Nghị định 22/2012/ND-CP

DECREE

ON MINERAL EXTRACTION RIGHT AUCTION

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

Pursuant to the Law on Mineral  No. 60/2010/QH12 November 17, 2010;

Pursuant to the Government’s Decree No. 17/2010/ND-CP on March 4, 2010, on property auction;

At the proposal of the Minister of Natural Resources and Environment;

The Government promulgates the Decree on mineral extraction right auction,

Chapter I

GENERAL PROVISIONS

Article 1. Scope of regulation

This Decree elaborates Clause 2, Article 79 of the Law on Mineral  No. 60/2010/QH12 November 17, 2010 of  the 7^th National Assembly on the principles, conditions and procedures for mineral extraction right auction.

Other provisions on auction must comply with law provisions on property auction.

Article 2. Interpretation of terms

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

1. Mineral extraction right auction means a form of public sale of mineral extraction right by increasing bids under the principles and procedures specified in this Decree.

2. Bidder are the legal representatives of eligible organizations and individuals attending mineral extraction right auctions (hereinafter referred to as bidders).

3. Auction guarantee is the commitment made by a credit institution to assure the financial obligation fulfillment of organizations and individuals participating in the Mineral extraction right auction.

Article 3. Principles of mineral extraction right auction

Mineral extraction right auctions shall be held in accordance with the following principles:

1. Transparent, open, continuous, equitable and in which the lawful rights and interests of bidders are protected.

2. An mineral extraction right auction shall be held only when at least 3 bidders attend the auction.

3. Mineral extraction right auction shall only be held at areas of which auction plans have been approved by competent State agencies.

Article 4. Reserve price

1. The reserve prices are set by a state management agency competent to issue mineral extraction licenses specified in Article 82 of the Law on Mineral before an auction.

2. The reserve price in an mineral extraction right auction must not be lower than the price the mineral extraction right.

3. The Ministry of Natural Resources and Environment shall be in charge and cooperate with the Ministry of Finance in specifying the reserve price calculation in mineral extraction right auctions.

Article 5. Deposit

1. Deposit means an amount (in VND) paid by the bidders before the mineral extraction right auction. The deposit shall be decided by the mineral extraction right auction council (hereinafter referred to as auction council) as follows:

a) For auctions of mineral extraction rights areas with mineral exploration results, the deposit is 1%-15% of the reserve price;

b) For auctions of mineral extraction rights in areas in which mineral exploration has not yet been carried out, the deposit shall depend on mineral surveys and mineral assessment results and be calculated as specified in Point a this Clause.

2. Bidders may pay the deposit in cash or by auction guarantees as follows:

a) For cash payment, bidders shall deposit in the suspense account of the agency that receives bidder dossiers specified in Article 17 of this Decree;

b) For auction guarantees, bidders must submit their auction guarantees to the agency that receives the bidder dossiers.

3. The deadline for deposit payment stated in the bidding invitation is at least 7 (seven) days before the auction. Deposits of auction winners shall be remitted to the State Treasury and deducted from the auction winning amount when issuing the mineral extraction license.

Article 6. Deposit refund

1. Deposits shall be refunded at the end of the auction, except for the cases specified in Clause 2 of this Article.

2. Cases ineligible for deposit refund:

a) The bidders selected to attend the auction and paid the deposit are not present at the auction, except for force majeure;

b) The bidders withdraw their bids;

c) The auction winner refuses to sign the auction record;

d) The auction winner fails to submit the application for the mineral exploration license, mineral extraction license after the time limit specified in Points b and c, Clause 2, Article 11 of this Decree;

dd) The mineral exploration license is revoked as prescribed by law.

3. Deposit not being refunded in the cases specified in Clause 2 of this Article shall be remitted to the state budget.

Article 7. Charges and expenses for mineral extraction right auctions

The charges for mineral extraction right auction must comply with law on charges and fees.

Expenses for the compilation of bidding dossiers; the evaluation and selection of bidders; the organization of auctions by auction councils must comply with the law on property auction.

Chapter II

BIDDERS FOR THE MINERAL EXTRACTION RIGHT

Article 8. Conditions for bidders to attend auctions

1. Bidders may attend the auction when the following conditions are satisfied:

a) Being organizations and individuals of which the bidder dossiers are selected by a competent state agency specified in Article 19 of this Decree;

b) The auction charge and deposit have been paid as prescribed.

2. When legal status is changed, the selected bidder must submit additional documents to the agency that receives the bidder dossier before the auction.

3. An auction winner that refuses the auction winning result without obtaining the consent from the auction council shall be banned from any auction in 1 (one) year from the end of that auction.

Article 9. Subjects banned from auctions

1. The president and members of the auction council; officers that receive and prepare mineral extraction right bidding dossiers of the General Department of Geology and Minerals of Vietnam and provincial Services of Natural Resources and Environment of localities in charge of the area in which the mineral extraction right is up for auction; fathers, mothers, spouses and children of the above persons.

2. Other banned subjects under law provision on property auction.

Article 10. Rights and obligations of bidders

1. Bidders for the mineral extraction right have the rights to:

a) Have access to geological and mineral documents related to the area in which the mineral extraction right is up for auction under the law provisions on mineral and other related law provisions;

b) Carry out field surveys in the area in which the mineral extraction right is up for auction and take ground samples in the area in which the mineral exploration has not been carried out under Article 37 of the Law on Mineral;

c) Attend meetings related to the auction held by competent state agencies.

2. Bidders have the obligations to:

a) Strictly observe the rules and regulation on auction promulgated by the auction council and other relevant law provisions;

b) Other obligations as prescribed by law.

Article 11. Rights and obligations of auction winners

1. An auction winner have the rights to:

a) Be issued with the mineral extraction right auction winner certificate;

b) Use information on minerals related to the area in which  the mineral extraction right is given as prescribed by law provisions on  Mineral.

c) Be issued with the mineral exploration license, mineral extraction license after completing procedures for the application for the mineral activity license as prescribed by law provisions on mineral;

d) Other rights as prescribed by law.

2. The auction winner has the following obligations:

a) Paying the auction winning amount under Article 24 of this Decree and fulfill other financial obligations as prescribed by law;

b) Submitting the application for the mineral exploration license to a competent licensing state agency within 6 (six) months after the end of the auction in case no mineral exploration has been carried out in the area in which the mineral extraction right is up for auction.

c) Submitting the application for the mineral extraction license to a competent licensing state agency within 12 (twelve) months after the auction in case the mineral exploration has been carried out in the area in which the mineral extraction right is up for auction.

d) The acquired mineral extraction right must not be transferred to another organization or individual for making an application for the mineral extraction license;

dd) Other obligations under law.

Chapter III

MINERAL EXTRACTION RIGHT AUCTION COUNCIL, PROCEDURES FOR MINERAL EXTRACTION RIGHT AUCTION

SECTION 1. MINERAL EXTRACTION RIGHT AUCTION COUNCIL

Article 12. Mineral extraction right auction council

1. For minerals under the licensing authority of the Ministry of Natural Resources and Environment, the auction council shall be established by the Minister of Natural Resources and Environment to organize mineral extraction right auctions. The council consists of no more than 11 members, including:

a) The Council President being the Director of the General Department of Geology and Minerals of Vietnam;

b) The council members including 01 representative of the National Council for Assessment of Mineral Reserves and representatives of the Ministry of Justice; the Ministry of Natural Resources and Environment; the Ministry of Planning and Investment; the Ministry of Finance; the Ministry of Industry and Trade; and the Ministry of Construction, 01 representative of the General Department of Geology and Minerals of Vietnam being the council secretary, 01 representative of the provincial People’s Committee in charge of the mineral area up for auction, and specialists;

c) The Standing Auction Council affiliated to the Ministry of Natural Resources and Environment is the General Department of Geology and Minerals of Vietnam.

2. For minerals under the licensing authority of provincial People’s Committees, the mineral extraction right auctions shall be held by a professional auction organizations. The standing agency preparing documents and materials before and after an auction is the provincial Service of Natural Resources and Environment.

For a mines with complex geological structure or it is not able to hire a professional auction organization, the provincial People’s Committee shall establish an auction council to hold the mineral extraction right auction. An auction council consists of no more than 11 members, including:

a) The president being a leader of the provincial People’s Committee;

b) The members being representatives of the provincial the Service of Natural Resources and Environment; the Service of Planning and Investment; the Service of Finance; the Service of Industry and Trade; and the Service of Construction, the representative of the provincial Service of Natural Resources and Environment being the council secretary and the representative of the district-level People’s Committee in charge of the mineral area up for auction, and specialists;

c) The Standing Auction Council affiliated to the provincial People’s Committee is the provincial Service of Natural Resources and Environment.

3. The Ministry of Natural Resources and Environment shall promulgate the Regulation on the auction council operation.

Article 13. Authority and responsibilities of auction councils and professional auction organizations

1. Auction council:

a) Authority:

- Promulgating the auction regulation of the mineral extraction right auction;

- Determining the deposit specified in Article 5 of this Decree and bid increments for an auction session;

- Depriving the right to attend the auction of bidders that cause disturbance at the auction place or commits acts of collusion or compromise to suppress prices or other acts which affect the objectivity and truthfulness of the auction;

- Terminating or suspending the mineral extraction right auction when detecting violations of auction procedures.

b) Responsibilities:

- Operating the auction as prescribed in this Decree and the regulation of the auction council; being responsible for the truthfulness of auction winning results before law and to the state management agency competent to issue licenses;

- Settling complaints during the auction; assisting the state management agency competent to issue licenses in receiving, settling complaints intra vires, or suggest the settlement of complaints arising after the auction;

- Submitting the auction results to the state management agency competent to issue licenses for approval;

- Fulfilling other tasks as prescribed.

2. Professional auction organizations:

a) Authority:

- Requesting the provincial Service of Natural Resources and Environment to provide information about the area in which the mineral extraction right is up for  auction: bidder dossiers of eligible bidders; the reserve price;

- Requesting the provincial Service of Natural Resources and Environment to defray the cost of the mineral extraction right auction.

b) Obligations:

- Organizing the auction in accordance with the principles and procedures specified in this Decree and being responsible for the auction results;

- Providing the auction record for the Service of Natural Resources and Environment;

- Paying compensation for the damage caused by the auctioneer and other employees during the auction;

- Fulfilling other obligations as prescribed by law provisions on auction.

SECTION 2. PROCEDURES FOR MINERAL EXTRACTION RIGHT AUCTION

Article 14. Planning and announcing areas up for mineral extraction right auction

1. Bases for mineral extraction right auction planning:

a) The mineral extraction areas under the mineral planning specified in Points b, c and d, Clause 1, Article 10 of the Law on Mineral, which have been approved by competent state agencies;

b) The areas not put up for mineral extraction right auction specified in Clauses 3 and 4, Article 78 of the Law on Mineral, which have been approved by competent agencies;

c) The results and reality of mineral extraction and intensive processing of minerals in localities and nationwide; mineral demands for local, regional and national socio - economic development in the succeeding year.

2. Responsibilities for making and approving mineral extraction right auction plans

Under the authority to license the mineral extraction specified in Clauses 1 and 2, Article 82 of the Law on Mineral; and Clause 1 of this Article, the General Department of Geology and Minerals of Vietnam shall annually formulate and submit the plans on mineral extraction right auction to the Minister of Natural Resources and Environment for approval, the provincial Services of Natural Resources and Environment shall formulate and submit the plans on mineral extraction right auction to provincial People’s Committees for approval,.

3. After being approved, the list of mineral areas put up for auction and annual plans on mineral extraction right auction shall be publicly announced and posted on the websites of the Ministry of Natural Resources and Environment and provincial People’s Committees of in charge of the mineral areas.

Article 15. Mineral extraction right auction invitation

1. Based on approved annual plans on mineral extraction right auction, the General Department of Geology and Minerals of Vietnam and provincial Services of Natural Resources and Environment shall make the mineral extraction right auction invitation.

2. A mineral extraction right auction invitation must contain the following primary contents:

a) Names of the minerals, location of the mineral area put up for auction;

b) The scheduled place and time of the auction;

c) The basic geological and mineral information; mineral extraction conditions of the area put up for auction; methods of information reference, the current infrastructural conditions and the land use in the mineral area put up for auction;

d) The reserve price and deposit;

dd) The standards of bidder dossier evaluation;

e) The forms required in a bidder dossier (application for auction attendance; basic economic-technical requirements, etc.).

3. For mineral extraction right auction in an area with mineral exploration results, the agency that makes the auction invitation specified in Clause 1 of this Article shall on the written request for the specifications of the mineral extraction technology, intensive processing and use of minerals, including:

a) The minimum requirements for the methods, technology and equipment of mineral extraction and processing;

b) The minimum requirements for mineral quality after mineral extraction and processing;

c) The purposes and addresses of post-extraction mineral use in order to supply to mineral processing projects stated in the planning for extraction and utilization of the same kind of mineral approved by competent State agencies.

Article 16. Contents and forms of bidder dossiers

1. The bidder shall make a  bidder dossier and submit it to the agency specified in Article 17 of this Decree.

2. The documents in a mineral extraction right bidder dossier include:

a) The original application for mineral extraction right auction attendance;

b) The original or the authenticated copy of the business registration certificate; written introduction of capability and experience in mineral exploration, extraction and processing; introduction of financial capability and fund raising capability;

c) For areas with mineral exploration results, the bidders must formulate a preliminary investment program for mineral extraction, intensive processing, product sale and make a written commitment to implementing such program if they win the auction.

d) For an area without mineral exploration results, the bidders must formulate a preliminary investment plan on exploration, mineral extraction, intensive processing, product sale and make a written commitment to implementing such plan if they win the auction.

3. The Ministry of Natural Resources and Environment shall provide the forms of the application and other documents in the mineral extraction right bidder dossier.

Article 17. Bidder dossier-receiving agencies, method and time of receiving mineral extraction right bidder dossiers

1. Agencies receiving  bidder dossiers are regulated as follows:

a) The General Department of Geology and Minerals of Vietnam is the agency making, notifying and selling mineral extraction right bidding dossiers and concurrently the agency receiving mineral extraction right bidder dossiers, for minerals to be licensed by the Ministry of Natural Resources and Environment;

b) The provincial Service of Natural Resources and Environment is the agency making, notifying and selling mineral extraction right bidding dossiers and concurrently the agency receiving mineral extraction right bidder dossiers, for minerals to be licensed by provincial People’s Committees.

2. Mineral extraction right bidder dossiers shall be submitted directly to the bidder dossier-receiving agencies specified in Clause 1 of this Article.

The time limit for receiving mineral extraction right bidder dossiers is 30 (thirty) days counting from the date of closing the notification of an mineral extraction right auction specified in Clause 1, Article 18 of this Decree.

Article 18. Announcement and publication of information about mineral extraction right auctions

1. Based on the approved plan on mineral extraction right auction, The agencies competent to hold mineral extraction right auction specified in Article 12 of this Decree shall publicly announce the mineral extraction right auction at its office and on the website of the agency competent to issue licenses.

The time for notification and publication of an auction is 30 (thirty) consecutive days before the date of receiving mineral extraction right bidder dossiers. Information on an mineral extraction right auction shall also be published in the central or local means of mass media least twice with an interval of 3 (three) days.

2. Information on an mineral extraction right auction includes:

a) Name of the minerals, location of the mineral area put up for auction;

b) The reserve price, deposit;

c) The place and time of the auction;

d) The starting date of receipt of bidder dossiers;

e) Other relevant information.

Article 19. Selection of  bidder dossiers

1. After the deadline for receiving bidder dossiers, the bidder dossier-receiving agency shall examine the dossiers and select eligible bidders.

After 3 times of announcement and by the deadline for receiving mineral extraction right bidder dossiers, if the number of bidders is smaller than that specified in Clause 2, Article 3 of this Decree, the agency that receives the bidder dossier shall report such to the agency competent to issue licenses and shall not organize the auction.

2. The bidders selected for an mineral extraction right auction must fulfill the following requirements:

a) Its bidder dossier has the documents and materials made under Clause 2, Article 16 of this Decree;

b) It satisfies requirements on mineral exploration or mineral extraction under Articles 34 and 51 of the Law on Mineral;

c) It commits that its mineral extraction and processing equipment and technology and product sale plan conform with the requirements set in the bidding dossier.

3. Within 30 (thirty) days after the deadline for receiving bidder dossiers, the bidder dossier-receiving agency shall complete the selection of bidders’ dossiers for reporting to the auction council president.

For an auction conducted via professional auction organizations specified in Clause 2, Article 12 of this Decree, the provincial Service of Natural Resources and Environment shall transfer bidder dossiers of selected bidders to such organizations for holding the auction after the above time limit is over as prescribed in this Decree and the law provisions on property auction.

Within 30 (thirty) days after receiving a report on selection of bidder dossiers, the auction council president or the professional auction organization shall hold the mineral extraction right auction.

4. For disqualified bidder dossiers, the agency that receives the bidder dossier shall notify relevant organizations and persons in writing specifying the reasons

5. The agency that receives the bidder dossier is responsible for disclosing the list of eligible bidders and post it on the website of the agency competent to issue licenses before the auction is held; and notify in writing the time and place of the meeting providing information related to the auction; time of field survey in the area put up for auction; and time of auction charge and deposit payment to eligible bidders.

Section 3. ORGANIZATION OF MINERAL EXTRACTION RIGHT AUCTION

Article 20. Rules of an mineral extraction right auction

1. Before an auction is held, the bidder must present the auction council or the professional auction organization with the letter of introduction, the ID card; the receipt of auction fee, receipt of deposit or written auction guarantee.

A bidder may send no more than 3 bidders to attend the auction, one of them shall make bids.

2. During an auction, bidders must observe the following provisions:

a) Only exchange relevant information with each other, not with other organizations or individuals;

b) Do not use means of communications during the auction;

c) Do not cause disturbance or hindrance to the auction or to violate the lawful rights of other bidders;

d) Do not bribe in order to eliminate other bidders or collude with others to suppress prices.

3. When a bidder violates Clause 2 of this Article, the auction council president or the auctioneer may suspend the auction, make records and resume the auction only after the violation is handled as prescribed.

Article 21. Order and principles of mineral extraction right auctions

1. At the beginning of an auction, the auction council secretary shall introduce auction council members and representatives of relevant agencies and organizations; introduce the auction rules; announce the list of eligible bidders; call the roll of bidders and bid makers; and answer inquiries (if any).

2. The auction council president or auctioneer shall conduct the auction by direct secret bid through uninterrupted bidding rounds. The auction only closes after the auction winner is chosen.

The auction winner is the single organization or person offering the highest bid compared to the reserve price after all bidding rounds or the organization or person winning the draw in the case specified at Point a, Clause 5 of this Article.

3. After each bidding round, the auction council president or auctioneer shall publicly notifies the highest bid of the round. When two or more equal highest bids are offered, the auction council president or auctioneer shall continue distributing bid notes for another bidding round.

The reserve price of the next bidding round is the highest bid of the previous round. The bid written in a bid note  is valid when it equals the reserve price plus the bid increment multiplied by an integer.

The progress of an mineral extraction right auction shall be recorded in writing. After the auction, the auction council president or the auctioneer shall publicly notify the council’s conclusions and the auction winner. The auction winner must sign the auction record right at the auction.

5. Special cases

a) If after three consecutive bidding rounds, there are still two or more bidders offering the same highest bid, the auction council president or auctioneer shall hold a draw to choose the auction winner;

b) When the auction winner refuses the auction winning result, the bidder offering the second highest bid shall be considered and approved by the auction council to be the substitute winner;

c) When the substitute winner refuses the auction winning result, the auction council shall make the written cancellation of the auction result and report the case in writing to the agency competent to issue licenses for consideration and decision.

Article 22. Approval of auction winning results

Within 5 (five) working days after an mineral extraction right auction closes, the agency that receives the bidder dossier specified in Article 17 of this Decree shall submit the dossier on approving the auction winning results to the state agency competent to issue licenses . A dossier comprises:

a) The auction record;

b) The auction winner’s bidder dossier;

c) A draft written approval of the auction winning result.

2. Within 5 (five) working days after receiving a dossier for approval of auction winning result, the state agency competent to issue licenses shall issue a written approval of the auction winning result, or otherwise a notice specifying the reason and additional requirements (if any).

A written approval of the auction winning result must specify the full name and abbreviated name of the auction winner; name of the minerals; the location, coordinate and acreage of the area put up for mineral extraction right auction; rights and obligations of the auction winner, and the winning bid; commitments of the auction winner.

3. The written approval of the auction winning result is a legal basis for the agency competent to issue licenses to consider and license mineral extraction activities for the auction winner under the Law on Mineral.

Article 23. Notification of auction winning results

1. Auction winning results shall be notified publicly at the office of the agency that receives the bidder dossier and the website of the agency competent to issue licenses right after an auction closes.

The notification of auction winning results includes:

a) The name of the auction winner;

b) The name of the minerals; location of the area of which the mineral extraction right is acquired;

c) The winner’s bid.

2. The time limit for notifying and publishing auction winning results is 5 (five) days after an auction closes.

3. The results of the mineral extraction right auction licensed by the Ministry of Natural Resources and Environment shall also be published on the websites of provincial People’s Committees of the localities with mineral areas put up for auction.

Section 4. AMOUNT OF WINNING MINERAL EXTRACTION RIGHT AUCTION

Article 24. Mineral extraction right auction winning value

1. The mineral extraction right auction winning value for an area with mineral exploration results is the bidder’s auction winning amount calculated in VND.

2. The mineral extraction right auction winning value for an area without mineral exploration results is a percentage of the mineral deposit in that area.

The Ministry of Natural Resources and Environment shall be in charge and cooperate with the Ministry of Finance in, detailing the calculation in VND of the amount of winning an mineral extraction right auction in an area without mineral exploration results.

Article 25. Time of determination the mineral extraction right auction winning amount

1. For mineral extraction right auction in an area with mineral exploration results, the time for determining the auction winning amount is right after the auction is done.

2. For mineral extraction right auction in an area without mineral exploration results, the time for determining the auction winning amount is before granting a mineral extraction license.

3. The Ministry of Natural Resources and Environment shall be in charge and cooperate with the Ministry of Finance in, detailing the collection method and regimes on management and use of mineral extraction right auction winning amounts.

Chapter IV

IMPLEMENTATION PROVISIONS

Article 26. Effect

1. This Decree takes effect on May 15, 2012.

Article 27. Implementation responsibilities

1. The Ministry of Natural Resources and Environment shall be in charge and cooperate with the Ministry of Finance in guiding the implementation of this Decree.

Ministers, Heads of ministerial-level agencies, heads of governmental agencies, Presidents of provincial People’s Committees and relevant organizations are responsible for implementing this Decree.-