, decided by a competent person and responsible for organizing the selection of investors under this Circular. In case a bid solicitor is inexperienced, incapable and insufficiently staffed, it may hire a consultancy organization to perform its tasks but shall bear. in any circumstance, total responsibility for the selection of investors under this Circular.

4. Team of bidding experts is composed of capable and experienced individuals and set up or selected by the bid solicitor to perform the tasks specified in Article 25 of this Circular.

5. Bidding dossier means a document which is applicable to open bidding, providing requirements related to the project implementation and used as a basis for the investor to prepare a bid dossier and for the team of bidding experts to evaluate and select investors.

6. Requirement dossier means a document which is applicable to designation of investors, providing requirements related to the project implementation and used as a ground for the investor requested to be appointed to prepare a requirement dossier and for the team of bidding experts to evaluate and select investors.

7. Bid dossier or proposal dossier means a document prepared and submitted by the investor to the bid solicitor as required in the bidding dossier or requirement dossier.

Article 15. Conditions on selection of investors and conditions on bidding participation

1. A bid solicitor may organize the selection of investors only when fully satisfying the following conditions:

a/ Its project is on the list of projects announced by a ministry, sector or provincial-level People's Committee under Clause 1. Article 10 of Decree No. 108/2009/ND-CP and published under Article 11 of (his Circular:

b/ The feasibility study report, investor selection plan, bidding dossier or requirement dossier has been approved.

2. An investor may participate in bidding only when fully satisfying the following conditions:

a/ Having legal person status (for institutional investors) or civil act capacity under law (for individual investors):

b/ Having capital sources for project implementation satisfying the requirements specified in Articles 5 and 6 of Decree No. 108/ 2009/ND-CP and Articles 6 and 7 of this Circular (for partnerships participating in bidding, equity capital shall be determined based on the proportion of investment made by each partner and specifically indicated in the partnership agreement);

c/ Participating in bidding by filing an independent bid application or under the name of a partnership of investors (in case of partnership, involved investors shall reach a written agreement indicating the head of the partnership, common responsibility and individual responsibility of each partnership member);

d/ Undertaking in writing that it is neither in a slate of bankruptcy nor in the process of dissolution nor being concluded by a competent agency to be financially incapable nor being handled for a violation under law.

Article 16. Languages used in the selection of contractors

1. For selection of domestic investors, bidding dossiers, requirement dossiers, bid dossiers, proposal dossiers and documents lo be exchanged between the bid solicitor and investors shall be made in Vietnamese.

2. For international open bidding, bidding dossiers and requirement dossiers shall be made in English or bilingually in Vietnamese and English. Languages to be used in these cases are prescribed as follows:

a/ In case bidding dossiers or requirement dossiers are made in English, bid dossiers or proposal dossiers shall be made in English:

b/ In case bidding dossiers or requirement dossiers are made in Vietnamese and English, investors may choose either language in making bid dossiers or proposal dossiers. However, when there is a difference in terminological interpretation between the two languages, bidding dossiers or requirement dossiers in English shall be referred to.

Article 17. Expenses for selection of investors

1. Expenses for selection of investors include expense for making bidding dossiers or requirement dossiers, expense for examination of bid dossiers or proposal dossiers, expense for evaluation and other expenses arising in the selection of investors.

2. Expenses for selection of investors are covered" by proceeds from the sale of bidding dossiers or requirement dossiers under the Ministry of Finance's guidance. In case these proceeds are not enough lo cover expenses for the selection of investors, the bid solicitor shall report such to a competent person for the deficit to be covered by the budget of the ministry, sector or locality.

The bid solicitor shall manage, use. settle and finalize expenses for the selection of investors under the law on the stale budget.

3. Selling price (tax-inclusive) of a dossier set shall be decided by the bid solicitor depending on the size and characteristics of the project but must not exceed VND 50.000.000 for domestic open bidding or designation of investors.

* For international open bidding, the selling price shall be set according to international practice, but must not exceed VND 100.000.000.

Article 18. Forms and methods of selection of investors

1. Open bidding for selection of investors:

a/ Domestic open bidding is applicable to any project in which two or more domestic investors register to participate;

b/ international open bidding is applicable to projects in which no domestic investor .registers to participate or for which a domestic open bidding has been organized but no investor has been selected.

2. Designation of investors:

a/ The designation of investors to implement projects lo meet urgent needs for infrastructure facilities under Clause 3. Article 14 of Decree No. 108/2009/ND-CP must satisfy any of the following conditions:

- Projects need to be early implemented to assure energy security and safety;

- Projects need lo be implemented to serve national important events:

- Projects need to be implemented to protect security sovereignty and territorial land or sea borders and islands.

b/ Upon proposing the Prime Minister to decide on designation of investors under Point a of this Clause, ministries, sectors or provincial-level People's Committees shall make written requests for investor designation, each comprising the following:

Summarized principal contents of the project:

Explanation about satisfaction of the conditions specified at Point a of this Clause:

Explanation about the socio-economic benefits brought about b\ investor designation;

Commitment to designating investors strictly according to explained contents.

c/ Written requests for investor designation shall be submitted to the Prime Minister and concurrently to the Ministry of Planning and Investment for examination.

The Ministry of Planning and Investment shall, within 15 days after receiving a written request of a ministry, sector or provincial-level People's Committee, propose the Prime Minister to consider and decide on the investor designation.

3. Methods of selection of investors:

a/ The single-stage one-dossier-bag method is applicable to investor designation:

b/ The single-stage two-dossier-bags method is applicable to open bidding, in which the bid dossier consists of a technical proposal dossier (capability and experience of investors and technical issues) and a financial proposal dossier. The technical proposal dossier shall be opened right after the bid closing (the first bid opening) for prequalification. Investors satisfying capability, experience and technical requirements will have their financial proposal dossiers opened (the second bid opening) for financial qualification.

Article 19. Bid security

1. Before the deadline for submission of bid dossiers or proposal dossiers time of bid closing), investors may choose any of bid security measures, including: payment of deposit, escrow account or submission of guarantee letter.

2. Bid security value is indicated in a bidding dossier or proposal dossier on the following principle:

a/ For investment capital amount of up lo VND 1.5 trillion, the bid security value is applied at between 1 and 1.5 % of the total investment capital of the project:

b/ For investment capital amount of over VND 1.5 trillion, the bid security value is applied at between 0.5 and under 1 % of the total investment capital of the project.

3. The validity duration of a bid security shall be determined to be equal to that of bid dossiers or proposal dossiers. In case of necessity to prolong the validity duration of a bid dossier or proposal dossier, the bid solicitor shall request the investor to prolong the validity duration of the bid security correspondingly. In this case. the investor may not modify the content of the bid dossier or proposal dossier after the time of bid closing, except when it is necessary to clarify the bid dossier or proposal dossier under Article 37 of this Circular. The investor that refuses to prolong the validity duration of the bid dossier or proposal dossier shall be eliminated and will be refunded the bid security by the bid solicitor.

4. For partnership bidders, each member of a partnership may make a separate bid security or agree with other members to let a member provide a bid security for the partnership. The bid security may bear the name of the partnership or the name of the partnership member providing it.

5. Bid securities shall be refunded to unselected investors within 30 days after selection results are announced. Winning investors shall be refunded the bid security after taking measures to secure their obligations to perform project contracts under Article 23 of Decree no 108/2009/ND-CT.

6. Bid securities shall not be refunded to investors and be remitted into the state budget in the following cases:

a/ After the bid closing and within the validity duration of bid dossiers or proposal dossiers, investors withdraw these dossiers:

b/ Investors fail to negotiate project contracts within 30 days alter receiving notices of selection results or fail to sign project contracts after successful negotiations;

c/ Investors fail to lake measures to secure their obligation to perform project contracts under Article 23 of Decree No. 108/2009/ND-CP.

Article 20. Time limit for organizing selection of investors

I. Time limit for prequalification of investors:

a/ The prequalification of investors shall be conducted within 60 days for domestic open bidding and 75 days for international open bidding, counting from the dale of issuance of prequalification invitation dossiers to approval of prequalification results:

b/ Prequalification dossiers shall be prepared within 15 days for domestic open bidding and 25 days for international open bidding counting from the first date of issuance of prequalification invitation dossiers to the time of prequalification closing.

2. Time limit for preparation of bid dossiers or proposal dossiers:

a/ Bid dossiers or proposal dossiers shall be prepared within 45 days for domestic open bidding and investor designation and 60 days for international open bidding, counting from the dale of issuance of bidding dossiers to the time of bid closing:

b/ When necessary to modify bidding dossiers or requirement dossiers after their issuance but before the time of bid closing, the bid solicitor shall notify such in writing to the investors that have purchased bidding dossiers or requirement dossiers at least 15 days before the lime of bid closing for these investors to have enough time for completing their bidding dossiers or requirement dossiers.

3. Validity duration of bid dossiers or proposal dossiers:

a/ The validity duration of bid dossiers or proposal dossiers shall be appropriately indicated in bidding dossiers or requirement dossiers and counted from the time of bid closing to the date of official signing of the project contract, but must not exceed 210 days;

b/ In case of necessity, the bid solicitor may request investors to prolong once or more than once the validity duration of their bid dossiers or proposal dossiers, but the total prolonged duration must not exceed 60 days.

4. Time limit for evaluation of bid dossiers or proposal dossiers:

a/ Bid dossiers shall be evaluated within 60 days for domestic open bidding and 90 days for international open bidding, counting from the dale of bid opening to the dale of the bid solicitor reports on investor selection results to a competent person for decision:

b/ Proposal dossiers shall be evaluated within 30 days counting from the date of bid opening to the date the bid solicitor reports on investor selection results to a competent person for decision.

5. Time limit for appraisal of bidding dossiers or requirement dossiers and appraisal of investor selection results:

a/ Bidding dossiers or requirement dossiers shall be appraised within 30 days after the receipt of all documents submitted by the team of bidding experts to the date the appraising agency or organization sends a report on appraisal of bidding dossiers or requirement dossiers to the head of the bid solicitor for consideration and decision:

b/ Investor selection results shall be appraised within 30 days after the receipt of a complete report on investor selection results of the bid solicitor to the date the appraising agency or organization sends a report on appraisal of investor selection results to the head of a competent person for consideration and decision.

6. The lime limit for approval of bidding dossiers or requirement dossiers and investor selection results:

Bidding dossiers or requirement dossiers and investor selection results shall be approved within 15 days alter the head of the bid solicitor or the competent person receives a report on appraisal of bidding dossiers or requirement dossier and investor selection results from the appraising agency or organization.

Article 21. Decentralization of competence for appraisal and approval in the course of investor selection

1. Decentralization of competence for appraisal:

a/ For projects falling under the competence of ministers or heads of ministerial-level agencies, government-attached agencies or agencies attached to ministries or sectors, these ministers or heads shall decide on agencies or organizations to appraise investor selection plans and results;

b/ For projects falling under the competence of chairpersons of provincial-level People's Committees or their attached agencies, provincial-level Departments of Planning and Investment shall appraise investor selection plans and results;

c/ Heads of bid solicitors shall select their capable and experienced organizations or individuals or consultants (when necessary) under the bidding law to appraise prequalification invitation dossiers, prequalification results, bidding dossiers or requirement dossiers.

2. Decentralization of competence for approval:

a/ Competent persons shall approve investor selection plans and results;

b/ Heads of bid solicitors shall approve prequalification invitation dossiers, prequalification results, bidding dossiers or requirement dossiers.

Section 2 PROCESS OF INVESTOR SELECTION

Article 22. General process of investor selection

1. Elaboration, appraisal and approval of investor selection plans.

2. Preparation for investor selection.

3. Issuance of bidding dossiers or requirement dossiers and receipt of bid dossiers or proposal dossiers.

4. Evaluation of bid dossiers or proposal dossiers;

5. Submission, appraisal, approval and announcement of investor selection results.

A. ELABORATION. APPRAISAL AND APPROVAL OF INVESTOR SELECTION PLANS

Article 23. Elaboration of investor selection plans

1. Based on the announced list of projects and the number of registering investors, the bid solicitor shall make and submit an investor selection plan to a competent person and concurrently to the appraising agency or organization.

2. An investor selection plan contains the following details:

a/ Name of the project;

b/ Total investment capital of the project:

c/ Form of the project contract (POT. BTO or BT);

d/ Form of investor selection (domestic or international open bidding or prequalification):

e/ Method of investor selection:

f/ The Slate's investment incentives and supports and government guarantee (if any):

g/ Conditions for and method of payment to investors (for BT projects):

h/ lime limit for organizing investor selection (counting from the date of issuance of prequalification invitation dossiers, requirement dossiers or bidding dossiers to the date of the decision approving investor selection results);

i/ Other necessary contents.

Article 24. Appraisal and approval of investor selection plans

1. An appraising agency or organization shall appraise an investor selection plan within 20 days after receiving all relevant documents of the bid solicitor.

2. A competent person shall consider and approve an investor selection plan within 15 days after receiving an appraisal report of the appraising agency or organization.

B. PREPARATION FOR INVESTOR SELECTION

Article 25. Formation of a team of bidding experts

1. Conditions for an individual who joins a team of bidding experts:

a/ Possessing a bidding training certificate;

b/ Being knowledgeable about the investment law and professionally qualified to meet project requirements;

c/ Having worked for at least 3 years in the relevant professional field:

d/ Having a good command of foreign languages as required (in case of international open bidding).

2. Formation of a team of bidding experts:

a/ The bid solicitor shall decide to form a team of bidding experts. In case of shortage of qualified personnel, the hid solicitor may invite experienced and capable experts to join the team:

b/ In case of necessity, the bid solicitor may select a consultancy organization to perform all tasks of a team of bidding experts. The consultancy organization shall decide to set up a team of bidding experts and notify such to the bid solicitor before the bid opening.

3. Tasks of a team of bidding experts:

A team of bidding experts shall perform one or all of the following tasks:

a/ Making prequalification invitation dossiers, bidding dossiers or requirement dossiers:

b/ Evaluating prequalification invitation dossiers, bidding dossiers or requirement dossiers and making an evaluation report:

c/ Other tasks as requested by the bid solicitor.

Article 26. Application of prequalification

Based on the size, characteristics and specific conditions of each project, competent persons shall decide on application of prequalification procedures which must be approved in investor selection plans.

Article 27. Order of prequalification

1. Making of prequalification invitation dossiers:

A prequalification invitation dossier comprises:

a/ Guidance information for investors (including the principal content of the project and instructions for investors to participate in prequalification):

b/ Required conditions for in bidders as specified in Clause 2. Article 15 of this Circular:

c/ Standards on capability and experience of investors which shall be applied depending on the characteristics and size of the project and specified in prequalification invitation dossiers, including the following principal standards:

- Standards on experience, including requirements on project engineering, construction, operation and management (for a partnership bidder, investor experience shall be total experience of all partnership members):

- Standards on capability, including requirement on equity of investors under Article 5. of Decree No. 108/2009/ND-CP and Article 6. of this Circular: requirement on capital-raising capability; and requirement on management and business capacity of investors.

Prequalification dossiers shall be evaluated using the criterion "'pass"' or "fail". The standards for evaluation of prequalification dossiers must be stated in prequalification invitation dossiers.

2. Notice of prequalification invitation and issuance of prequalification invitation dossiers:

a/ The bid solicitor shall publish the prequalification invitation in the Dau Thau (Bidding) newspaper for 3 consecutive issues and on the bidding website and the website of the concerned ministry, sector or locality after it is published on the Don Thau newspaper to the last day for submission of prequalification dossiers. A notice of prequalification invitation may be concurrently published in other mass media:

b/ Prequalification invitation dossiers shall be issued free of charge to investors from the date of first publication of the notice of prequalification invitation to the last day for submission of prequalification dossiers (prequalification closing).

3. Receipt and management of prequalification dossiers:

a/ The bid solicitor shall receive prequalification dossiers and manage them as confidential documents. Prequalification dossiers which satisfy the requirements stated in prequalification invitation dossiers shall be publicly opened right after the prequalification closing;

b/ Prequalification dossiers received after the prequalification closing shall be regarded as invalid and shall not be opened. The bid solicitor is not responsible for late submitted prequalification dossiers if investors fail to receive back these dossiers within 10 days after the prequalification closing date.

4. Opening and evaluation of prequalification dossiers:

Right after the prequalification closing, the team of bidding experts shall open and evaluate prequalification dossiers according to the standards on capability and experience slated in prequalification invitation dossiers.

5. Approval of prequalification results:

The team of bidding experts shall submit to the head of the bid solicitor for approval prequalification results based on the report on appraisal of prequalification results of the appraising agency or organization.

6. Notification of prequalification results:

After approving in writing prequalification results, the bid solicitor shall notify such in writing to investors having participated in the prequalification and invite qualified investors to participate in the bidding.

Article 28. Making of bidding dossiers or requirement dossiers

1. Grounds for making bidding dossiers or requirement dossiers:

a/ The list of projects announced by the ministry, sector or provincial-level People’s Committee;

b/ The feasibility study report and approved investor selection plan:

c/ Other documents of the Government, the Prime Minister, ministries, sectors and provincial-level People's Committees relevant to the project implementation policy (if any).

2. Contents of a bidding dossier or requirement, dossier:

a/ A bidding dossier or requirement dossier shall be made under the guidance in Appendix I to this Circular and must indicate the prerequisites for rejecting a bid dossier or proposal dossier after considering the following cases:

- The investor is not on the list of investors purchasing bidding dossiers or requirement dossiers (for a partnership bidder, only the name of the partnership member purchasing the dossier is required);

-The investor is unqualified for participating in the bidding under Clause 2. Article 15 of this Circular;

- The investor provides no bid security or provides an invalid bid security (of a value lower than required, not in the required currency, of a validity duration shorter than required, submitted not to the right address and within the time limit stated in the bidding dossier, indicating the name of the investor not in accordance with Clause 4, Article 19 of this Circular or the incorrect name of the project, or having no original of and no valid signature in the guarantee letter for a bank or credit institution);

- The investor fails to submit the original bid dossier or proposal dossier;

- The bid application is invalid (indicating the incorrect name of the investor or the project, bearing no signature of the lawful representative of the investor or no stamp in case a stamp is required by law);

- The validity of the bid dossier or proposal dossier fails to meet the requirement in the bidding dossier or the requirement dossier;

- The investor is named in two or more bid dossiers (for open bidding);

- Other prerequisites suitable to the objectives and characteristics of each project.

b/ For BT projects to be implemented by assigning other projects to investors, a bidding dossier or requirement dossier must contain a l:2,000-scale detailed construction plan of the land lot reserved for implementation of another project which shall serve as a basis for the investor to propose its ideas of construction investment, commercial operation and management in order to assure the optimal use efficiency of the land lot or total land area in terms of land area, land use coefficient and land use space planning.

3. Standards for evaluation of bid dossiers or proposal dossiers:

Standards for evaluation of bid dossiers or proposal dossiers shall be specified in bidding dossiers or requirement dossiers to suit the objectives, characteristics and size of the project. For BT projects, bidding dossiers or requirement dossiers must specify the standards for evaluation of bid dossiers or proposal dossiers of investment projects on construction of BT works and other projects (in case of assignment of other projects to investors).

Principal standards for evaluation include:

a/ Standards for evaluation of capability and experience of investors:

- For projects for which prequalification has been conducted, bidding dossiers are not required to specify standards for evaluation of capability and experience already indicated in prequalification invitation dossiers but investors are required to re-confirm and update information on their capability and experience declared in prequalification dossiers;

- For projects which do not require prequalification, standards for evaluation of capability and experience of investors shall be applied under Point c, Clause 1, Article 27 of this Circular.

b/ Standards for technical evaluation:

Based on standards for technical evaluation set by ministries or sectors for each specific domain or project, standards for technical evaluation include the following basic requirements:

- Requirement on ground clearance and resettlement (if any) suitable to the project implementation schedule;

- Preliminary requirement on technical solutions and measures to organize construction and manage construction works:

- Requirement on quality of works, maintenance, regular repair, warranty and maintenance of normal operation of works before and after handover;

- Requirement on project implementation schedule: deadlines for construction, operation and transfer of project works (for BOT and BTO projects):

- Requirement on quality of goods or services provided when project works are put into commercial operation (for BOT and BTO projects);

- Socio-economic efficiency, environmental protection, fire and explosion prevention and fighting, and security and defense maintenance;

- Requirement on risk sharing between the investor and the Stale;

- Requirement related to the implementation of other projects (conformity of other projects with approved plans, deadline for completion of l:500-scale detailed construction plans, schedule for approval and implementation of other projects);

- Other standards suitable to the characteristics and size of each project.

c/ Standards for financial evaluation;

Based on standards for evaluation set by ministries or sectors for each specific domain or project, standards for financial evaluation include the following basic requirements:

- Feasibility of the raising of capital for project implementation:

- Prices and charge rates of goods and services: principle and formula for adjusting prices and charge rates of goods and services;

- Form of investment incentives and government guarantee (if any).

For BT projects, in addition to the above appropriate requirements, bidding dossiers or requirement dossiers must specify conditions on payment to investors.

In case of assignment of other projects to investors, bidding dossiers or requirement dossiers must specify standards for evaluation of total investment capital for construction of BT works and the value of land use rights of land lots for implementation of other projects, in which:

- The value of land use rights of land lots for implementation of other projects shall be calculated based on land prices proposed by investors.

- Land prices of land lots for implementation of other projects proposed by- investors are not lower than land prices indicated in bidding dossiers. Land prices indicated in bidding dossiers must not be lower than land prices promulgated by provincial-level People's Committees and shall be determined on the principle of being close to actual prices of transfer of land use and lease rights, under normal conditions of localities, of the most adjacent land lots with the use purpose identical to the new use purpose of land lots indicated in bidding dossiers.

- Total investment capital for construction of BT works proposed by investors is not higher than prices indicated in bidding dossiers.

4. Methods of evaluation of bid dossiers or proposal dossiers:

a/ Evaluation of capability and experience:

Capability and experience of investors shall be evaluated using the cirterion "pass" or "fail".

b/ Technical evaluation:

- Technical evaluation shall be conducted according to "pass" and "fail' criteria. For contents being basic requirements of bidding dossiers or requirement dossiers, either the criterion "pass'" or "fail" shall be used. For contents other than basic requirements. in addition to the criterion "pass" or "fail", the criterion "'acceptable" may be used for no more than 30% of total requirements in evaluation standards. Bid dossiers or proposal dossiers shall be evaluated as satisfying technical requirements when all their basic requirements are evaluated as "pass" while non-basic requirements are evaluated as "pass" or "acceptable";

- In case of necessity, a point scale of 100 or 1.000 may be used in technical evaluation, provided the proportion of points for each of the about contents to the total points. Bid dossiers or requirement dossiers must set the minimum requirement for each general standard, which must not be lower than 50% of maximum points of each general standard. Investors shall be evaluated as pass by the marking method when having the number of points not lower than the minimum requirement of 70% of total points. For large-sized and complicated projects, the minimum requirement is 80% of the total points and the number of points for each general standard is not lower than the minimum requirement.

5. Organization of conferences for exchange on opinions on preliminary bidding dossiers:

a/ For large-sized and complicated projects, the head of the bid solicitor shall consider and approve in principle preliminary bidding dossiers for issuance to registering bidders:

b/ Based on preliminary bidding dossiers already approved in principle, the bid solicitor shall organize a conference with investors to exchange opinions on and clarify contents of preliminary bidding dossiers and affirm the requirements in these dossiers. Contents discussed and clarification at the conference must be recorded in writing by the bid solicitor to serve as a basis for completion of official bidding dossiers.

Article 29. Submission, appraisal and approval of bidding dossiers or requirement dossiers

Appraising agencies or organizations shall appraise bidding dossiers or requirement dossiers before submitting them to heads of solicitors for consideration and decision.

Article 30. Bid invitation

1. Sending of bid invitations:

The bid solicitor shall send bid invitations to investors on the list of qualified investors. The period from the dale of sending bid invitations to the date of issuing bidding dossiers must be at least 5 days for domestic open bidding and 10 days for international open bidding.

2. Notification of bid invitation:

For open bidding not requiring prequalification, the bid solicitor shall have a notice of bid invitation published in the Dan Thau newspaper for 3 consecutive issues and on the bidding website and the website of the concerned ministry, sector or locality from the dale of publication in the Dau Thau newspaper to the last day for submission of bid dossiers. In addition to publication at prescribed above, notices of bid invitation may also be published in other mass media.

C. ISSUANCE OF BIDDING DOSSIERS OR REQUIREMENT DOSSIERS AND RECEIPT OF BID DOSSIERS OR PROPOSAL DOSSIERS

Article 31. Issuance of bidding dossiers or requirement dossiers

1. The bid solicitor shall sell bidding dossiers or requirement dossiers from the date of issuance of the dossier to the time of bid closing as indicated in bidding dossiers or requirement dossiers. For a bidding partnership, only a member to the partnership is required to purchase bidding dossier or requirement dossier.

2. If bidding dossiers or requirement dossiers need to be modified or supplemented after their issuance, at least 15 days before the time of bid closing the bid solicitor shall send modification • or supplementation documents to investors that have purchased these dossiers. Documents on modifications or supplementations to bidding dossiers or requirement dossiers must be approved by the head of the bid solicitor before being sent to investors and constitute a part of bidding dossiers or requirement dossiers.

Article 32. Clarification of bidding dossiers or requirement dossiers

1. In the course of preparing bid dossiers or proposal dossiers, investors may send to the bid solicitor written requests for explanation of unclear contents of bidding dossiers or requirement dossiers.

2. Upon receiving requests of investors, the bid solicitor shall clarify bidding dossiers or requirement dossiers by any of the following modes:

a/ Organizing conferences for exchange of opinions on and clarification of bidding dossiers or requirement dossiers:

The bid solicitor shall organize a conference with investors to exchange opinions, explain and clarify contents of bidding dossiers or requirement dossiers. Exchanged opinions must be recorded in writing by the bid solicitor and issued to investors (present al or absent from the conference). This written record constitutes a part of bidding dossiers or requirement dossiers.

b/ Sending documents to investors to clarify bidding dossiers or requirement dossiers:

The bid solicitor shall issue a document to explain or clarify bidding dossiers or requirement dossiers to all investors that have received these dossiers. This document constitutes a part of bidding dossiers or requirement dossiers.

Article 33. Preparation and submission of bid dossiers or proposal dossiers

1.. Based on bidding dossiers or requirement dossiers, investors shall prepare bid dossiers or proposal dossiers and submit them to the bid solicitor within the time limit and to the address indicated in bid dossiers or proposal dossiers

2. Bid dossiers submitted after the bid closing shall be regarded as invalid and will not be opened for evaluation. In this case, the bid solicitor shall return bid dossiers unopened to investors at the dossier-receiving place and take no responsibility for late submitted dossiers if investors do not receive back these dossiers within 10 days after the bid closing.

3. When wishing to withdraw, modify or replace their submitted bid dossiers or proposal dossiers, investors shall make written requests therefor. The bid solicitor may accept these request only if receiving them from investors before the bid closing.

Article 34. Receipt of bid dossiers or proposal dossiers

Bid dossiers or proposal dossiers which are properly submitted shall be received and managed by the bid solicitor as "confidential" documents.

D. EVALUATION OF BID DOSSIERS OR PROPOSAL DOSSIERS

Article 35. Evaluation of bid dossiers

1. Opening of technical proposal dossiers:

a/ Technical proposal dossiers shall be publicly opened right after the bid closing at the time and place indicated in bidding dossiers in the witness of present persons and regardless of whether invited investors are present or not. The bid solicitor may invite representatives of concerned agencies to the bid opening ceremony;

b/ The bid solicitor shall open one by one technical proposal dossiers of each investor on the list of investors purchasing bidding dossiers and submitting bid dossiers before the bid closing according to alphabetical order of the names of investors:

c/ The bid opening steps include checking the seals of the bid dossier: opening the dossiers, leading and recording in the bid opening minutes the following principal details:

- Number of investors that have purchased bidding dossiers (for open bidding):

- Names of investors submitting bid dossiers;

- Quantities of originals and copies of technical proposal dossiers:

- Validity duration of technical proposal dossiers;

- Form, value and validity duration of the bid security;

- Written requests for modifying bid dossiers (if any):

- Other relevant information.

The bid opening minutes must be signed for certification by the representative of the bid solicitor and attending representatives of investors and concerned agencies and sent to all investors that have submitted bid dossiers, regardless of whether they are present at the bid opening ceremony or not.

d/ After the bid opening, the bid solicitor shall sign on each page of each original bid dossier and manage it as a "confidential" document. The evaluation of bid dossiers shall be conducted on their copies. Investors shall take responsibility for the accuracy of and consistence between the copies and originals, and the seals of bid dossiers.

2. Preliminary evaluation:

a/ Evaluation according to the prerequisites indicated in bidding dossiers:

Bid dossiers of investors shall be rejected and not be considered in the subsequent steps if they breach any prerequisite indicated in bidding dossiers.

b/ Evaluation of capability and experience of investors according to evaluation standards indicated in bidding dossiers:

Investors that are evaluated as qualified in terms of capability and experience shall be transferred to the stage of detailed technical evaluation.

3. Detailed technical evaluation:

Detailed technical evaluation shall be conducted according to standards for technical evaluation indicated in bidding dossiers.

4. Opening and evaluation of financial proposal dossiers:

a/ Opening of financial proposal dossiers:

The bid solicitor shall send invitations to investors on the list of investors satisfying technical requirements to attend the financial proposal dossiers-opening ceremony. The order of opening financial proposal dossiers complies with Points b and c. Clause 1 of this Article.

A minutes of opening of financial proposal dossiers must contain the following principal details:

- Names of investors satisfying technical, requirements:

- Quantity of originals and copies of financial proposal dossiers:

- Validity duration of financial proposal dossiers;

- Prices of goods or charge rates of services indicated in bid applications (for BOT or BTO projects) or total investment capital for construction of BT works or conditions on cash payment or investors' proposals on implementation of other projects (for BT projects):

- Proposed investment incentives and supports and government guarantee (if any):

- Other relevant information.

After the bid opening, the bid solicitor shall sign on each page ol' each investor's original financial proposal dossier and manage it as a ''confidential" document.

b/ Financial evaluation:

The financial evaluation shall be based on standards for financial evaluation indicated in bidding dossiers.

Article 36. Evaluation of proposal dossiers

1. The preliminary evaluation of proposal dossiers shall be conducted according to the order and procedures specified in Clause 2. Article 35 of this Circular.

2. Technical and financial evaluation shall be conducted according to evaluation standards indicated in requirement dossiers.

Article 37. Clarification of bid dossiers or proposal dossiers

1. Clarification of bid dossiers:

a/ In the course of evaluating bid dossiers, the bid solicitor may request in writing investors to clarify bid dossiers or exchange opinions directly with investors. Exchanged opinions shall be recorded in writing and constitute a part of bid dossiers:

b/ Investors may not supplement on their own initiative their submitted bid dossiers, except for clarification of documents requested by the bid solicitor.

In case bid dossiers lack documents evidencing the eligibility, capability and experience of investors, the bid solicitor shall request these investors to add those documents, but not to change their financial proposals. The clarification of bid dossiers may not change the nature of submitted bid dossiers.

2. Clarification of proposal dossiers:

a/ The bid solicitor may request in writing investors to clarify proposal dossiers or exchange opinions directly with investors to clarify contents of proposal dossiers:

b/ Investors may add documents 10 complete their proposal dossiers but shall guarantee the truthfulness of the information provided and may not untruthfully declare their capability and experience and modify and supplement financial proposals in their proposal dossiers.

Article 38. Principles of selection of investors

1. For projects subject to open bidding, selected investors must fully satisfy the following conditions:

a/ Having a valid bid dossier:

b/ Satisfying the capability and experience requirement:

c/ Satisfying the technical requirement:

d/ Satisfying the financial requirement on the principle specified in Clause 2 of this Article.

2. Depending on the objectives, characteristics and size of projects, bid solicitors may choose any of the follow ins principles to be indicated in bidding dossiers as a basis for consideration and selection of investors:

a/ For a BOT or BTO project, investors must propose:

- The lowest goods price or service charge rate (in case the duration of operation and transfer of the project work has been determined):

- The shortest duration of work operation and transfer (in case the goods price or service charge rate has been determined):

In case the duration of operation and transfer of the project work and goods price or service charge rate have not yet been determined, the bid solicitor shall determine a formula for converting them to the same plane for investor selection.

b/ For BT projects:

- Case of cash payment:

Total investment capital for construction of BT works proposed by an investor which is evaluated as the lowest on the same plane of payment conditions.

- Case of assignment of oilier projects to investors:

Investors shall be selected on the basis of evaluation of both their proposals on total investment capital for construction of BT works and proposals on the value of land use rights of land plots reserved for other projects. Selected investors must be those proposing the biggest difference between the value of land use rights of land lots for other projects and the total investment capital for construction of BT works.

3. Investors selected through contractor designation must satisfy the requirements indicated in requirement dossiers and requirements in the course of negotiation on project contracts.

F. SUBMISSION APPRAISAL. APPROVAL AND NOTIFICATION OF RESULTS OF INVESTMENT SELECTION

Article 39. Submission, appraisal and approval of investor selection results

1. The bid solicitor shall make and send a report on investor selection results to the competent person and concurrent I \ to the appraising agency or organization. Based on reports on investor selection results and appraisal of investor selection results, the competent person shall consider and approve investor selection results.

The appraising agency or organization shall appraise and make a report on appraisal of investor selection results, containing (he following details: legal grounds, process of implementation, evaluation results, agreement or disagreement (clearly slating the reason) with (he bid solicitor's proposal.

The appraisal is not the re-evaluation of bid dossiers or proposal dossiers. Agencies, organizations or individuals that directly perform the appraisal shall assure their objectiveness and honesty in the course of appraisal, and may reserve their opinions.

2. Based on the presentation of the solicitor and the appraisal report of the appraising agency or organization, the competent person shall approve investor selection results.

A document approving investor selection " results contains the following details:

a/ Name of the project;

b/ Location, size and total investment capital of the project;

c/ Selected investor;

d/ Deadlines for construction commencement and completion, operation and transfer of the project work(s);

e/ Conditions for land use to implement another project (location, area, land use purpose and duration), schedule for completion of approval of the 1:500-scale detailed construction plan and schedule for approval and implementation of another project;

f/ Noteworthy contents (if any).

Article 40. Notification of investor selection results

After obtaining (he approval decision of the competent person, the bid solicitor shall notify investor selection results according to the folIowing procedures:

1. Sending a written notice of investor selection results to participating investors (for the selected investor, such a notice must be enclosed with a draft of the project contract prepared in accordance with the feasibility study report, bidding dossier or requirement dossier).

2. Sending information on investor selection results for publication on the Dau Thau newspaper within 7 days after the date of issuance of the decision approving investor selection results.

Section 3: NEGOTIATION OF PROJECT CONTRACTS

Article 41. Preparation of negotiation plans and contents

1. Based on bidding dossiers, requirement dossiers, bid dossiers, proposal dossiers and approved investor selection results, the team of bidding experts shall prepare a plan and contents for negotiation, then submit them to a competent state agency and send them to the selected investor.

2. Within 7 days after receiving the negotiation request, the investor shall notify in writing the competent state agency of its consent to negotiation of the project contract.

Article 42. Organization of negotiations

1. The competent state agency shall assume the prime responsibility for the negotiation of the project contract and agreement on government guarantee (it any) with the selected investor. For projects requiring government guarantee, ministries, sectors or provincial-level People's Committees shall submit guarantee requirements to the Prime Minister for consideration and approval before the negotiation of project contracts.

2. Project contracts subject to negotiation must be consistent with the contents of feasibility study reports, bidding dossiers or requirement dossiers.

3. Depending on project implementation requirements, contracts related to the project implementation (land lease, construction, installation of machines and equipment, consultancy and assessment services, purchase of materials, sale of products or services, management, operation and maintenance of works, provision of technical services, borrowing, pledge or mortgage of assets and other relevant contracts) may be negotiated concurrently with the negotiation of the project contract.

The competent state agency may directly participate in or urge the negotiation of contracts related to the project implementation to assure its conformity with the project contract.

4. If the negotiation is successful, the competent state agency and the investor shall sign the minutes certifying results of negotiation and initial in the project contract.

If the negotiation is unsuccessful, the competent state agency shall cancel investor selection results and approve the investor next in rank for negotiation of the project contract.

Chapter IV

PROJECT CONTRACTS AND RELATED CONTRACTS

Article 43. Contents of a project contract and related contracts (Article 16 of Decree No. 108/ 2009/ND-CP)

1. Basic contents of a project contract are specified in Appendix II to this Circular (not printed herein). Depending on the objectives, scope and contents of the project, the competent state agency and the investor (below referred to as the parties) may agree upon other contents which are not contrary to Decree No. 108/2009/ ND-CP, this Circular and relevant legal documents.

2. Contents of contracts related to the project implementation shall be agreed upon by the parties in conformity with the project contract and current laws.

3. The parties may agree upon documents to be enclosed with the project contract, including annexes, documents and other papers to certify or detail contents of the project contract. Enclosed documents constitute an integral part of the project contract.

Article 44. Right to receive projects (Article 17 of Decree No. 108/2009/ND-CP)

1. When exercising the right to receive a project under Article 17 of Decree No. 108/ 2009/ND-CP the lender may continue implementing the project or transfer it to another investor.

2. The investor receiving the transferred project must satisfy all the conditions specified in Clause 3. Article 48 of this Circular.

3. The competent state agency, the investor, the project enterprise, the lender and the investor receiving the transferred project may agree to modify the project contract and carry out procedures for modification of the investment certificate under Article 48 of this Circular.

Article 45. Transfer of rights and obligations under project contracts (Article 18 of Decree No. 108/2009/ND-CP)

1. An investor (the transferor) may transfer part or the whole of his/her/its charter capital portion in the project enterprise to another investor (the transferee). If receiving the whole charter capital of the project enterprise, the transferee shall inherit all the rights and obligations of the transferor under the project contract and related contracts. If receiving part of the charter capital. the transferee will be a party participating in the implementation of the project contract and related contracts together with the transferor.

In case an income is earned from the transfer -of charter capital, the transferor shall fulfill the tax obligation under the enterprise income tax law.

2. The transferor must fully satisfy the following conditions;

a/ Having fully contributed its share of equity to the project enterprise according to the schedule committed in the project contract:

b/ Having the commitment of the lender or another donor to continued financing for the project implementation;

c/ Conditions on transfer of capital contributions under the enterprise law.

3. The transferee must fully satisfy the following conditions:

a/ Being financially, technically and managerially capable for implementing the

project contract and related contracts;

b/ Committing to further fully exercising the rights and performing the obligations of the transferor under the project contract and related contracts.

4. In the course of negotiation of the transfer contract, the transferor shall continue fully exercising the rights and performing the obligations under the project contract.

5. The competent state agency shall consider and approve the transfer contract and conditions specified in Clauses 2. 3 and 4 of this Article.

The transfer contract will be valid only after the investment certificate-granting agency grants the modified investment certificate under Clause 8 of this Article.

6. After the transfer contract is approved, the competent stale agency, the transferor and the transferee shall agree to modify the project contract and make and send a dossier of request for modification of the investment certificate to the investment certificate-granting agency.

7. In addition to the contents specified in Clause 2. Article 48. a dossier of request for modification of an investment certificate must the contain a transfer contract and a document certifying the legal status (a copy of the establishment certificate or another paper of equivalent validity) of the transferee.

8. The process of examination for modification of investment certificates complies with relevant provisions of Clause 4. Article 47 of this Circular on examination for grant of investment certificates.

Chapter V

PROCEDURES FOR GRANTING INVESTMENT CERTIFICATES AND IMPLEMENTING PROJECTS

Article 46. Investment certificate-granting agencies (Article 24 of Decree No. 108/2009/ ND-CP)

1. Projects falling under the investment certificate-granting competence of the Ministry of Planning and Investment under Point c. Clause 1. Article 24 of Decree No. 108/2009/ ND-CP are those to be implemented in two or more provinces and centrally run cities.

2. Provincial-level People's Committees shall grant investment certificates to projects not specified in Clause 1. Article 24 of Decree No. 108/2009/ND-CP and other projects.

Article 47. Dossiers, order and procedures for examining dossiers and granting investment certificates (Article 25 of Decree No. 108/2009/ ND-CP)

1. Agencies receiving dossiers of application for investment certificate:

a/ The Ministry of Planning and Investment shall receive and examine dossiers of application for investment certificate (below referred to the project dossier) for the projects specified in Clause 1. Article 24 of Decree No. 108/2009/ ND-CP;

b/ Provincial-level Planning and Investment Departments shall receive project dossiers specified in Clause 2, Article 24 of Decree No. 108/2009/ND-CP.

2. Contents of project dossiers:

a/ Project dossiers shall be made under Clause 2. Article 25 of Decree No. 108/2009/ ND-CP. The draft contract and other agreements related to the implementation of a project (if any) must be enclosed with the project contract.

b/ Other projects must, have separate dossiers to be enclosed with the dossier of the project on construction of BT works;

c/ The agency receiving project dossiers shall check the validity of these dossiers and request investors to supplement their dossiers (when necessary) within 5 working days after receiving the dossiers.

3. Examined contents:

a/ In addition to the examined contents of a project specified in Clause 3. Article 25 of Decree No. 108/2009/ND-CP the investment certificate-granting agency shall examine the contract and other agreements related to the project implementation (if any);

b/ For 13T projects, the examination of other projects or conditions of payment to investors shall be conducted concurrently with the examination of projects on construction of BT works.

For BT projects mentioned at Point a. Clause 1 of this Article, when examining investment projects on construction of BT works, the Ministry of Planning and Investment shall consider the basic principles for payment conditions or conditions of implementation of other projects. Provincial-level People’s Committees shall carry out procedures for examination and grant of investment certificates for other projects.

4. Process of examination for grant of investment certificates:

a/ For projects falling under the investment certificate-granting competence of the Ministry of Planning and Investment:

- Within 3 working days after receiving a valid project dossier as specified in Clause 2 of this Article, the Ministry of Planning and Investment shall send a document to seek opinions of concerned ministries, sectors and localities (below referred lo as concerned agencies);

- Within 15 working days after receiving a project dossier, concerned agencies shall send lo the Ministry of Planning and Investment their written examination opinions on issues under their management;

- Within 10 working days after receiving examination opinions of concerned agencies, the Ministry of Planning and Investment shall send to investors written requests for modifications or supplementations or clarification of issues in the project contract (if any);

- Within 10 working days after receiving the requests, investors shall send to the Ministry of Planning and Investment the modified or supplemented projects or written explanation? about the contents of project contracts (if any);

- Within 7 working days after receiving written explanations of investors, the Ministry of Planning and Investment shall consider the modifications or supplementations lo project contracts and related explanations. In case the modifications or supplementations are unsatisfactory, (he Ministry of Planning and Investment shall request in writing investors to make explanations. An investment certificate shall be granted only after the project contract is modified or supplemented as requested by the Ministry of Planning and Investment.

b/ For projects falling under the investment certificate-granting competence of provincial-level People's Committees;

- Within 3 working days after receiving a valid project dossier under Clause 2 of this Article, the provincial-level Planning and Investment Department shall send a document to seek opinions of concerned departments, divisions and sectors (for projects of group A. projects requiring government guarantee, projects requiring the use of the central budget capital for payment to or provision of supports for investors, in addition to collecting opinions of local departments, divisions and sectors, the provincial-level Planning and Investment Department shall seek examination opinions of the Ministry of Planning and Investment, concerned line ministries and localities, if any);

- Within 15 working days after receiving the project dossier, concerned agencies shall examine the issues under their management;

- Within 10 working days after receiving examination opinions of concerned agencies, the provincial-level Planning and Investment Department shall send lo the investor a written request for modification or supplementation or clarification of issues in the project contract (if any);

- Within 10 working days after receiving the request, the investor shall send lo the provincial-level Planning and Investment Department the modified or supplemented project contract or written explanations about contents of the project contract (if any);

- Within 7 working days after receiving written explanations of the investor, the provincial-level Planning and Investment Department shall consider (he modifications or supplementations to the project contract and related explanations. In case the modifications or supplementations are unsatisfactory, the provincial-level Planning and Investment Department shall request in writing the investor to make explanations. Based on the draft project contract modified or supplemented as requested.

the provincial-level Planning and Investment Department shall make and send an examination report to the provincial-level People's Committee for consideration and decision on grant of an investment certificate to the investor.

5. Within 7 working days after the dale of official signing of the project contract, the investor shall send the project contract to the investment certificate-granting agency for keeping and monitoring.

The investor and the competent state agency shall take responsibility for the accuracy and truthfulness of the officially signed project contract and contents modified or supplemented at the request of the project-examining agency.

6. An investment certificate has the contents specified in forms No. 3 and No. 4 provided in Appendix III to this Circular (not printed hernia). The grant of investment certificates to other projects complies with the investment and construction laws and relevant legal documents.

Article 48. Dossiers, order and procedures for modifying investment certificates

1. Investors shall carry out procedures for modifying their investment certificates in the cases specified in Articles 17. 18. 19 and 20 and other cases of change in the contents of project contracts which change the contents of the granted investment certificates.

2. A dossier of request for modification of investment certificate:

The investor shall submit 10 dossier sets, including at least one original, to the project dossier-receiving agency. Such a dossier comprises:

a/ A request for modification of the investment certificate (made according to form 5. Appendix III to this Circular) (not printed herein):

b/A report on implementation of the project by the time of filing the request;

c/ A copy of the investment certificate;

d/ An agreement on modification or supplementation of the project contract (if any);

e/ Legal dossier (including a copy of the establishment certificate or papers of equivalent validity).

3. Examination process:

The order, procedures and contents of examination for modification of investment certificates comply with relevant provisions of Clauses 3 and 4? Article 47 of this Circular on examination for grant of investment certificates.

Article 49. Establishment and management of project enterprises (Article 27 of Decree No. 108/2009/.ND-CP)

1. For domestic investment projects, investors shall carry out enterprise registration procedures for establishing new project enterprises under the enterprise law.

2. For foreign investment projects, investment certificates granted to foreign investors are also business registration certificates of project enterprises.

3. For a project enterprise having different members or shareholders, its founding members or shareholders must be investors that have signed project contracts with the competent state agency.

4. Project enterprises shall operate in conformity with the project contracts, investment certificates and business registration certificates granted under Clause I or 2 of this Article. BT enterprises may concurrently implement other projects.

Article 50. Selection of contractors for project implementation (Article 29 of Decree No. 108/2009/ND-CP)

1. For projects which have slate capital accounting for 30% or more of their total investment capital (including equity and loans). the selection of consultancy, goods provision and construction contractors must comply with the bidding law and relevant legal documents. In this case, heads of project enterprises shall approve bidding plans based on the written approval of the competent state agency.

2. Project enterprises shall decide by themselves in the selection of contractors to implement projects not specified in Clause 1 of this Article and other projects.

Article 51. Elaboration of technical designs, project work supervision and takeover test (Article 31 of Decree No. 108/2009/ND-CP)

1. Project enterprises shall elaborate and approve technical designs under the construction law. The competent state agency shall inspect and supervise the implementation of technical designs of project works to assure their conformity with feasibility study reports and conditions agreed upon in project contracts. Any change in technical designs in the course of elaboration and implementation as compared with feasibility study reports must be submitted to the competent state agency for consideration and decision.

2. The BT work construction supervision and takeover test shall be conducted according to the procedures applicable to state-funded projects.

Article 52. Final settlement of project works (Articles 35.36 and 37 of Decree No. 108/2009/ ND-CP)

The final settlement of project works before they arc transferred under Articles 35, 36 and 37 of Decree No. 108/2009/ND-CP complies with the Ministry of Finance's guidance.

Article 53. Summarization and evaluation of project implementation (Clause 8. Article 46 of Decree No. 108/2009/N D-CP)

1. The Ministry of Planning and Investment shall summarize, supervise and generally evaluate the project implementation under Clause 8. Article 46 of Decree No. 108/2009/ND-CP and the Government's regulations on investment supervision and evaluation.

2. Ministries, sectors, provincial-level People's Committees and investors shall supervise and evaluate investment activities under the Government's regulations on investment supervision and evaluation.

Chapter VI

IMPLEMENTATION PROVISIONS

Article 54. Effect

This Circular takes effect on April 1. 2011

Article 55. Transitional provisions

I. Investors that are granted investment certificates under Decree No. 108/2009/ND-CP before the effective date of this Circular may continue implementing the projects under this Decree, project contracts and investment certificates.

2. Projects for which bidding dossiers or requirement dossiers are approved before the effective date of this Circular are encouraged 10 carry out the procedures for investor selection under this Circular.

Projects for which bidding dossiers or requirements are approved after the effective date of this Circular must comply with this Circular's provisions on investor selection.

3. For oilier cases, ministries, sectors and provincial-level People's Committees shall notify them in writing to the Ministry of Planning and Investment for further consideration and guidance.

Article 56. Organization of implementation

1. Ministries and sectors shall develop systems of standards for- evaluation of bid dossiers or proposal dossiers suitable to the objectives, characteristics and sizes of projects under their management to serve as a basis for bid solicitors to promulgate standards for evaluation of each specific project, which must include the principal evaluation standards specified in this Circular.

Pending the promulgation of standards for evaluation of bid dossiers or proposal dossiers, bid solicitors shall make bidding dossiers or requirement dossiers based on this Circular.

2. In case bid solicitors select investors on principles different from those specified in this Circular but assure the highest competitiveness and efficiency, they may apply these principles and take responsibility before law for their decisions. Within 10 working days after approving bidding dossiers or requirement dossiers, bid solicitors shall send these dossiers to the Ministry of Planning and Investment for monitoring and management.

3. The handling of incidents, filing and settlement of petitions, handling of violations of the bidding law may apply die bidding law.

4. Any problems arising in the course of implementation of this Circular should be promptly reported by ministries, sectors, provincial-level People's Committees and investors to the Ministry of Planning and Investment for further study and guidance.-

SCHEDULE I

FORMS APPLIED IN THE SELECTION OF THE INVESTOR
(Issued together with Circular No. 03/2011/TT-BKH of the Ministry of Planning and Investment dated 27/01/2011)

FORM NO. 1

REGISTRATION OF IMPLEMENTATION OF THE PROJECT

To: ........... (specify name of the Authorised State Body)

After studying the List of projects publicised on ........... in ........... (specify the publication date and means of publication), we:

Name of the Investor: ................................................................................................................

Nationality: ................................................................................................................................

Address: ...................................................................................(specify the head office address)

Mailing address: ...................; Tel: .....................; E-mail: .... ......................................................

would like to register for participating in the Project ……………….. (Specify the name of the

Project and its ordinal number publicized in the List of Projects).

Note:

In the case of partnership participating in tendering, specify the name/nationality of all members of the partnership; in the case of international tender, specify the nationality of the Investor.

FORM NO. 2

MATERIALS PROVIDING GUIDELINES ON FORMULATION OF TENDER INVITATION DOCUMENTS AND SET OF REQUESTS

PART I. REQUIREMENTS ON PROCEDURES FOR SELECTION OF INVESTOR

1. Guidelines for the Investor

1.1. Overview

1.2. Preparation for the Tenders or Set of Proposals

1.3. Submission of the Tenders

1.4. Assessment of the Tender or Set of Proposals

1.5. Consideration and approval of the Investor

2. Data table

The data table shall consist of the Project’s detailed information on respective items stated in the Guidelines for the Investor.

3. Standards for assessment

The assessment standards shall be developed as stipulated in Clause 3, Article 28, and Chapter III of this Circular.

4. Tender forms

PART II. REQUIREMENTS OF THE PROJECT

Determining the objective, scope, location, technical standards, total investment capital and other requirements relating to the implementation of the Project and other Projects (for BT Projects) which are in line with the Feasibility Study Report of the Project facilities and other Projects.

PART III. REQUIREMENTS ON THE CONTRACT

The project contract shall consist of the contents as stipulated in Article 43, Schedule II of this Circular and other relevant contracts (if any).

SCHEDULE II

BASIC CONTENTS OF THE PROJECT CONTRACT
(Issued together with Circular No. 03/2011/TT-BKH of the Ministry of Planning and Investment dated 27 January 2011)

I. BOT CONTRACT AND BTO CONTRACT

1. Bases for signing of project contract

a. Law on Investment, Law on Construction, Law on Enterprises, Decree No. 108/2009/ND-CP this Circular and the relevant laws, decrees and legal documents;

b. The document approving the Feasibility Study Report and the Decision on selection of investors for negotiation of the project contract;

c. The document approving the planning or policy on implementation of the Project by the relevant bodies (if any);

d. Other necessary documents as agreed between the Parties.

2. Parties to the project contract

a. The authorised State body

- Address:

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

- Legal representative (full name, job title)

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: .....................

- Legal representative (full name, job title)

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

c. The project enterprise (in cases where the project enterprise together with the investor forms a party to the project contract, after the Investment Certificate is issued to the investor and the project enterprise is established in accordance with law, the enterprise’s authorised representative shall sign the project contract).

3. Interpretation

Interpretation of terms, basic concepts must comply with the provisions of Decree No. 108/2009/ND-CP current laws and specific context of the project contract.

4. Purpose of the project contract

The agreement between the authorised State authority's and the Investor/project enterprise on the Project implementation must comply with the provisions of Decree No. 108/2009/ND-CP and specific agreements under this Contract.

5. Objectives, location and duration for the implementation of the Project

a. Describing the objectives/activities, construction location of the project facilities.

b. Term for implementation of the Project; the cases of and conditions for extension or shortening the term (in accordance with specific conditions stated in Item 18, Part I of this Schedule and other relevant provisions).

6. Scope, design solution and technical standards of the project facilities

a. Scope of the project facilities (work items and scope of construction, location, designed capacity, technology and equipment);

b. Design and construction solutions (requirements on survey, construction design, procedures for preparation and approval of the design);

c. Technical standards and quality of the facilities;

d. Rights and obligations of each Party in performance of procedures and meeting the requirements stipulated at points b and c of this Section in compliance with provisions of law and specific agreements between the Parties.

7. Project's investment capital and financial plan

a. Total investment capital and the principle for determining the total investment capital (including the principle for determining estimates of the expenses for investment in and construction of the facilities), of which:

- Equity and equity raising schedule;

- Loan capital and loan raising schedule.

(The total investment capital and equity shall be determined in line with the project implementation schedule and investment stages, if any).

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

c. Conditions for adjusting the total investment capital and equity and handling measures;

d. 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).

8. Conditions for use of land and relevant works

a. Location of the construction works, estimated area of land used for the Project Facilities and relevant works (if any);

b. Time and schedule of land assignment as agreed upon by the parties in line with the work construction schedule;

c. Obligations of the authorised State bodies to assign land in line with the construction schedule and cooperate with the investor/project enterprise to carry out the tasks of site compensation, clearance and resettlement;

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

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

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

g. 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;

h. Other rights and obligations of the authorised State bodies and the investor/project enterprise as expressly agreed upon by the parties in accordance with legislation on land and construction, Decree 108/2009/ND-CP this Circular and relevant legal documents;

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

9. Provisions on 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 investment, construction and the environment.

10. Timeline and construction schedule of the 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 authorised 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, checking, supervision and management of quality, inspection for handover and finalisation 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) Conditions for selection of contractors in the course of construction in compliance with the provisions of tendering legislation, Decree 108/2009/ND-CP and this Circular;

c) The regime for management of quality, supervision and inspection for handover of the work in compliance with the Law 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. 108/2009/ND-CP and guidelines of the Ministry of Finance.

12. Provisions on appraisal, operation, maintenance and commercial exploitation of the Project Facilities

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

b) Rights and obligations of the project enterprise in organising 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 108/2009/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 agreement between the Parties;

d) Rights and obligations of the authorised State authority in checking, 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 authorised State body shall by itself or employ a consulting organisation to appraise the quality of the Facilities before transfer);

b) List of work items, machines, equipment, assets 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 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;

e) Order of and procedure for transfer of the Facilities ;

f) The organisation taking over and managing the Facilities after the transfer.

14. Rights and obligations of each Party

The rights and obligations of each Party in implementing the terms of the Project Contract, the provisions of Decree 108/2009/ND-CP this Circular and relevant legal documents (including the rights and obligations specified in each term of the contract).

15. Investment incentives and warranties applicable to investor/project enterprise

a) Various types of tax, financial obligations, investment incentives (if any) applicable to investor/project enterprise as stipulated in Decree 108/2009/ND-CP this Circular and relevant current legal documents;

b) Investment warranty measures as stipulated in the Law on Investment and Decree No. 108/2009/ND-CP;

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

d) Guarantee committed by the government agency (if any) as stipulated in Article 40 of Decree No. 108/2009/ND-CP.

16. Amendment and/or supplementation of the project contract

a) The circumstances and conditions permitted to amend the provisions of the project contract in accordance with the provisions of Decree 108/2009/ND-CP this Circular and other relevant legal documents (e.g. changes in scale, technical standards, total construction capital; changes in proceeds, time of operation and exploitation; 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 108/2009/ND-CP and this Circular.

17. Transfer of rights and obligations under the Project Contract

a) Order of, conditions and procedures for the investor/project enterprise to transfer part or all of the rights and obligations under the project contract; rights and obligations of the Transferee in accordance with the provisions of Decree 108/2009/ND-CP this Circular and specific agreement 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 Article 17 and Article 18 of Decree 108/2009/ND-CP.

18. Term and termination of the Project Contract

a) Term of the project contract and the conditions for extension or shortening the term of the Project or the Project Contract as stipulated in Article 20 of Decree No. 108/2009/ND-CP and specific agreement between the Parties.

b) Circumstances and conditions for terminating the Project Contract under the agreement or prior to the expiry of the term in accordance with the provisions of Decree 108/2009/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; value and methods of calculating the value of compensation for damages caused by the fault of either Party;

e) Order of and procedures for termination of the Project Contract in the cases mentioned in this Section.

19. 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 following principles:

- The Parties shall be exempted from responsibilities under the Project Contract upon an event of force majeure in accordance with principles stipulated in the Civil Code and the Commercial Law;

- The remedy for an event of force majeure due to change in policy or law shall be made pursuant to the Law on Investment.

20. Dispute resolution

Mechanism for dispute resolution 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. 108/2009/ND-CP this Circular and other relevant legal documents.

21. Law governing the relations of Project Contract and relevant contracts Laws applicable to govern the relations of the Project Contract and contracts relating to the implementation of the Project shall be in accordance with the provisions of the Law on Investment, Decree 108/2009/ND-CP this Circular and relevant legal documents.

22. Language of the project contract

The language used in project contracts, appendices, texts and documents attached thereto and contracts relating to the implementation of the Project (if any); measures to be taken in case of any discrepancies between the Vietnamese version and the foreign version (for foreign-invested projects) shall comply with the provisions of the Laws on Investment.

23. Validity 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 Contracts and BTO Contracts except for the following items, which are stipulated differently.

2. Purpose of the Project Contract

The authorised State body shall:

a) Assign to the investor/project enterprise to implement the project of investment in and construction of the Facilities (name of the Facilities);

b) Assign other Project (project’s name) to the investor/project enterprise for implementation in accordance with the provisions of Article(s) ..... of this

Contract (or pay for the investor/project enterprise as stipulated in Article(s) ….. of this Contract).

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

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

b) Plan for capital recovery of the Investor:

- Where the investor is assigned land to implement other projects, the Project Contract must have the following items: location, estimated land area for implementation of other projects; value and method of determining the value of land use right; land assignment schedule and conditions for which the investor/project enterprise shall be assigned land.

- Where the Investor is paid in cash, the project contract shall provide specific amounts (the investment capital) to be paid, its interest rates, principles for determining interest rates, payment term, the cases and conditions for adjustment and other conditions consistent with the guidance of the Ministry of Finance.

- The payment currency and the convertible exchange rate shall be in accordance with the guidelines of the Ministry of Finance.

c) The procedures for auditing and settlement of the investment and construction capital shall be in accordance with the provisions of Decree No. 108/2009/ND-CP and the guidelines of the Ministry of Finance.

4. Other projects

a) Project’s objectives;

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 (in the case where the Investor is assigned another project).

Representative of the Authorised State Body        Legal representative of the Investor Legal representative of the Project Enterprise

SCHEDULE III

FORMS RELATING TO THE PROCEDURES FOR ISSUANCE, AMENDMENT OF INVESTMENT CERTIFICATES
(issued together with Circular No. 03/2011/TT-BKH dated 27 January 2011 of the Ministry of Planning and Investment)

FORM NO. 1

REQUEST FOR ISSUE OF INVESTMENT CERTIFICATES
(Applicable to foreign investors)

SOCIALIST REPUBLIC OF VIETNAM
Independence - Freedom - Happiness

…… date …………………………

REQUEST FOR ISSUANCE OF INVESTMENT CERTIFICATE

To: (name of the investment certificate issuing authority)

I. INFORMATION ON THE INVESTORS (where there are several investors, specify the information on each investor).

For individual investor:

Full name (write full name in block letters):

Sex:

Date of birth: …………/……../……… Ethnic group:           Nationality:

Identity card No.:

Date of issue: ……./……./…….. Place of issue:

Other personal identification document (if identity card is unavailable): Number of the personal identification document:

Date of issue: ……./……./…….. Date of expiry: ……./……./…….. Place of issue

Permanent residence registration place:

House number, Street/hamlet/village: Commune/Ward/Town: District/Township/Provincial City: Province/City:

Current domicile:

House number, Street/village/hamlet:

Commune/Ward/Town: District/Township/Provincial City: Province/City:

Telephone: Fax (if any):

Email (if any): Website (if any):

For corporate investor:

Name (Specify full name in block letter): Document certifying the incorporation:

No. of the certifying document:

Date of issue: ……./……./…….. Date of expiry: ……./……./…….. Place of issue:

Head office address:

House number, street/hamlet/village:

Commune/Ward/Town: District/Township/Provincial City: Province/City:

Telephone:……………………………..Fax (if any):

Email (if any):…………………………….. Website (if any):

Legal representative:

Sex:

Full name (write full name in block letter):……………………………..

Date of birth: ……./……./…….. Ethnic group:…………….. Nationality: Identity card No.:

Date of issue: ……./……./…….. Place of issue:

Other personal identification document (if identity card is unavailable):

Number of the personal identification document:

Date of issue: ……./……./…….. Date of expiry: ……./……./…….. Place of issue

II. REGISTRATION FOR ESTABLISHMENT OF PROJECT ENTERPRISE:

1. Name of the company:

Name of the Company in Vietnamese (write in block letter): Name of the Company in foreign language (if any):

Abbreviated name of the Company (if any):

2. Head office address:

House number, street/hamlet/village:

Commune/Ward/Town: District/Township/Provincial City: Province/City: Telephone:……………………………..Fax: Email:…………………………… Website:

3. The legal representative:

Full name (write full name in block letters):

Sex:

Date of birth: …………/……../……… Ethnic group:           Nationality:

Identity card No.:

Date of issue: ……./……./……..  Place of issue:

Other personal identification document (if identity card is unavailable): Number of the personal identification document:

Date of issue: ……./……./…….. Date of expiry: ……./……./…….. Place of issue

Permanent residence registration place:

House number, Street/hamlet/village: Commune/Ward/Town: District/Township/Provincial City: Province/City:

Current domicile:

House number, Street/village/hamlet:

Commune/Ward/Town: District/Township/Provincial City: Province/City:

Telephone: Fax (if any):

Email (if any): Website (if any):

4. Operation objectives: To implement Project: …………………… (name of the Project)

5. Charter capital (in figures; VND):

6. Charter capital funding:

7. Form of company:

8. List of members of the company (declaring in the corresponding form for the application file for registration of enterprise establishment as stipulated in the law on enterprises): hereto enclosed

III. REGISTRATION OF INVESTMENT PROJECT:

1. Investment project: The construction investment project (Name of the project) will be implemented on the basis of  contract (type of contract) entered into with ………………… (name of the competent State authority), head office address at (address of the head office of the competent State authority), (telephone, fax numbers) represented by (full name and title of the representative signing the project contract) pursuant to the Power of Attorney (number of the power of attorney, if any).

2. Place for construction of the project facilities:.................

Estimated area of used land ..................

3. Objectives, scale and technical standards of the project facilities: (state the contents related to the project contract):

4. Total investment capital, of which:

- Equity of the project enterprise:

- Loan:

5. Project implementation schedule

a. Construction schedule (specify the site clearance and construction schedules):

- Site clearance schedule: ……… from ……… to …………

- Construction schedule: ………… from ……… to ………

b. Progress of disbursement: (specify the schedule by stages if one time disbursement cannot be made).

c. Durations of Build - Operate - Transfer of Facilities (for a BOT Project); Durations of Build - Transfer - Operate of Facilities (for a BTO Project); Durations of Build - Transfer of Facilities (for a BT Project):

d. Time of Facilities transfer:

dd. Period of warranty for Facilities after transfer:

6. Conditions for business exploitation of Facilities (for BOT and BTO Projects) or conditions for support, payment in of the two following ways (for a BT Project):

a. Assignment of another Project (objectives, place, area of used land, total investment capital, implementation time and schedule); or

b. Payment in cash (amount, time and schedule of payment).

7. Proposed investment incentives and support and other investment guarantee (if any):

VI. THE INVESTOR UNDERTAKES THAT:

1. The investor is not one of the subjects stipulated in Clause 2, Article 13 of the Law on Enterprises;

2. The head office is under the lawful ownership/use right of the Company and used for the proper purpose as stipulated by law;

3. The investor will be responsible before law for the lawfulness, accuracy and truthfulness of the above registration contents.

REPRESENTATIVE OF THE INVESTOR
(Signature, full name, title and seal, if any)

Enclosures:

- The project contract and drafts of contracts and in-principle agreements related to the implementation of the project (if any);

- Report on feasibility study of the project (and the other project, in the case of a BT Project);

- The Joint Venture Agreement and the Charter of the project enterprise (if any);

- The application file for registration of establishment of enterprise in accordance with the Law on Enterprises. (without the request for registration of establishment of enterprise);

- Legal documents of the investors (certified copy of incorporation certificate or other equivalent documents).

FORM NO. 2

REQUEST FOR ISSUANCE OF INVESTMENT CERTIFICATE
(Applicable to domestic investors and foreign-invested enterprises)

…… date …………………………

REQUEST FOR ISSUANCE OF INVESTMENT CERTIFICATE

To: (name of the investment certificate issuing authority)

I. INFORMATION OF THE INVESTORS: (stating the same as in the respective provisions in Form No. 1):

II. REGISTRATION OF THE INVESTMENT PROJECT: (stating the same as in the respective provisions in Form No. 1):

III. THE INVESTOR UNDERTAKES:

To be responsible before the laws for the lawfulness, accuracy and truthfulness of the above enterprise registration contents.

REPRESENTATIVE OF THE INVESTOR
(Sign and specify full name, title and seal, if any)

Enclosures:

- The project contract and drafts of contracts and in-principle agreements related to the implementation of the project (if any);

- The report on feasibility study of the project (and the other project, in the case of a BT Project);

- The Joint Venture Agreement and the Charter of the project enterprise (if any);

- Legal documents of the investors (certified copies of the incorporation certificate or other equivalent documents).

FORM NO. 3

INVESTMENT CERTIFICATE
(Applicable to foreign investors)

INVESTMENT CERTIFICATE

No.:

Certification for the first time : date ........ month ........ year .....

Certification of change for the: .... time date ........ month ........ year .....

Certification of change for the: .... time date ........ month ........ year ..... Pursuant to the Law on Investment No. 59/2005/QH11 dated 29 November 2005; Pursuant to the Law on Enterprises No. 60/2005/QH11 dated 29 November 2005; Pursuant to the Law on Construction No. 16/2003/QH11 dated 26 November 2003;

Pursuant to the Law No. 38/2009/QH12 dated 19 June 2009 on amendment of and addition to a number of provisions of the laws on capital investment and construction;

Pursuant to Decree No. 108/2009/ND-CP dated 27 November 2009 on investment in the forms of build–operate–transfer contract, build–transfer-operate contract and build–transfer contract;

Pursuant to …......... stipulating the functions, tasks, authorities and structural organisation of ............................

Pursuant to the request for issuance of Investment Certificate and the documents attached thereto submitted by ............ on ............., and the supplementary documents submitted on ........... (if any),

THE INVESTMENT CERTIFICATE ISSUING AUTHORITY

Hereby certifies:

1.         The Investor: (where there are several investors, specify the information on each Investor).

For individual investor:

Full name (write full name in block letters):

Sex:

Date of birth: …………/……../……… Ethnic group:           Nationality:

Identity card No.:

Date of issue: ……./……./…….. Place of issue:

Other personal identification document (if identity card is unavailable): Number of the personal identification document:

Date of issue: ……./……./…….. Date of expiry: ……./……./…….. Place of issue

Permanent residence registration place: (stating the same as in the respective provisions

in Form No. 1)

Current domicile: (stating the same as in the respective provisions in Form No. 1)

For corporate investor:

Name (Specify full name in block letter): Document evidencing incorporation:

Number of the document evidencing incorporation:

Date of issue: ……./……./…….. Date of expiry: ……./……./…….. Place of issue

Head office address: (stating the same as in the respective provisions in Form No. 1)

Legal representative:

Full name (write full name in block letters): Sex:

Full name (write full name in block letter):……………………………..

Date of birth: ……./……./…….. Ethnic group:………………..Nationality:

Identity card No.:

Date of issue: ……./……./…….. Place of issue:

Other personal identification document (if identity card is unavailable): Number of the personal identification document:

Date of issue: ……./……./…….. Date of expiry: ……./……./…….. Place of issue

ARTICLE 1. REGISTRATION FOR ESTABLISHMENT OF PROJECT ENTERPRISE:

1. Name of the company:

Name of the Company in Vietnamese (write in block letter):

Name of the Company in foreign language (if any): Abbreviated name of the Company (if any):

2. Head office address:

House number, street/hamlet/village: Commune/Ward/Town:

District/Township/Provincial City: Province/City:

Telephone:……………………………..Fax (if any):

Email (if any):…………………………… Website (if any):

3. Legal representative:

Full name (write full name in block letter): Sex: Title:

Date of birth: …………/……../……… Ethnic group:           Nationality: Identity card No.:

Date of issue: ……./……./……..  Place of issue:

Other personal identification document (if identity card is unavailable):

Number of the personal identification document: Date of issue: ……./……./…….. Place of issue

Permanent residence registration place: (stating the same as in the respective provisions

in Form No. 1)

Current domicile: (stating the same as in the respective provisions in Form No. 1)

4. Operation objectives: To implement the Project: …………………… (name of the

Project)

5. Charter capital (in figures; VND):

6. Charter capital funding:

7. Form of company:

8. List of members of the company

The Enterprise must register for issuance of tax code, register its seal specimen and open bank accounts as stipulated by Vietnamese law.

ARTICLE 2. REGISTRATION OF INVESTMENT PROJECT:

1. Investment project: The construction investment project (Name of the project) will be implemented on the basis of contract (type of contract) entered into with ………………… (name of the competent State authority), head office address at (address of the head office of the Competent State authority), (telephone, fax numbers) represented by (full name and title of the representative signing the project contract) pursuant to the Power of Attorney (number of the power of attorney, if any).

2. Place for construction of the project facilities:.................

Estimated area of used land ..................

3. Objectives, scale and technical standards of the project: (state the contents related to the project contract):

4. Total investment capital, of which:

- Equity of the project enterprise:

- Loan:

5. Project implementation schedule

a. Construction schedule (specify the site clearance and construction schedules):

- Site clearance schedule: ……… from ……… to …………

- Construction schedule: ………… from ……… to ………

b. Progress of disbursement: (specify the schedule by stages if one time disbursement cannot be made).

c. Durations of Build - Operate - Transfer of Facilities (for a BOT Project); Durations of Build - Transfer - Operate of Facilities (for a BTO Project); Durations of Build - Transfer of Facilities (for a BT Project):

d. Time of Facilities transfer:

dd. Period of warranty for Facilities after transfer:

6. Conditions for business exploitation of Facilities (for BOT and BTO Projects) or conditions for support, payment in of the two following ways (for a BT Project):

a. Assignment of another Project (objectives, place, area of used land, total investment capital, implementation time and schedule); or

b. Payment in cash (amount, time and schedule of payment).

7. Proposed investment incentives and support and other investment guarantee (if any):

ARTICLE 3: This Investment Certificate is made in (…..) originals: 01 filed at the investment certificate issuing authority, 01 given to the project enterprise, … given to the Investors (01 for each investor), 01 sent to …………. (the State authority with the competence to sign the project contract) and copies sent to: the Ministry of Planning and Investment, the Ministry of Finance, the Ministry of Natural Resources and Environment, the People's Committee of the province where the project is implemented and the relevant ministries, departments and other authorities for obtaining their opinions in the processing of investment certificate issuance./.

HEAD OF THE INVESTMENT CERTIFICATE ISSUING AUTHORITY

FORM NO. 4

FORM OF INVESTMENT CERTIFICATE
(Applicable to domestic investors and foreign-invested enterprises)

INVESTMENT CERTIFICATE
No.:

Certification for the first time : date ........ month ........ year .....

Certification of change for the: .... time   date ........ month ........ year .....

Certification of change for the: .... time   date ........ month ........ year .....

Pursuant to the Law on Investment No. 59/2005/QH11 dated 29 November 2005; Pursuant to the Law on Enterprises No. 60/2005/QH11 dated 29 November 2005; Pursuant to the Law on Construction No. 16/2003/QH11 dated 26 November 2003; Pursuant to the Law on Tendering No. 61/2005/QH11 dated 29 November 2005;

Pursuant to the Law No. 38/2009/QH12 dated 19 June 2009 on amendment of and addition to a number of provisions of the laws on capital investment and construction;

Pursuant to Decree No. 108/2009/ND-CP dated 27 November 2009 on investment in the forms of build–operate–transfer contract, build–transfer-operate contract and build–transfer contract;

Pursuant to …....... stipulating the functions, tasks, authorities and structural organisation of ...........

Pursuant to the request for issuance of Investment Certificate and the documents attached thereto submitted by .............. on ............, and supplementary documents submitted on .............. (if any)

THE INVESTMENT CERTIFICATE ISSUING AUTHORITY

Hereby certifies:

1. The Investor: (where there are several investors, specify the information on each Investor).

For individual investor:

Full name (write full name in block letters):

Sex:

Date of birth: …………/……../……… Ethnic group:           Nationality:

Identity card No.:

Date of issue: ……./……./……..  Place of issue:

Other personal identification document (if identity card is unavailable): Number of the personal identification document:

Date of issue: ……./……./…….. Date of expiry: ……./……./…….. Place of issue

Permanent residence registration place: (stating the same as in the respective provisions

in Form No. 1)

Current domicile: (stating the same as in the respective provisions in Form No. 1)

For corporate investor:

Name (Specify full name in block letter): Document evidencing incorporation:

Number of the document evidencing incorporation:

Date of issue: ……./……./…….. Date of expiry: ……./……./…….. Place of issue

Head office address: (stating the same as in the respective provisions in Form No. 1)

Legal representative:

Full name (write full name in block letters): Sex:

Full name (write full name in block letter):……………………………..

Date of birth: ……./……./…….. Ethnic group:………..……..Nationality:

Identity card No.:

Date of issue: ……./……./…….. Place of issue:

Other personal identification document (if identity card is unavailable): Number of the personal identification document:

Date of issue: ……./……./…….. Date of expiry: ……./……./…….. Place of issue

ARTICLE 1. REGISTRATION FOR ESTABLISHMENT OF PROJECT ENTERPRISE: (stating the same as in the respective provisions in Article 2 of Form 3)

ARTICLE 2. (stating the same as in the respective provisions in Article 3 of Form 3)

HEAD OF THE INVESTMENT CERTIFICATE ISSUING AUTHORITY

FORM NO. 5

REQUEST FOR AMENDMENT OF INVESTMENT CERTIFICATE

SOCIALIST REPUBLIC OF VIETNAM
Independence – Freedom - Happiness

REQUEST FOR AMENDMENT OF INVESTMENT CERTIFICATE

To: (Name of the investment certificate issuing authority)

The Investor:

Registers/requests for amendment of the Investment Certificate (No., date and place of issue) with the following contents:

I. AMENDMENT OF BUSINESS REGISTRATION CONTENTS (Applicable to foreign investors who have been issued with the Investment Certificate in Form 1 only)

Contents requested to be amended: (Only state the contents requested to be amended and explain the reasons for amendment)

Business registration contents after amendment:

1. Name of the company:

Name of the company in Vietnamese (state in block letter): Name of the company in foreign language (if any): Abbreviated name of the company (if any):

2. Head office address:

House number, street/hamlet/village: Commune/Ward/Town:

District/Township/Provincial City: Province/City:

Telephone:……………………………..Fax: Email:…………………………… Website:

3. Legal representative:

Full name (write full name in block letters): Sex:

Date of birth: …………/……../……… Ethnic group:           Nationality: Identity card No.:

Date of issue: ……./……./……..  Place of issue:

Other personal identification document (if identity card is unavailable):

Number of the personal identification document:

Date of issue: ……./……./…….. Date of expiry: ……./……./…….. Place of issue

Permanent residence registration place: House number, Street/hamlet/village: Commune/Ward/Town: District/Township/Provincial City: Province/City:

Current domicile:

House number, Street/village/hamlet: Commune/Ward/Town: District/Township/Provincial City: Province/City:

Telephone: Fax (if any):

Email (if any): Website (if any):

4. Operation objectives: To implement the Project: …………………… (name of the Project)

5. Charter capital (in figures; VND):

6. Charter capital funding:

7. Form of company:

8. List of members of the company (declare in the relevant form for the application file for registration of enterprise establishment as stipulated by the law on enterprises): hereto enclosed

III. AMENDMENT OF THE PROJECT CONTENTS:

Contents requested to be amended: (Only state the contents requested to be amended and explain the reasons for amendment)

Project contents after amendment:

1. The construction investment project (Name of the project) will be implemented on the basis of  contract (type of contract) entered into with ………………… (name of the competent State authority), head office address at (address of the head office of the competent State authority), (telephone, fax numbers) represented by (full name and title of the representative signing the project contract) pursuant to the Power of Attorney (number of the power of attorney, if any).

2. Place for construction of the project facilities:.................

Estimated area of used land ..................

3. Objectives, scale and technical standards of the project: (state the contents related to the project contract):

4. Total investment capital, of which:

- Equity of the project enterprise:

- Loan:

5. Project implementation schedule

a. Construction schedule (specify the site clearance and construction schedules):

- Site clearance schedule: ……… from ……… to …………

- Construction schedule: ………… from ……… to ………

b. Progress of disbursement: (specify the schedule by stages if one time disbursement cannot be made).

c. Durations of Build - Operate - Transfer of Facilities (for a BOT Project); Durations of Build - Transfer - Operate of Facilities (for a BTO Project); Durations of Build - Transfer of Facilities (for a BT Project):

d. Time of Facilities transfer:

dd. Period of warranty for Facilities after transfer:

6. Conditions for business exploitation of Facilities (for BOT and BTO Projects) or conditions for support, payment in of the two following ways (for a BT Project):

a. Assignment of another Project (objectives, place, area of used land, total investment capital, implementation time and schedule); or

b. Payment in cash (amount, time and schedule of payment).

7. Proposed investment incentives and support and other investment guarantee (if any):

III. THE INVESTOR UNDERTAKES:

1. To be fully responsible for the accuracy of the contents of the request for amendment;

2. To strictly comply with all the provisions of Vietnamese law and the provisions in the Investment Certificate

………, on ………………………

THE LEGAL REPRESENTATIVE OF THE INVESTOR
(signature, full name, title and seal)

Enclosures:

- The report on project implementation progress status;

- Draft of the project contract (amended);

- Application file for amendment of business registration contents in accordance with the Law on Enterprises (where the request is for amendment of business registration contents in the Investment Certificate).

- Legal documents of the investors (certified copies of incorporation certificate or other equivalent documents).