Quyết định 1597/QD-TTG

DECISION

ON PROMULGATING “MECHANISM OF MANAGEMENT AND IMPLEMENTATION OF PROJECT ON PILOT INVESTMENT IN CONSTRUCTION OF DAU GIAY – PHAN THIET HIGHWAY IN THE PUBLIC-PRIVATE PARTNERSHIP FORM

THE PRIME MINISTER

Pursuant to the Law on Government organization, of December 25, 2001;

Pursuant to the Law on investment, of November 29, 2005;

Pursuant to the Law on Construction, of November 26, 2003;

Pursuant to the Decision No.71/2010/QD-TTg of November 09, 2010 of the Prime Minister on promulgating the regulation on pilot investment in the public-private partnership form;

At the proposal of the Ministry of Transport

DECIDES:

Article 1. On promulgating together with this Decision on “Mechanism of management and implementation of project on pilot investment in construction of Dau Giay – Phan Thiet highway in the public-private partnership form (PPP)".

Article 2. This Decision takes effect as from the day of signing.

Article 3. The Ministers: Of Transport, Planning and Investment, Construction, Justice Ministries, the Governer of the State bank of Vietnam, the President of the People’s Committee of Dong Nai, Binh Thuan provinces and heads of relevant agencies, units shall implement this Decision.

During the course of implementation of this Decision, if arising any problems, the Ministry of Transport shall synthesize, report to the Prime Minister for consideration, decision.

MECHANISM

MANAGEMENT AND IMPLEMENTATION OF PROJECT ON PILOT INVESTMENT IN CONSTRUCTION OF DAU GIAY – PHAN THIET HIGHWAY IN THE PUBLIC-PRIVATE PARTNERSHIP FORM (PPP) (Promulgated together with the Decision No.1597/QD-TTg, of October 26, 2012 of the Prime Minister)

Part 1.

GENERAL PROVISIONS

Article 1. Scope of regulation and Subjects of application

1. Scope of regulation

This mechanism stipulates on preparation, management and implementation of project on investment in construction of Dau Giay – Phan Thiet highway (hereinafter referred to as “Project”) in the public-private partnership form (hereinafter referred to as “Mechanism”.

2. Subjects of application

Subjects of application of this mechanism are: Ministries and ministerial-level agencies, People’s Committee of Binh Thuan, Dong Nai provinces, investors, organizations, agencies relating to investment, management and implementation of Project.

Article 2. Interpretation of terms

In this mechanism, the following terms are construed as follows:

1. Total investment level of Project (hereinafter referred to as “Total investment level”) is defined under the report on feasible research of Project appraised and approved by the Ministry of Transport. Content of total investment level under current regulations on management of cost for investment in construction of works.

2. Total construction cost of Project (hereinafter referred to as “Total construction cost”) means total cost for completion of the course of construction of Project, including construction cost; equipment cost; management cost of project; cost for construction investment consultancy; other costs (excluding of loan interest in construction time) and standby cost;

3. Total investment cost of Project (hereinafter referred to as “Total investment cost”) includes total construction cost, cost for operation, exploitation of works, cost for loan interest in construction time and relevant financial cost during the course of works construction and operation; excluding cost for compensation, ground clearance.

4. State capital participation portion in order to ensure financial feasibility of project (hereinafter referred to as VGF) means amounts contributed by State in order to cover deficit of project which is calculated in difference between current net value of total investment cost of Project and current net value of total estimated revenues of Project in entire of franchising-project duration aiming to ensure for Project’s financial feasibility. VGF for project is used from the official development assistance (ODA) loan capital of World Bank.

5. The franchising-project duration is period calculated from effective time of project contract until the investors transfer the works of project for the Ministry of Transport.

Article 3. The principles for implementation of mechanism

1. In case there is difference between content specified in this mechanism with terms of the donor, complying with agreements with the donor.

2. The first investor is BITEXCO group limited liability company.

3. The second investor shall be selected through international bidding as prescribed in this mechanism and in conformity with guidance of the donor. The second investor shall together with the first investor to establish project management enterprise in order to conduct Project.

4. The contributed equity capitals of investors in Project are not lower than 20% of total construction cost. Participation rates of contributed equity capital in project management enterprise between two investor shall be implemented in according to clause 1 Article 11 of this mechanism.

5. Cost for compensation in ground clearance, resettlement, cost for moving utility establishments from the site project, cost for bomb-sweeping which are implemented by State with state budget funds according to provision of Vietnamese law and in conformity with requirement of the donor.

6. The Government shall act as a guarantee for the first investor in order to loan from IBRD credit source of world bank for implementation of Project and this is one of investment incentive policies for Project. This IBRD loan shall be calculated as participation portion of the first investor in Project.

Article 4. The competent state agency

The Ministry of Transport is state agency competent to sign and perform rights, duties and responsibilities under agreement with investors in the project contract.

Article 5. The inter-sector working team conducting project and the expert group bidding and negotiating contract

1. The inter-sector working team conducting project is established by The Minister of Transport in order to support the Ministry of Transport in course of preparation for project, selecting investors, negotiation, management and implementation of Project. The inter-sector working team is composed of representatives of the Ministry of Transport, the Ministry of Planning and Investment, the Ministry of Finance, the State bank of Vietnam, the Ministry of Justice and some independent experts on law, technique, finance (if necessary). A deputy minister of Transport shall be head of inter-sector working team.

2. The inter-sector working team conducting project has following functions and duties:

a) Cooperating with Ministries and ministerial-level agencies, People’s Committee of Binh Thuan, Dong Nai provinces, the World Bank in order to direct units, organizations relating to preparation, management and implementation of Project;

b) Participating in appraisal of contents within deciding competence of the Ministry of Transport and contents which the Ministry of Transport must submit to the Prime Minister;

c) Participating in solving problems arising during course of preparation, management and implementation of Project;

d) Implementing other duties at the request of the Ministry of Transport.

3. Members of the inter-sector working team conducting project have the following functions and duties:

a) Being focal point of Ministries, sectors, agencies in order to participate in consult on management field of Ministries, sectors, agencies of which they respectively being representative;

b) Participating fully in operations of the inter-sector working team, having responsibility before head of the inter-sector working team for assigned issues;

c) Being supplied fully information relating to operations of the inter-sector working team and results of transaction consultant;

d) Implementing other rights and duties which are assigned by head of the inter-sector working team.

4. In the course of bidding, the Ministry of Transport shall establish “the expert group bidding and negotiating contract” aiming to support the inter-sector working team in selecting the second investor. The expert group bidding and negotiating contract is composed of representatives of agencies of the Ministry of Transport, Unit managing the Project performance and representatives of Ministries, sectors. A leader of advisory agency of the Ministry of Transport shall be head of the expert group bidding and negotiating contract.

5. The Minister of Transport decides the operation duration of the inter-sector working team conducting project, depending on requirement of project performance.

Article 6. Unit managing the Project performance

1. Unit managing the Project performance is unit authorized by the Ministry of Transport in order to perform some task in competence of the Ministry of Transport and other relevant state management agencies during course of Project performance.

2. The Minister of Transport decides the organizational structure, functions, duties of Unit managing the Project performance.

3. Unit managing the Project performance performs under direct direction of the Ministry of Transport.

4. Operation cost of Unit managing the Project performance is funded from operation budget of competent state agencies, support sources of donors and other legal funding.

Article 7. Transaction consultant

1. Apart from consultants under current regulations, in order to implement Project under public-private partnership model, the Ministry of Transport may use financial transaction consultant, technical transaction consultant, legal transaction consultant and other support transaction consultant (if necessary) (hereinafter refered to as “transaction consultant”). Transaction consultants shall be selected in conformity with regulation of Vietnamese law, policy of international donor (if any).

2. Transaction consultants shall be selected by based on criteria specified in the relevant reference terms.

3. Unit managing the Project performance shall supervise transaction consultants recruited by the Ministry of Transport. The transaction consultants report to the Ministry of Transport through the Unit managing the Project performance, in according to regulations in the relevant reference terms.

4. The legal and international financial consultants shall must set up at the Ministry of Transport a database for storage. At there, all copies of all information received, made by all transaction consultants shall be stored in order to confirm all works have been performed. These informations shall be arranged in order to be easy for use through a system of alphabetic/figure order sorted in serial form. The legal and international financial consultants shall must assure the database set up on the basis of website in order to serve for access of the Ministry of Transport and the World Bank, including electronic versions of all information received or made by transaction consultants. When the legal and international consultants have finished their task, the supervision of the stored database and website must be handed over to the Ministry of Transport.

Article 8. Capital sources for Project performance

1. Capital source from private area includes:

a) The equity capital of project management enterprise from contribution of investors;

b) The capital source from IBRD loan allocated by the World bank and guaranteed by Government for the first investor in order to perform Project;

c) Other capital sources by self-arrangement of project management enterprise and investors.

2. Capital source from Goverment includes:

a) VGF in Project: Being defined through international bidding which is conducted by the Ministry of Transport and approved by the Prime Minister as prescribed in this mechanism VGF for this Project shall be arranged by the IDA loan capital from World Bank;

b) The State budget funding shall pay for ground clearance, compensation, assistance and resettlement, cost for bomb and explosive materials-sweeping, cost for moving utility establishments from the site project, and cost for investment in construction of technical infrastructure (if any) for the Project implementation;

c) Investment financing capital source from international donors for preparation and implementation of project shall comply with relevant agreements of donors and Vietnamese Government.

Part 2.

PREPARATION FOR INVESTMENT

Article 9. Cost for investment preparation

Cost for making, appraisal and approval of proposed project; cost for making, verification of report on researching feasibility of Project and other legal expenditures in period of preparation for investment which is paid by the first investor shall be accounted in the contributing portion of equity source of the first investor in Project.

Article 10. The ground clearance, resettlement

1. People’s Committee of Dong Nai and Binh Thuan provinces are investors of sub-projects on ground clearance in localities of each province.

2. Scope of ground clearance of Project shall be implemented in according to current provisions on management, protection of roadway traffic infrastructure and in conformity with Report on researching feasibility of Project has been approved by the Ministry of Transport. The Ministry of Transport is responsible for handing over dossier of sub-project and landmarks of ground clearance based on approval result of report on researching feasibility for People’s Committee of Dong Nai and Binh Thuan provinces to implement ground clearance of Project.

3. The Ministry of Transport and People’s Committee of Dong Nai and Binh Thuan provinces unify plan to implement ground clearance and resettlement of Project in order to ensure progress of Project implementation in conformity with requirement of the World Bank.

Part 3.

STATE CAPITAL PARTICIPATION PORTION (VGF)

Article 11. Defining VGF

1. Defining and proposing VGF

In order to ensure feasibility of Project and serviced as basis for bidding to select the second investor, the Ministry of Transport defines scale of VGF, submits to the Prime Minister for approval. The equity participation rate in project management enterprise of the first investor (BItexco) is 60% and of the second investor is 40%. During the course of implementation of Project, investors may self-balance force source in order to agree adjustment of participation rate of each party for conformity.

2. Form of VGF contribution

VGF shall be provided in money in period of construction of works of Project based on timeline of implementation defined clearly and after 50% of contributed capital or charter capital of project management enterprise has been conducted disbursement for Project by investor.

3. Provisions for VGF use

a) The State shall not collect any interest or incomes with respect to VGF contributed in Project;

b) VGF is used to pay only for construction cost of Project works in construction period;

c) VGF is disbursed partially for each time under construction progress and specified in Project contract.

Article 12. Order of VGF approval

1. VGF approval before bidding to select the second investor:

a) The Ministry of Transport, with assistance of financial consultant, defines VGF and submit to the Prime Minister for approval after having appraisal opinion of the Ministry of Planning and Investment and the Ministry of Finance.

b) Dossier submitting to the Prime Minister for approval of VGF includes: A written explaination on contents relating to VGF, Report on researching feasibility of Project, Report on appraisal of VGF and other relevant documents;

c) The Prime Minister shall approve VGF and other relevant issues.

2. The final VGF value shall be defined through result of international bidding by method of using the unique selecting criterion in which the proposed VGF is lowest, after having defined investors meeting technical standard through assessment of technical proposals.

3. Approval of VGF adjustment

If VGF defined through international bidding exceed VGF approved by the Prime Minister, the Ministry of Transport shall submit to the Prime Minister for approval of VGF adjustment. Order of, procedures for and dossier submiting to the Prime Minister for approval of VGF adjustment are implemented as order of, procedures for and dossier submitting for approval of VGF before bidding. VGF after being accepted for adjustment by the Prime Minister shall be the official VGF.

Article 13. Making and allocating budget for VGF

Process of making and allocating budget for VGF is implemented as follows:

1. Unit managing the Project performance shall synthetise the annual VGF demand based on progress of construction of Project works of project management enterprise and report to the Ministry of Transport for appraisal.

2. After appraising, the Ministry of Transport shall send the annual BGF plan to the Ministry of Finance, the Ministry of Planning and Investment before the 20^th July each year in order to make annual estimation and VGF allocation plan.

Article 14. Conditions of VGF disbursement

1. VGF disbursement shall be implemented under the construction progress of Project works and calculated by rate specified in Project contract.

2. The first capital part is disbursed for Project only after satisfying all following conditions:

a) Agreements among investors with all organizations granting loan for Project in order to ensure sufficient total project investment value have been signed;

b) 50% of charter capital of project management enterprise has been disbursed for Project by investor;

c) The first disbursement part from loan capital of organization granting main loan as prescribed in Project contract has been implemented.

Article 15. Disbursement, supervision, accounting and audit of VGF

Disbursement, supervision, accounting and audit of VGF are implemented as prescribed by current law and guides of the Ministry of Finance in course of Project implementation.

Part 4.

BIDDING TO SELECT THE SECOND INVESTOR AND SIGNING CONTRACT

Article 16. Making and approving plan of bidding

Unit managing the Project performance shall make bidding plan to submit to the Ministry of Transport for appraisal, approval before organizing the bidding. The bidding plan to select the second investor includes the following contents:

a) Name of Project;

b) Preliminary estimating VGF;

c) Capital sources for VGF;

d) Forms to select the investor and method of bidding;

dd) Time of organization for selecting investor;

e) Form of contract (PPP contract);

g) Duration of contract performance;

h) Other necessary contents.

Article 17. Preparation for bidding

1. Preliminary selection

a) Unit managing the Project performance shall make dossier to invite preliminary selection with assistance of transaction consultant, submit to the Ministry of Transport for appraisal, approval;

b) Order of preliminarily selecting investor includes steps:

- Notification of investor preliminary selection invitation;

- Organizing a meeting with interest investors in order to introduce BITEXCO as the first investor of Project and discuss to clarify terms in dossier of preliminary selection invitation;

- Receiving and managing dossiers participating in preliminary selection;

- Assessing dossiers participating in preliminary selection;

- Approving and notifying result of preliminary selection.

2. Preparation for bidding dossier

a) Compilation of bidding dossier

Unit managing the Project performance with assistance of financial transaction consultant shall compile draft of bidding dossier

The bidding dossies must include the principal content: Guidances for inverstors include criteria in order to assess bidding dossies, information of Project, draft of project contract and investment agreement (agreement between the first investor and the second investor which is selected through bidding – agreement of shareholders), provisions on guarantee for bidding and guarantee for performance of Project contract.

b) Acceptance of bidding dossier in order to invite for consultation.

Unit managing the Project performance submits to the Ministry of Transport for approval of the bidding dossier draft in order to invite for consultation.

c) Inviting for consultation of draft:

Unit managing the Project performance shall send inviting letters for consultation of bidding dossier draft to the first investor and investors which have passed preliminary selection in order to take advisory opinions. The advisory opinions of investor (if any) must be made in writing and in time specified in the consultation-inviting letter.

After ending time limit for advisory opinion submission, Unit managing the Project performance shall review in order to reply advisory opinions. Unit managing the Project performance may exchange to clarify advisory opinions of investor and give out feedbacks on some advisory opinion through (i) exchange in writing to investors; or (ii) organize a consultation conference, inviting representatives of investors and relevant agencies for participation, or (iii) combine both above methods. The Ministry of Transport shall have no obligation to clarify or amend the bidding dossier in according to any or all requirements given out by investors in their advisory opinions. Content exchanged in writing with investors and content exchanged in consultation conference must be stored by Unit managing the Project performance and recorded into minutes to serve as basis in order to complete the bidding dossier.

d) Approval of the bidding dossier:

Based on result of consultation, Unit managing the Project performance with assistance of transaction consultants shall complete the bidding dossier, supplement information about VGF which has been approved by the Prime Minister and submit to the Ministry of Transport to organize appraisal and approval of the bidding dossier.

Article 18. Organization for bidding

1. Issuance of bidding dossier

Unit managing the Project performance shall implement issuance of bidding dossier before closing tender for investors which have passed the preliminary selection step.

2. Receiving and manging the bidding dossier

Unit managing the Project performance shall receive and manage all submitted bid dossiers under regime of managing “confidential” dossier. Bid dossiers being submitted after closing tender are invalid and rejected.

3. Amendment or withdrawal of the bid dossier

When want to amend or withdraw a submitted bid dossier, the investor must have a written requesting and Unit managing the Project performance only accept in case receiving such written requesting before closing tender; the written requesting amendment or withdrawal of bid dossier must be sent separately with the bid dossier.

4. Opening dossiers of technical proposals

a) Opening of tenders must be implement in publicity after closing tender in according to time and place specified in the bidding dossier with witness of attending persons and not depending on attendance or absence of investors being invited;

b) Unit managing the Project performance shall open dossier of technical proposals of each investor in alphabetic order of name of investors and make a minutes of opening tender. The minutes of tender opening must be signed for confirmation by representatives of investors, representative of Unit managing the Project performance, representatives of relevant attending agencies;

c) After opening tender, Unit managing the Project performance must sign for confirmation at each page of original of dossier of technical proposals of each bid dossier and manage in according to the regime of managing “confidential” dossier. Assessment of dossier of technical proposals shall implement on copies. The investors must be responsible for accuracy and conformity between copies and originals as well as sealing of bid dossiers.

5. Assessment of dossiers of technical proposals

a) Assessment of dossiers of technical proposals is implemented in according to the criteria for assessment of bid dossier and other requirements stated in the bidding dossier. Assessment of a bid dossier must base on the submitted bid dossier and documents of investor explaining and clarifying such bid dossier. After opening tender, the investors shall clarify their bid dosier when being requested by the Ministry of Transport;

b) Based on result of technical assessment of the expert group bidding and negotiating contract, the Ministry of Transport approves list of investor of which dossiers meet technical requirement. Only investors having bid dossier which approved meeting technical requirement by the Ministry of Transport are invited to come the commercial proposal opening;

c) In case there is no investor meeting technical requirements, the Ministry of Transport shall consider to decide cancellation of bidding and reorganizing the bidding.

6. Opening the commercial proposals

a) Unit managing the Project performance, on behalf of the Ministry of Transport, invites investors which have bid dossiers meeting technical requirements and representatives of relevant agencies to attend ceremony of the commercial proposal opening;

b) Unit managing the Project performance shall open alternately commercial proposals of investors meeting technical requirements in alphabetic order of name of investors and make a minutes of the commercial proposal opening. The minutes of the commercial proposal opening must be signed for confirmation by representative of the Ministry of Transport, representatives of investors, representatives of relevant attending agencies;

c) After opening commercial proposals, representative of Unit managing the Project performance must sign for confirmation at each page of original of each commercial proposal and manage in according to the regime of managing “confidential” dossier.

7. Assessment of commercial proposals and ranking of the bid dossiers:

Based on criteria for evaluation stated in bidding dossier, the expert group bidding and negotiating contract shall assess commercial proposals and rank the bid dossiers in according to VGF criteria proposed from-low-to-high. Based on result of assessment of the expert group bidding and negotiating contract, Unit managing the Project performance shall synthetise and submit to the Ministry of Transport for approval of result of assessment and list of ranking. Investor which gives out minimum VGF value shall be ranked the first and invited to negotiate contract. In case the VGF value which being given out by investor having minimum VGF value is higher than one approved by the Prime Minister, the Ministry of Transport shall submit to the Prime Minister for VGF adjustment before inviting the investor having minimum VGF value to negotiate. The VGF adjustment is implemented in according to clause 3, Article 12 of this mechanism.

Article 19. Negotiation of contract

1. Based on decision of the Ministry of Transport, Unit managing the Project performance shall invite the investor ranked the first and BITEXCO in order to participate in negotiation of contract. Content of negotiation is limited just in scope of contractual matters stated in the bid dossier of the second investor.

2. The expert group bidding and negotiating contract is responsible for negotiation on contract with investors with assistance of transaction consultants.

3. If negotiation attains successfulness, the Ministry of Transport and investor shall sign a Minutes confirming result of negotiation.

4. If negotiation meets failure because cannot attain agreements with the investor ranked the first after being accepted by the Ministry of Transport, the expert group bidding and negotiating contract shall invite the investor ranked next level for negotiation and shall continue to do as such until attain agreement. If having negotiated with all investor in list of investor meeting the technical requirements but cannot attain agreement, the Ministry of Transport shall report to the Prime Minister in order to permit re-bidding or propose other handling measure.

Article 20. Submission and approval of result of bidding

Based on result of assessment of bid dossiers and result of contract negotiation, Unit managing the Project performance shall make report on result of bidding to select the second investor and submit it to the Ministry of Transport for consideration and decision.

2. The Ministry of Transport organizes appraisal and approval of result of bidding to select the second investor.

3. Content of approval of bidding result includes:

a) Name of selected investor;

b) VGF value in Vietnam dong;

c) Form of contract;

d) Duration of contract performance;

e) Other content (if any).

Article 21. Notification of bidding result

1. Unit managing the Project performance shall notify the bidding result after having decision on approval of the bidding result. In notification of the bidding result it shall not explain reason for non-selected investors.

2. The bidding result must be publish on bidding news, online electronic newspapers of People’s Committee and dgMarket as prescribed by the World Bank.

Article 22. Completing and initialing the Project contract

1. Completing the Project contract

The expert group bidding and negotiating contract, with assistance of transaction consultants shall negotiate, complete contract for initialing the Project contract with the first investor and the selected second investor.

2. Initialing the Project contract.

Based on result of negotiation, completion of the Project contract, the Ministry of Transport and selected investors shall conduct initialing the Project contract for the first investor and second investor in implementation of procedures: Financial arrangement for Project; proposal for grant of Project investment certificate and establishment of project management enterprise.

Article 23. Official signing of the Project contract

1. After the Project is granted the investment certificate, project management enterprise and the Ministry of Transport shall officially sign the Project contract.

2. In case content of the Project contract has changes comparing to the initialized Project contract, the Ministry of Transport must notify amended content for the Ministry of Planning and Investment before project management enterprise officially sign the Project contract.

Part 5.

PROJECT PERFORMANCE

Article 24. Selection of contractors for project implementation

Project management enterprise shall self-decide selection of consultancy, procurement, engineering and other contractors for project implementation.

Article 25. The independent supervision engineers

1. Selecting independent supervision engineers

The independent supervision engineers are selected by Unit managing the Project performance (on behalf of the Ministry of Transport) with funding from IDN capital source of the World Bank. In order to satisfy implementation schedule of Project, the bidding to select independent supervision engineers shall be implemented before signing agreement of IDA capital loan for Project and the Advisory Contract shall be signed after signing this loan agreement.

2. Role of the independent supervision engineers

a) Preparing to report the quarterly or irregular progress at the request of Unit managing the Project performance about implementation schedule of construction operation, financial situation, capital source and capital use and relevant information;

b) Approving forms being used to record, report and other documents which are necessary for assessment of compliance of investors, project management enterprise for provisions of the Project contract regarding Project works and services of Project, commercial terms of the Project contract;

c) Requiring or examining the information management system of project management enterprise as prescribed in the project contract;

d) The independent engineers shall inspect at the field before each time of VGF disbursement, make assessment report to send to Unit managing the project performance and State Treasury;

dd) All differences comparing to the approved project parameter need be notified to Unit managing the Project performance in order to report to the Ministry of Transport and the Ministry of Finance;

e) When construction works are completed, the independent supervision engineers shall inspect at the field, ensure that the construction has been completed and in according to the outlined standard, assess items to consider that there is any arising problem relating to time or funding and after that prepare the report on project completion. The report on project completion shall be important instrument for appraisal of similar project in the future;

g) Implementing other task which are consigned by parties as prescribed in the project contract.

Article 26. Suppervision, management of project works construction

1. Project management enterprise shall self-manage, supervise or lease independent advisory organizations in order to manage, supervise building, acceptance of items and entire works under agreed design, in conformity with provisions of law on construction and agreements in the Project contract.

2. The Ministry of Transport shall be responsible for supervision, assessment of the compliance of obligations of project management enterprise in implementation of requirements on planning, target, scale, technical standard, works quality, progress of mobilizing capital and implementing project, environmental protection and other issues under agreements in the project contract, detailing as follows:

a) In the course of the Project construction:

The indepent supervision engineers shall supper and report progress of project to the Ministry of Transport;

The indepent supervision engineers prepare quarterly progress reports for supervision and reports on implementation schedule of construction activities, financial situation, capital source and capital use and relevant information;

The independent engineers shall inspect at the field before each time of VGF disbursement, which is about 3 months after the preceding disbursement. In case frequency of disbursement is higher, a quarter examination and supervision shall be implemented in course of constructing the Project's works;

If having any difference comparing to the approved project parameters, the independent supervision engineers shall notify for the Ministry of Transport;

When construction works are completed, the independent supervision engineers shall inspect at the field, ensure that the construction has been completed and comply with the outlined standard, assess items to consider that there is any arising problem relating to time or funding and after that prepare a report on project completion.

b) In the course of Project operation:

The Ministry of Transport shall assess annually situation of Project in the Project operation period. Unit managing the Project performance shall examine at the field and meet representatives of investors and project management enterprise, for at least one time each year;

In this course of annual assessment, the Unit managing the project performance shall consider reports which have been audited yearly, financial situation and service supply of Project and report to the Ministry of Transport.

c) Information of quarterly and yearly reports shall be considered and analysed by the Unit managing the Project performance aiming to supervise progress of project and profits attained in entire program, and defining necessary measures to adjust application of the allocating-VGF mechanism.

3. The adjustment of total cost in investment, technical design and other conditions which have been agreed in the Project contract shall be considered only in the following cases:

a) The project is affected by natural disaster or other force majeure events;

b) Changes of law;

c) The plan is changed which affecting directly to the place, scale, nature, objective of Project;

d) Other cases as prescribed by Government.

Part 6.

INVESTMENT INCENTIVES AND ASSURANCES

Article 27. Investment incentives and assurances

1. The project management enterprise shall be enjoyed investment incentives and assurances as prescribed in the Decision No.71/2010/QD-TTg of November 09, 2010 of the Prime Minister.

2. Government shall grant guarantee for the first investor to borrow IBRD credit of the World Bank for Project performance.

3. In time of project franchise specified in the Project contract, the Government commits to not invest in expansion of section of national road 1 which parallels to route of the project in order to assure revenue and feasibility of the project.

Article 28. Right to receive the project

1. The parties may agree that the Ministry of Transport or the lender shall receive a partly or entire rights and obligations of project management enterprise (hereinafter referred to as right to receive the project) in case the project management enterprise or investors fail to implement obligations under the project contract or loan contract. After receiving project, the Ministry of Transport or lender must implement full corresponding obligations of the project management enterprise or investors specified in the project contract.

2. Conditions, procedures and content of right to receive project of the Ministry of Transport or the lender must be specified in the project contract or corresponding loan contract. The loan guarantee written or other agreement signed between project management enterprise or investors with lender must be accepted by the Ministry of Transport.

Article 29. Transfer of rights and obligations under the project contract

1. The investors may transfer partly or entire of their rights and obligations under the project contract. The project may be transferred after finishing construction and being put into operation.

2. The transfer as prescribed in clause 1 this Article must be accepted by the Ministry of Transport and not cause effect to the objective, scale, technical standard, implementation schedule of project and other conditions which have been agreed in the Project contract.

Part 7.

RESPONSIBILITIES OF RELEVANT AGENCIES, ORGANIZATIONS

Article 30. The responsibilities of the Ministry of Transport

The Ministry of Transport shall:

1. To appraise, approve and adjust the Report on research feasibility of Project.

2. To define VGF in order to submit to the Prime Minister for approval.

3. To prepare dossier of preliminary selection invitation, bidding dossier and organize tender to select the second investor, negotiate, complete, sign and perform the project contract; decide to handle circumstances in tender to select the second investor.

Article 31. The responsibilities of the Ministry of Finance

The Ministry of Finance shall:

1. To participate with the Ministry of Planning and Investment to appraisal, propose to the Ministry of Transport regarding VGF.

2. To participate with the Ministry of Planning and Investment, the State bank of Vietnam, the Ministry of Transport to arrange IDA loan of Government from the World Bank in order to contribute in VGF.

3. To promulgate detailed guidance on process of disbursement, mechanism of supervision, VGF accounting and audit for project.

4. To implement procedures relating to guarantee of Government for IBRD loans of the project management enterprise and the first investor after being accepted by Government as prescribed by relevant law.

5. To guide the project management enterprise and investors to access to and borrow incentive loans of Government.

Article 32. The responsibilities of the Ministry of Planning and Investment

The Ministry of Planning and Investment shall:

1. To assume the prime responsibility for, and coordinate with the Ministry of Finance to appraisal proposal of the Ministry of Transport regarding VGF.

2. To assume the prime responsibility for, and coordinate with the Ministry of Finance, the State bank and the Ministry of Transport to arrange IDA loan of Government from the World Bank in order to contribute in VGF.

3. To issue the project investment certificate as prescribed.

Article 33. The responsibilities of the State bank of Vietnam

To coordinate with relevant agencies and the World Bank to make procedures to receive capital sources from IDA and IBRD loans for project as prescribed.

Article 34. The responsibilities of People’s Committees of Dong Nai and Binh Thuan provinces

To implement the ground clearance of project and hand over project grounds under the plan on project ground clearance which being unified by the Ministry of Transport and relevant parties.