Law 64/2020/QH14 on Public private parnership investment (PPP) (Part 2)

1 Chapter I. ENERAL PROVISIONS


Chapter V. PPP PROJECT CONTRACT IMPLEMENTATION

Section 1. CONSTRUCTION OF FACILITY, INFRASTRUCTURE SYSTEM

Article 56. Preparation of construction site

The Provincial People’s Committee shall chair and co-operate with the competent agency, the contract signing agency to organizing land clearance and completing procedures for land allocation or land lease, handover the ground to implement the project in accordance with the law and regulations on land, PPP project contract and other relevant contracts.

Article 57. Preparation, appraisal, approval of designs after basic designs and cost estimation

1.                         Pursuant to the feasibility study and provisions of PPP project contract, the project enterprises shall carry out one or several tasks as below:

a)                             Formulate the construction design after basic design, for sub-project or component using public investment capital, cost estimation shall be formulated to submit to the construction specialized agency for appraisal in accordance with law and regulations on construction;

b)                         Formulate design for sub-project or component using public investment capital, cost estimation shall be formulated to submit to the specialized agency for appraisal in accordance with other relevant laws and regulations to organize the appraisal.

2.                         The PPP project enterprise shall approve designs, the cost estimation stipulated in clause 1 of this Article and submit to the contract signing agency the following documents in order to conduct the monitoring and supervision:

a)                          The approved design dossiers and cost estimation;

b)                          The appraisal documents of specialized agencies on design, cost estimation.

Article 58. Selection of contractor for PPP project implementation

PPP project enterprise shall issue regulation on selection of contractors to be applied consistently in the project enterprise based on the following principles:

1.                         Ensure the fairness, transparency and economic efficiency.

2.                          Ensure that it does not impact or negatively affect national defense, security, state secret, national interests, community interests and interests of competent agency and contract signing agency.

3.                             Selected contractors must fully meet the requirements for qualification, experiences and have feasible solutions for implementation of package, project; be responsible for the quality and progress of package execution under the contract signed with the PPP project enterprise, in which presents the binding content of responsibility if the quality of the facility, infrastructure system does not meet the requirements of the PPP project contract. The PPP project enterprise is responsible for the quality and progress of the project.

4.                          The use of domestic contractor is encouraged for the work within capacity of domestic contractor.

5.                            Foreign labour shall only be used if domestic labour does not meet the requirements.

Article 59. Management and supervision of the quality of facility, infrastructure system

1.                           The PPP project enterprise is responsible for organizing the management, supervision of the quality, acceptance of items and entire facility, infrastructure system according to applicable laws and regulations.

2.                           During the construction of facility, infrastructure system as specified in the contract, the contract signing agency is responsible for:

a)                          Organizing the inspection on the PPP project enterprise’s supervision on the construction process of facility, infrastructure system;

b)                            Inspecting the compliance with procedures, standards and norms for the construction;

c)                          Carrying out the verification of the quality of parts, components and the whole of facility, infrastructure system when there is any suspicion of the quality or at the request of a state management agency;

d)                           Proposing the PPP project enterprise to request the contractor to adjust or suspend construction when it considers that the quality of work performed does not meet the requirements.

3.                             The contract signing agency may recruit consultants to assist in their fulfillment of the responsibilities specified in clause 2 of this Article.

4.                           The costs of recruiting consultant to verify the quality and other relevant expenses shall be performed as follows:

a)                           If the contract signing agency concludes that the quality of infrastructure facilities and systems does not meet the requirements of the contract due to the fault of the PPP project enterprise, the contractor, the PPP project enterprise must pay the costs;

b)                           In case the contract signing agency concludes that the quality of facility, infrastructure system meet the requirements of the contract or concludes that the quality does not meet the requirements of the contract but is not due to the fault of the PPP project enterprise, the contract signing agency shall use the project implementation expenses prescribed in clause 3, Article 73 of this Law for payment.

Article 60. Finalization of investment capital for the construction of facility, infrastructure system

1.                           Upon the completion of construction of facility, infrastructure system, the contract signing agency shall perform the finalization of public investment capital in the PPP projects as below:

a)                          In case the portion of public investment capital in PPP project is managed and used as prescribed in point a clause 5 Article 70 and clause 2 Article 72 of this Law, the contract signing agency and the PPP project enterprise shall carry out procedures to finalize public investment capital in PPP project pursuant to the laws and regulations similarly to public investment projects;

b)                          In case the portion of public investment in PPP project is managed and used as prescribed in point b clause 5 Article 70 of this Law, the contract signing agency shall aggregate the amount which has been disbursed to the PPP project enterprise and audited by independent auditors a basis for finalizing amount of public investment capital in PPP project. The public investment capital in PPP project shall be finalized not exceeding the limit of state capital determined in the contract.

2.                           Upon the completion of construction of facility, infrastructure system, the contract signing agency and the PPP project enterprise shall carry out finalization the investment capital for construction of facility, infrastructure system. The amount of investment capital for construction of facility, infrastructure system or the finalized amount for project without construction component shall be determined based on the signed contract.

3.                           The contract signing agency and the PPP project enterprise shall agree on selecting an independent qualified auditing organization to audit the investment capital for construction of facility, infrastructure system.

4.                         The Government shall provide guidance on this Article.

Article 61. Certification of completion of infrastructure facilities and systems

1.                            Upon completion of infrastructure facilities and systems, the PPP project enterprise shall carry out acceptance of the facility, infrastructure system according to the law and regulations on construction or other relevant laws and regulations as the basis to formulate the dossier requesting for certification of completion.

2.                           Based on the dossier requesting for certification of completion of facility, infrastructure system according to clause 1 of this Article, the contract signing agency shall inspect and issue the certification of completion to the PPP project enterprise. In case a PPP project enterprise is able to complete the construction phase ahead of schedule or to save investment costs, the certification of completion of   facility, infrastructure system shall not affect the contract duration or schedule of tariff, fee of public goods and services stipulated in the contract.

3.                            The Government shall regulate on dossier and timeline for issuance of certification of completion of facility, infrastructure system.

Section 2. MANAGEMENT, OPERATION, CONDUCTION OF BUSINESS ACTIVITIES OF INFRASTRUCTURE FACILITIES AND SYSTEMS

Article 62. Management of PPP project

The management of facility, infrastructure system and other assets during the implementation of PPP project shall comply with this Law, other relevant laws and regulations and PPP project contract.

Article 63. Conditions for commercial operation of facility, infrastructure system

1.                          Except for the case stipulated in clause 2 of this Article, the project enterprise shall be allowed to commercially operate the facility, infrastructure system upon the certification of completion by the contract signing agency as stipulated in Article 61 of this Law.

2.                          Regarding PPP projects applying O&M contract, PPP project enterprise shall commercially operate the facility, infrastructure system from the effective date of PPP contract.

Article 64. Provision of public goods, services

1.                         During the commercially operation of infrastructure facilities and systems, PPP project enterprises shall have the following responsibilities:

a)                          Exercise of rights and obligations to supply public goods, services and other conditions agreed in the contract;

b)                              Ensure the use of facility, infrastructure system in accordance with the conditions specified in the contract;

c)                          Treat all users of public goods, services provided by PPP project enterprise fairly; shall not be allowed to refuse provision of public goods, services to users;

d)                          Receive and promptly handle user’s comments on the quality of public goods, services provided by the PPP project enterprise;

dd) Conduct periodical repairing and maintenance to ensure the safe operation of facility, infrastructure system as per the designs or processes committed in the contract.

2.                          Competent agency, signing contract agency shall coordinate with PPP project enterprise to perform responsibilities specified in point d, clause 1 of this Article.

Article 65. Tariff, fee of public goods, services

1.                          Tariff, fee of public goods, services and conditions, procedures for adjustment shall be specified in the PPP project contract on the principle of ensuring the interests of investor, PPP project enterprise, users and the State and enabling the investor, PPP project enterprise to recover investment capital and gain profits. The tariff, tariff framework for public goods and services throughout the contract duration must specify the starting tariff and the tariff for each period to ensure the correctness, adequacy and publicity, transparency of the tariff forming elements.

2.                         The application of subsidy of tariff, fee of public goods and services shall subject to applicable laws and regulations.

3.                         Agreement on adjustment of tariffs, fee of public goods, services for each period in PPP project contract shall comply with the law and regulations on tariff, fee.

4.                          When adjusting the tariff, fee for public goods and services, the disclosure of adjusted information is performed as follows:

a)                          At least 10 days before the application of adjusted tariff, fee of public goods or services, the contract signing agency shall disclose information in accordance with Article 9 of this Law;

b)                           PPP project enterprise shall list the adjusted tariff and fee of public goods, services at the places of supplying public goods and services in accordance with the law on tariff and fee.

Article 66. Supervision of the quality of public goods and services

1.                          PPP project enterprise shall ensure and be responsible for the quality of public goods, services according to PPP project contract.

2.                         The contract signing agency shall be responsible for organizing the supervision of the quality of public goods, services provided by the PPP project enterprise under the PPP project contract.

3.                          In case of considering that the quality of public goods, services does not meet the requirements of project contract, the contract signing agency shall require PPP project enterprise to remedy by the deadline stipulated in the contract; in case the PPP project enterprise fails to remedy or delay the rectification, the measures to handle violations as stipulated in the contract shall be applied.

4.                         The contract signing agency may recruit consultant to assist in their fulfillment of the responsibilities specified in clause 2 of this Article. The costs of recruiting the consultants shall be paid in accordance with clause 4 Article 59 of this Law.

Section 3. TRANSFER OF FACILITY, INFRASTRUCTURE SYSTEM, PPP PROJECT CONTRACT LIQUIDATION

Article 67. Transfer of facility, infrastructure system

1.                         Transfer of facility, infrastructure system and verification of the quality, value of facility, infrastructure system before transferring shall be implemented due to the stipulations in the PPP project contract. The remaining value of infrastructure facility, infrastructure system after being transferred is aggregated into the state asset and state budget according to law and regulations on management and use of pubic assets and law and regulations on state budget.

2.                          Process and procedure of handling the transferred assets shall comply with the law and regulations on management and use of public assets.

3.                         The Government shall provide guidance on Clause 2 of this Article.

Article 68. PPP project contract liquidation

1.                         The PPP project contracts shall be liquidated as follows:

a)                           In case the parties have fulfilled their contractual obligations; the contract signing parties confirm the fulfillment and termination of rights and obligations of the parties;

b)                          In case the contract is terminated early according to the provisions of clause 2 Article 52 of this Law, the contract signing parties shall confirm the fulfilled obligations and the parties’ responsibilities for the parts that have not been finished.

2.                          The deadline for liquidation of a PPP project contract shall be agreed by the contracting parties, but must not exceed 180 days from the date the parties fulfil the contractual obligations in the contract or the date of the parties agreed to early termination of contract.

3.                          In case of expenses incurred when liquidating a contract prescribed in clause 1 of this Article, the content of contract liquidation must determine the obligations of the contract signing agency and the PPP project enterprise for the expenses incurred.

Chapter VI. SOURCES OF CAPITAL FOR PPP PROJECT IMPLEMENTATION

Section 1. STATE CAPITAL IN PPP PROJECT

Article 69. Use of state capital in PPP project

1.                         State capital shall be used for the following purposes:

a)                          To support the construction of facility, infrastructure system of PPP project;

b)                          To make payment to the PPP project enterprise for provision of public goods, services;

c)                           To pay the cost of compensation, land acquisition, support and resettlement; support on constructing the temporary facility;

d)                          To pay the revenue shortfall;

dd) Expenditures of the competent agency, the contract signing agency, the PPP project preparation unit, the procuring entity in order to implement their duties as stipulated in Article 11 of this Law;

e)                           Expenditures of the appraisal council of PPP project, the assigned unit for appraisal of PPP project.

2.                          The percentage of state capital for PPP project as prescribed in points a and c, clause 1 of this Article shall not exceed 50% of the total investment of the project. For project composing of various component projects, including the component project applying PPP investment modality, the percentage of state capital as stipulated in this clause shall be determined on the total investment of that component project.

3.                          The Government shall provide guidance on the use and management of state capital in PPP project.

Article 70. State capital for supporting the construction of facility, infrastructure system

1.                           State capital for support to the construction of facility, infrastructure system means the state capital used for support to the implementation of the project during the construction period to increase the financial efficiency of the project.

2.                             Percentage of state capital for support to the construction of facility, infrastructure system shall be determined on the basis of the preliminary financial plan presented in pre-feasibility study when approving in principle the investment.

3.                          Percentage and value of state capital for support to the construction of facility, infrastructure system shall be paid as stipulated in PPP project contract.

4.                          State capital for support to the construction of facility, infrastructure system is allocated from the following sources:

a)                           Public investment capital as regulated in the law and regulations on public investment;

b)                          Value of public assets as regulated in the law and regulations on the use and management of public assets.

5.                           The use and management of State capital for support to the construction of facility, infrastructure system which is allocated from public investment fund shall be carried out in one of the following forms:

a)                          Separating into sub-project in PPP project. The management and use of state capital shall comply with the law and regulations on public investment;

b)                           Allocating into specific component according to the percentage and value, schedule and conditions stipulated in the contract.

Article 71. State capital for payment to the PPP project enterprise for provision of public goods, services

State capital which is used to pay for PPP project enterprise in BLT contract and BTL contract based on the quality of public goods, services shall be allocated from state capital in PPP project and other lawful capital sources according to the applicable laws and regulations.

Article 72. State capital for compensation, land clearance, support on resettlement; support on construction of temporary facility

1.                         State capital for compensation, land clearance, support on resettlement; support on construction of temporary facility shall be allocated from public investment capital in accordance with law and regulations on public investment.

2.                          Based on the size and nature of each project, the contract signing agency shall consider the separation of State capital for for compensation, land clearance, support on resettlement; support on construction of temporary facility into component project(s) or sub-projects and implement such project(s) in accordance with law and regulations on public investment.

Article 73. Expenditures of competent agency, contract signing agencies, PPP project preparation unit, procuring entity, appraisal council of PPP project, unit assigned to appraise PPP project

1.                           The expenditures for project preparation of competent agency, PPP project preparation unit; the cost for organizing appraisal of the appraisal council of PPP project and the unit assigned to appraise PPP project; the cost for organizing the investor selection and signing contract of competent agency, procuring entity shall be allocated from public investment capital, other legal capital and shall be counted into the total investment of the project.

2.                         The selected investor is responsible for refunding the expenditures stipulated in clause 1 this Article to the state budget in accordance with law and regulations on state budget or to other lawful capital source that was used to prepare the project.

3.                           The cost of project implementation after contract signing inccured by the competent agency, the contract signing agency shall be allocated from the regular capital source of these agencies.

Article 74. Planning for public investment capital used in PPP project

Planning for public investment capital used in PPP project is stipulated as follows:

1.                          Pursuant to the in-principle investment approval by the competent authority, public investment capital used in PPP project shall be consolidated in the medium-term public investment plan.

2.                           Pursuant to the medium-term public investment plan, the feasibility study approved by the competent authority, the result of investor selection, public investment capital used in PPP projects shall be consolidated in the annual public investment plan.

3.                         In case PPP project that needs to use public investment capital but is not included in the list of projects in the medium-term public investment plan, it shall be considered, supplemented to this list using contingency source for medium-term public investment plan by the competent authorities. The process and procedure for adjusting the medium- term public investment plan shall comply with the law and regulations on public investment.

4.                           In case the PPP project applying BTL contract, BLT contract type that uses public investment capital to pay for the PPP project enterprise, the consolidation of public investment into the medium-term and annual public investment plans shall be in accordance with clause 1, clause 2 of this Article. Based on the PPP project contract term, public investment capital shall continue to be arranged in the next medium term.

Article 75. Estimating the recurrent expenditures and lawful incomes for regular spending of the state agency and publicly established non-for-profit unit

1.                            Based on the in-priciple investment approval, the fesibility study report approved by the competent authorities and the result of investor selection, the contract signing agency estimates the annual budget of the recurrent expenditure, the lawful incomes for regular spending of the state agency, the publicly established non-for-profit unit in order to pay for PPP project enterprise according to law and regulations on state budget.

2.                          For the recurrent expenditure stipulated in clause 3 Article 73 of this Law, the competent agency, the contract signing agency shall estimate the annual budget and submit to the competent authority for approval according to law and regulations on state budget.

Section 2. CAPITAL FOR PPP PROJECT IMPLEMENTATION OF INVESTOR AND PPP PROJECT ENTERPRISE

Article 76. Financial arrangement for PPP project implementation

1.                          Investor, PPP project enterprise are responsible for the contribution of equity and mobilization of loans and other lawful sources of capital to implement the project in accordance with stipulations in PPP project contract. The total loans of various borrowing forms must not exceed the total borrowing amount specified in the PPP project contract.

2.                           Within 12 months from the contract signing date, the investor, PPP project enterprise shall complete the financial arrangement; for project of which the investment is approved in priciple by the National Assembly, the Prime Minister, the duaration time may be extended but not exceed 18 months.

3.                         Form of handling in case the investor and PPP project enterprise cannot arrange their finance according within the duration prescribed in clause 2 of this Article must be specified in bidding document.

Article 77. Contribution of equity

1.                            The investor must contribute equity of at least 15% of the total project investment excluding the state capital stipulated in Article 70 and 72 of this Law.

2.                         Investors must contribute equity capital according to the schedule agreed in the PPP project contract.

Article 78. Issuance of PPP project enterprise bond

1.                           The PPP project enterprise shall be allowed to issue, and redeem its private placement bond issued according to the provisions of this Law, law and regulations on enterprises, law and regulations on securities in order to mobilize capital for implementation of PPP project; it is not allowed to issue convertible private placement bond and warrant-linked private placement bond.

2.                         The issuance of bond under the provisions of clause 1 this Article must meet the following conditions:

a)                          The amount of capital mobilized through the issuance of bond shall not exceed the value of the total borrowing amount determined in the PPP project contract;

b)                          The capital mobilized through the issuance of bonds is not allowed to be used for any purpose other than implementing the project under the PPP project contract or for restructuring debts of enterprise;

c)                          PPP project enterprise must open a blockage accounts to receive money from issuing bond. The disbursement of capital from bond issuance shall comply with the provisions of point b of this clause.

3.                           PPP project enterprise that operates for less than 1 year when issuing bond according to clause 1 of this Article shall be exempted from the conditions on presenting the audited financial statement of the year preceding the issuance year stipulated in the law on enterprise.

4.                         The Government shall provide guideline on this Article.

Chapter VII. INVESTMENT INCENTIVES AND GUARANTEES

Article 79. Investment incentives

Investor and the PPP project enterprise are entitled to incentives on taxes, land use fees and other incentives as prescribed by laws and regulations on taxation, land, investment and other relevant regulations.

Article 80. Investment assurance

1.                            Investor, PPP project enterprise are entitled to investment assurance as prescribed in this law and law and regulations on investment.

2.                          Assurance of access to land, exercise of land use rights and rights to use public property is stipulated as follows:

a)                          The PPP project enterprise to whom the State allocate or lease out the land by shall be allowed to use other public assets to implement PPP project contract in accordance with the law on land and the law on management and use of public assets;

b)                           The land use purpose of the project shall remain unchanged for the entire implementation term of the contract; including the case that lenders exercise their rights as prescribed in Article 53 of this Law.

3.                         Assurance of the provision of public goods is stipulated as follows:

a)                         The PPP project enterprise is permitted to use public facilities and other ancillary works to implement the project in accordance with law;

b)                          Where public services are scarce or where public facilities are limited to certain users, the project enterprise shall be given priority to be served with such services or to be granted the right to use such public facilities for the implementation of the project;

c)                            The competent agency shall be responsible for assisting the PPP project enterprise in conducting necessary procedures in order to obtain the priority in using public services and facilities.

4.                         Mortgage of assets, the rights to commercially operate the facility, infrastructure system is stipulated as follows:

a)                          The PPP project enterprise are permitted to mortgage assets, land use rights and the right to commercially operate the facility, infrastructure system for the lender in accordance with the law on land and the civil codes. The term of a mortgage must not exceed the term of the contract, unless the contract stipulates otherwise.

b)                         The agreement to mortgage assets or the rights to commercially operate the facility, infrastructure system must be made in writing and signed by the lender and the contract signing parties.

c)                          The mortgage of assets or of the rights to commercially operate the facility, infrastructure system must not adversely affect the objectives, scale, technical specifications, project implementation schedule or other conditions already agreed in the project contract.

5.                         The contract signing agency and competent authority shall coordinate with local government in implementing PPP project to ensure security and safety of human resource and assets of PPP project enterprise, contractor during the implementation of PPP project.

Article 81. Ensuring the balance of foreign currency for important PPP project

1.                         The Government shall decide on the application of guarantee mechanism on the balance of foreign currency for the project of which the investment is approved in principle by the National Assembly, the Prime Minister, based on the foreign exchange management policy, the ability to balance foreign currency in each period.

2.                          In the case that PPP project enterprise implementing the project stipulated in clause 1 of this Article already excercises the right to purchase foreign currency to meet the demand for current transactions, capital transactions and other transactions or transfering capital, profit and other investment liquidations to overseas in accordance with the law and regulations on foreign exchange management but the market does not meet the lawful foreign currency demand of project enterprise, it shall be guaranteed to foreign currency balance of no more than 30% project revenue in Vietnamese Dong after subtracting the expenditures in Vietnamese Dong.

Article 82. Mechanism for sharing revenue surplus and shortfall

1.                          When actual revenue reaches more than 125% of the revenue in the financial plan in PPP project contract, the investor, PPP project company shall share with the State 50% of the surplus between actual revenue and 125% of revenue in the financial plan. Sharing the surplus shall be applied after adjusting tariff, fee of public goods, services, adjusting PPP contract duration as stipulated in Articles 50, 51 and 65 of this Law and being audited by the State Audit on the surplus.

2.                         When actual revenue reaches less than 75% of the revenue in the financial plan in PPP project contract, the State shall share with the investor, the PPP project company 50% of the shortfall between 75% of revenue in the financial plan and actual revenue. Sharing revenue shortfall is applied when the following conditions are met:

a)                          The project applies the BOT, BTO, BOO contract type;

b)                          Change in master-plan, policy, relevant laws leads to revenue shortfall;

c)                           Having implemented all measures to adjust the tariff, fee of public goods, services, adjust the duration of PPP project contract as stipulated in Articles 50, 51 and 65 of this Law but not reached the minimum revenue of 75%;

d)                          Have been audited by the State Audit on the revenue shortfall.

3.                         Mechanism of sharing the revenue shortfall regulated in clause 2 of this Article shall be determined in the in-principle investment approval. Expenses for handling the mechanism for sharing revenue shortfall shall be from the central budget reserve for project under in-principle investment approval competence of the National Assembly, the Prime Minister, Minister, Head of central agency and other agency or local budget reserve for project under in-principle investment approval competence of Provincial People’s Council.

4.                         Annually, the parties to the PPP project contract shall determine actual revenue, submit to the competent financial authority for the implementation of mechanism for revenue surplus and shortfall sharing. The accounting of state budget revenue and expenditure when sharing the revenue surplus or shortfall shall comply with law and regulations on state budget.

5.                         The Government shall provide guidance on this Article.

Chapter VIII. EXAMINIATION, INSPECTION, STATE AUDIT AND SUPERVISION OF PPP INVESTMENT ACTIVITIES

Section 1. EXAMINATION AND INSPECTION, STATE AUDIT OF PPP INVESTMENT ACTIVITIES

Article 83 Examination of PPP investment activities

1.                         Contents of examination of PPP investment activities include:

a)                          The promulgation of guiding documents on PPP investment by the competent agencies;

b)                             Investment preparation, organization of investor selection, signing and implementing contracts;

c)                          Other activities related to PPP investment.


2.                         Examination of PPP investment activities shall be conducted regularly or at the discretion of the head of the examination competent authority.

Article 84. Inspection of PPP investment activities

1.                            Inspection of PPP investment activities means the specialized inspection according to law on inspection.

2.                          Inspection of PPP investment activities is carried out towards the competent agencies, the contract signing agencies, the investors, the PPP project enterprises, organizations or individuals involved in PPP investment activities specified in this Law.

Article 85. State audit in PPP investment

1.                          Audit the management and use of public finance, public assets and activities related to the management and use of public finance and public assets participating in PPP project in accordance with law on state audit.

2.                         Audit when implementing the mechanism for sharing revenue surplus, shortfall in accordance with Article 82 of this Law.

3.                         Audit the entire value of PPP project assets when transferring to the State.

Section 2. SUPERVISION OF PPP INVESTMENT

Article 86. Supervision of the State aministration agency on PPP investment

1.                           The State aministration agency on PPP investment at the central level shall supervise the process of implementing PPP projects as stipulated in points a, b and c clause 3 Article 4 of this Law and other projects as assigned by the National Assembly and the Prime Minister.

2.                            Local State aministration agency on PPP investment shall supervise the implementation process of PPP projects as stipulated in point d clause 3 Article 4 of this Law.

Article 87. Contents of supervision of the State aministration agency on PPP investment

1.                         Bidding document.

2.                         Result of investor selection.

3.                         The implementation of PPP project contract.

4.                          The results of the construction, infrastructure facilities quality verification as prescribed in point c, clause 2, Article 59 of this Law.

5.                         Results of public goods, services quality evaluation according to the provisions of clause 3, Article 66 of this Law.

6.                         Other contents at the requests of the National Assembly, the Prime Minister for cases prescribed in clause 1 Article 86 of this Law; at the requests of Provincial People’s Council for cases prescribed in clause 2 Article 86 of this Law.

Article 88. Supervision of the Vietnamese Fatherland Front and the community

Vietnamese Fatherland Front at all levels shall shall assume for supervising and guiding the investment supervision of the community where the PPP project is implemented in accordance with the law on the Vietnamese Fatherland Front and laws and regulations on community’s investment supervision.

Chapter IX. DUTIES, POWERS AND RESPONSIBILITIES OF STATE ADMINISTRATION AGENCIES IN PPP INVESTMENT

Article 89. Duties and powers of the Government, the Prime Minister

1.                         The Government has the following duties and powers:

a)                          Unify the state administration on PPP investment nation-wide;

b)                           Promulgate according to its competence or submit to competent authorities legislative documents on PPP investment;

c)                          Organize the examination, inspection of implementation PPP investment.

2.                         The Prime Minister has the following duties and powers:

a)                             Promulgate according to its competence legislative documents on PPP investment;

b)                          Decide to cancel or suspend the PPP project contract of project to which the investment is approved in principle by the National Assembly, the Prime Minister.

Article 90. Duties and powers of the Ministry of Planning and Investment

1.                          Perform the function of the state administration agency on PPP investment at the central level, take responsibilities before the Government for implementation the state administration on PPP investment nation-wide.

2.                            Promulgate according to its competence or submit requests to competent authorities to issue legislative documents in PPP investments.

3.                          Preside over and coordinate with the competent agencies to examine, inspect, supervise; annual consolidate, evaluate the implementation of PPP projects nation-wide.

4.                         Develop and manage the information system and database on PPP investments.

5.                         Perform other duties and exercise other powers stipulated by legal regulations.

Article 91. Duties and powers of the Ministry of Finance

1.                          Promulgate according to its competence or submit to competent authorities to issue legislative documents relating to financial mechanism on PPP investment.

2.                          Lead in formulating and implementing a mechanism for sharing of the revenue surplus, shortfall of project for which the National Assembly, the Prime Minister, Ministers, Head of central-level agencies and other agencies having authority to approve in principle the investment.

3.                         Perform other duties and exercise other powers stipulated by legal regulations.

Article 92. Duties and powers of ministries, central-level agencies, other agencies

1.                         Undertake the administration and provide guidance on PPP investment in sectors within the scope of its administration.

2.                          Undertake the responsibilities of the competent agency stipulated in Article 94 of this Law for PPP projects within their competence.

3.                              Annually summarize, evaluate and report the status of PPP project implementation within the scope of its administration.

4.                         Undertake other duties and exercise other powers stipulated by legal regulations.

Article 93. Duties and powers of Provincial-level People’s Committees

1.                          Perform fuction of the state administration agency on PPP investment at local level.

2.                          Undertake the responsibilities of the competent agency stipulated in Article 94 of this Law for PPP project contracts within their own competence; decide to cancel or suspend PPP contract of project to which the investment is approved in principle by the Provincial-level People’s Council;

3.                              Annually summarize, evaluate and report the status of PPP project implementation within the scope of local administration;

4.                          Lead and coordianate with PPP project enterprise to organize compensation, land clearance, support on resettlement for project within its administration; preside and co-orporate with ministries, central-level agencies, other agencies, PPP project enterprise to organize compensation, support on resettlement for project under their administration.

5.                         Perform other duties and exercise other powers stipulated by legal regulations.

Article 94. Responsibilities of the competent agencies

1.                           Organize the preparation of pre-feasibility study, feasibility study of PPP projects and organize the selection of investors, negotiate and sign PPP project contracts according to their competence stipulated in this Law.

2.                           Cancel the procurement process, suspend the procurement process, reject investor selection results or nullify decisions of procuring entities when violations of regulations on PPP investments, investor selection or other relevant legislations are detected.

3.                            Decide to cancel, suspend PPP contract of project under its in-principle investment approval competence, acccording to the provisions of this Law.

4.                         Requesting the procuring entities, contract signing agencies to provide materials and documents for the examination, inspection, supervision and monitoring, handling petitions, sanctioning violations on PPP investments.

5.                         Compensate for damage according to the provisions of law.

6.                              Be accountable for the implementation of the stipulations in this Article at request of the supervisory agency, examination and inspection agency, and the state administration agency on PPP investment.

7.                            Publicize PPP project information; periodically report to the PPP State administration agency at central level on the implementation of PPP projects under their authority.

8.                         Perform other responsibilities stipulated by this Law.

Chapter X. RESOLUTION OF COMPLAINTS, DISPUTES AND VIOLATIONS

Article 95. Resolution of complaints in investor selection

1.                 When an investor has grounds to believe that their legitimate rights and benefits are affected, the investor has the right to:

a)                          File complaint to the procuring entity, the competent agency about the investor selection process; investor selection result in compliance with the resolution procedures as stipulated in Article 96 of this Law;

b)                          Initiate a lawsuit at the Court within the presciption validity according to the provisions of civil law.

2.                Procuring entity and competent agency shall not consider and handle complaints if investor have instituted lawsuit at the Court; in case the process of settling a complaint is happening according to the process specified in Article 96 of this Law, the agency that is handling the complaint shall issue a notice to terminate the consideration and settlement of the complaint.

Article 96. Procedure to settle a complaint in selection of investor

1.                           The procedure to settle a complaint on invesstor selection process shall be implemented as follows:

a)                           The investor files the complaint in writing to the procuring entity from the occurrence of the incident to the announcement date of investor selection result;

b)                          The procuring entity must send a written complaint resolution to the investor within 7 working days after receiving the investor’s complaint;

c)                          In case the procuring entity has no written response, or the investor does not agree with the results of the complaint resolution, the investor has the right to send the complaint letter to the competent agency within 5 working days from the deadline for response or the date of receiving the written response from procuring entity;

d)                            Competent agency must send a written resolution of the complaint to the investor within 07 working days from the date of receiving the written complaint of the investor.

2.                            The procedure to settle a complaint on invesstor selection result shall be implemented as follows:

a)                          The investor files the written complaint to the procuring entity in a period of 10 days from the date of receiving the announcement of the investor selection result;

b)                           The procuring entity must send written complaint resolution to the investor within 15 days from the date of receipt of the investor's complaint;

c)                          In case the procuring entity has no written resolution, or the investor does not agree with the results of the complaint resolution, the investor has the right to send the written complaint simultaneously to the competent authority and the standing authority of advisory board to resolve the complaint within 05 working days from the deadline for response or the date of receiving the written response from the procuring entity;

Advisory council on complaint resolution at central level is established by Minister of Planning and Investment; at ministries, central-level agencies and other agencies by ministers, heads of central-level agencies and other agencies; at local level by the Chairman of Provincial People’s Committee;

d)                          After receiving the written complaint, the complaint resolution advisory board has the right to request the investor, the procuring entity and the relevant agency to provide the information for consideration and submit the written report to the competent agency on its position asto the complaint within a period of 30 days from the date of receiving the investor's complaint;

dd) If needed, based on the complaint contents, the complaint resolution advisory board may request the competent agency to consider temporary suspension of the selection process. If the request is approved, within 5 working days from the date of receiving the written request from the advisory board, the competent agency shall issue a written notice of the temporary suspension of selection process. Such notice shall be sent to the procuring entity and investor within 5 working days from the date of the notice of temporary suspension of selection process. The temporary suspension duration shall be calculated from the date that the procuring entity receives the notice of temporary suspension of selection process until the competent agency issues the complaint resolution letter;

e)                          The competent agency issues complaint resolution letter on investor selection result within 10 days from the receiving date of the written response from the complaint resolution advisory board.

3.                          In case the investors send written complaint directly to the competent agency without compliance with the resolution procedures specified in this Article, such complaint shall not be reviewed and handled.

Article 97. Dispute resolution

1.                         Dispute between competent agency, contract signing agency and investor or PPP project enterprise and any dispute between PPP project enterprise and other economic entity participating in project implementation shall be resolved by negotiation, mediation, Arbitration or Court.

2.                           Dispute between competent agency, contract signing agency and domestic investor or PPP project enterprise established by domestic investor; dispute between domestic investors; dispute between domestic investor or PPP project enterprise established by a domestic investor and Vietnamese economic entity shall be resolved by Vietnamese Arbitration or Vietnamese Court.

3.                              Dispute between competent agency, contract signing agency and foreign investor or PPP project enterprise established by foreign investor shall be resolved by Vietnamese Arbitration or Vietnamese Court, except otherwise agreed in the contract or sipulated in the international treaty that the Socialist Republic of Vietnam is a member.

4.                          Dispute between investors where at least one foreign investor involves; dispute between investor or PPP project enterprise and foreign individual or organization shall be resolved by one of the following agencies, organizations:

a)                            An arbitration of Vietnam;

b)                          A court of Vietnam;

c)                            A foreign arbitration;

d)                          An international arbitration;

dd) An arbitration established upon agreement by the disputed parties.

5.                         Disputes resolved by Arbitration defined in the signed PPP project contract and relevant contracts are commercial disputes. The decisions of the foreign arbitrators shall be recognized and enforced in accordance with the law on the recognition and enforcement of foreign arbitrator decisions in Vietnam.

Article 98. Handling of violations in PPP investments

1.                           Prohibit of PPP investment is applied to organizations and individuals that commit violations stipulated in Article 10 of this Law.

2.                          Cancel procurement process, suspend the procurement process, reject investor selection result or nullify decision of procuring entity, the competent agency, the contract signing agency when violations of regulations of this Law and other relevant legislations are detected.

3.                          Terminate contracts, suspend the implementation of contracts when breach of contract or violations of regulations of this Law and other relevant legislations are detected.

4.                          In addition to the handling of violations stipulated in clauses 1, 2 and 3 of this Article, organizations and individuals that commit acts of violating the law and regulations on PPP investment, depending on the nature and level of their violations, shall be disciplined, administratively sanctioned or criminal prosecuted according to the provisions of law.

5.                         The Government shall provide guidance on this Article.

Chapter XI. IMPLEMENTING PROVISIONS

Article 99. Amendments and supplements to other relevant Laws

1.                              To amend, supplement several articles of the Procurement Law No. 43/2013/QH13 that has been amended and supplemented according to the Law No. 03/2016/QH14, Law No. 04/2017/QH14 and Law No. 40/2019/QH14 as follows:

a)                          To amend, supplement clause 3, Article 1 as follows:

“3. Select the investor to implement land used investment projects”

b)                          Amend, supplement clause 2, Article 3 as follows:

“In case of selection of bidding to supply raw materials, fuels, materials, supplies, consulting services and non-advisory services to ensure continuity of production, business and procurement activities in order to maintain the regular operation of state- owned enterprises, enterprises must promulgate regulations on contractor selection to uniformly apply in enterprises on the basis of ensuring fair objectives, transparency and economic efficiency”.

c)                          To amend, supplement Clause 10 Article 4 as follows:

“10. Project enterprise means an enterprise established by an investor to execute an investment project that uses land”.

d)                          To amend, supplement Clause 12 Article 4 as follows:

“12. Bidding is the process of selecting contractors to sign and perform contracts on the provision of consultancy services, non-advisory services, goods procurement and construction and installation; select investors to sign and execute contracts of investment projects using land on the basis of ensuring competition, fairness, transparency and economic efficiency”.

dd)To amend, supplement clause 4, Article 6 as follows:

“4. Investors participating in bidding must be legally independent and financially independent from the following parties:

a)                          Bidding consultancy contractors for investment projects that use land until the date of signing project contracts;

b)                          Competent agencies, procuring entities.”

e)To amend, supplement point i, Clause 1, Article 8 as follows “i) List of land used investment projects”.

g)                        To amend, supplement Clause 2, Article 15 as follows:

“Land used investment projects, except for restriction cases of investment in accordance with the investment law”.

h)                          To reject Article 68.

2.                         To amend, supplement Clause 4 Article 40 of the Law on Public Investment No. 39/2019/QH14 as follows:

“4. Principles, competence, contents and process of procedures for formulation, appraisal and decision of project feasibility studies of PPP investment comply with the law on PPP investment”.

3.                          To amend, supplement Clause 2 Article 20 of Law on Prices No.1/2012/QH13 as follows:

“2. Promptly adjust prices when price constituents change, particularly prices of public goods, services in PPP investment projects are adjusted by each period specified in the PPP project contract”.

4.                          To reject Point c, Clause 4 and Clause 5, Article 30 and Clause 4, Article 51 of the Law on Management and Use of Public Assets No.15/2017/QH14.

5.                         To amend, supplement several articles of Law Provision of Assistance for Small and Medium-Sized Enterprises No. 04/2017/QH14 as follows:

a)                          To amend, supplement Clause 2 Article 12 as follows:

“2. Ministries, ministerial-level agencies and provincial-level People’s Committees shall  establish  incubators, technical facilities  and  co-working spaces. Enterprises and other investment and business organizations may establish incubators, technical facilities and co-working spaces”.

b)                          To amend, supplement Clause 1 Article 13 as follows:

“1. Ministries, ministerial-level agencies and provincial-level People’s Committees shall establish product distribution chains. Enterprises and other investment and business organizations may allow to establish product distribution chains”.

5.                           To amend, supplement Clause 2 Article 39 of Law Hydrometeorology No. 90/2015/QH13 as follows:

“Public organizations on hydro-meteorology provide hydro-meteorological services according to their functions and tasks prescribed by competent agencies in accordance with the provisions of this Law and relevant laws; are entitled to exploit hydro-meteorological products and services of other organizations and individuals on the basis of orders or agreements as prescribed by law.

Other organizations and individuals provide hydro-meteorological services in accordance with this Law and relevant laws”.

6.                              To amend, supplement several articles of Law on Housing No. 65/2014/QH13 as follow:

a)                          To amend, supplement Clause 3 Article 36 as follows:

“The State directly constructs houses by government budget, government bonds, Official Development Assistance, concessional loans from sponsors, credit capital of the State covers an area determined to build houses for resettlement according to the approved plannings for lease, lease-purchase or sale for resettled people”.

b)                          To amend Clause 1 Article 53 as follows:

“The State constructs social housing by government budget, government bonds, Official Development Assistance, concessional loans from sponsors, credit capital of the State covers an area determined to build houses for resettlement according to the approved plannings for lease, lease-purchase or sale for resettled people”.

c)                          To reject point b, Clause 3 and Clause 40, Point b, Clause 1, Article 114.

7.                          To reject point c Clause 4 and Clause 5 Article 30, Clause 4 Article 51 of Law on management and use the public property No.15/2017/QH14.

Article 100. Effectiveness

1.                         This Law takes effect as of 01 January, 2021, except the provisions of clause 6, Article 101 of this Law.

2.                              The Government, State administration agencies shall provide detailed regulations on the Articles, clauses as assigned in this Law.

Article 101. Transitional provisions

1.                           The project of the sectors stipulated in clause 1 Article 4 of this Law and of the scale of total investment stipulated in clause 2 Article 4 of this Law shall be implemented as follows:

a)                          In case the investment has been approved in principle by competent authority before the effective date of this Law, the successive steps shall be implemented in accordance to this Law. In case the in-principle investment approval needs adjustment, such adjustment shall be implemented according to Article 18 of this Law;

b)                         In case the feasibility study has been approved by the competent authority before the effective date of this Law, the successive steps shall be implemented in accordance with this Law without conducting the process of project approval stipulated in this Law; for the case that non of the steps of investor selection has been carried out, there needs approval of additional contents as stipulated in clause 6, Article 23 of this Law;

c)                            For project in the cases specified in points a and b of this Clause, if the percentage of state capital in PPP project is higher than the percentage specified in clause 2, Article 69 of this Law, no adjustment to the approved percentage shall be required.

2.                          The project that is not in the sectors specified in clause 1 Article 4 of this Law, not of the scale of total investment specified in clause 2 Article 4 of this Law but until the effective date of this Law, or to which the prequalification result has not been approved or bidding document/requirement document (for project not applying prequalification) has not been issued, shall be stopped.

3.                         The PPP project that is in the process of investor selection shall be implemented as follows:

a)                          In case the prequalification result of the investor has been approved before the effective date of this Law, the project shall contitnue its implementation in accordance with this Law.

b)                          In case the bidding document/requirement document has been issued before the effective date of this Law but the deadline for bid submission is after December 31, 2020, the procuring enity shall be responsible for extending the deadline for bid submission to modify the bidding document, requirement document in accordance with this Law without leading to any adjustment to in-principle investment approval or adjustment to feasibility study approval;

c)                           In case of the project that reached approval of investor selection result, but contract negotiation and contract signing be carried out after the effective date of this Law, the contract signing agency shall be responsible for organizing the contract negotiation, contract signing based on the results of investor selection, bid, proposal, bidding document, requirement document in accordance to this Law without leading to any adjustment to in-principle investment approval, adjustment to approved feasibility study.

4.                          Project contract signed before the effective date of this Law shall continue its implementation according to terms and conditions of the project contract.

5.                          From the effective date of this Law, the transition for project of Build-Transfer (BT) contract type the shall be as follows:

a)                          For the project has not issued bidding document, requirement document, stop the process; for the bidding document, requirement document has been issued, continue the process based on the issued bidding document, requirement document and applicable laws and regulations at the time of issuing bidding document, requirement document;

b)                           For the project that reaches approval of investor selection result before the effective date of this Law, the contract signing agency shall organize the contract negotiation and contract siging based on the investor selection result, bids, proposals, bidding document, requirement document and applicable laws and regulations at the time of issuing bidding document, requirement document;

c)                            For the project to which project contract has been signed before the effective date of this Law, the project shall continue to be implemented and paid in accordance with the signed BT contract and applicable laws and regulations at the time of signing the contract;

d)                           Stop the implementation of new project applying BT contract.

6.                             Project applying BT contract that has not been approved in principle the investment shall stop its implementation from the date of 15 August, 2020.

7.                           The Government shall provide guidance on this Article.