Decree No.15/2015/ND-CP dated 14/02/2015 on Public Private Partnership Investment (PPP) (Effective from 10/4/2015)

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1 Decree No.15/2015/ND-CP dated 14/02/2015 on Public Private Partnership Investment (PPP) (Effective from 10/4/2015) 1

2 Old legal framework on PPP Decision No. 71/2010/QD-TTg on pilot PPP Projects Decree No. 108/2009/ND-CP on BOT, BTO, BT Decree No. 78/2007/ND-CP on BOT, BTO, BT Decree No. 62/1998/ND-CP on BOT, BTO, BT of foreign investment Decree No. 77/CP (1997) on BOT of domestic investment Decree No. 87/CP (1993) on BOT of foreign investment 2

30/2015/NĐ-CP dated 17/3/2015 on Investor selection of PPP projects and projects using land CIRCULAR (Tentative) Circular on PPP Circular on management

3 Current legal framework on PPP LAW Law on Construction Law on Investment Law on Public Investment Law on Public Procurement DECREE Decree No.15/2015/NĐ-CP dated 14/02/2015 on PPP (replaces Decree 108 and Decision 71) Decree No. 30/2015/NĐ-CP dated 17/3/2015 on Investor selection of PPP projects and projects using land CIRCULAR (Tentative) Circular on PPP Circular on management and use of Project Development Fund (PDF) Circular on Request for Proposal for projects using land Circular on Request for Proposal for PPP Projects Circular on Request for Qualification s for PPP projects and projects using land 3

4 Contents of PPP Decree Includes 11 chapters, 73 articles Chapter 1: General provisions Chapter 2: Capital resources for project implementation Chapter 3: Formulation and publication of projects Chapter 4: Formulation, appraisal and approval of the feasibility study report Chapter 5: Selection of investor and signing of investment agreement and project contract Chapter 6: Procedure for investment registration and establishment of project enterprise Chapter 7: Project implementation Chapter 8: Finalization and transfer of project facilities Chapter 9: Investment incentives and guarantees Chapter 10: State responsibilities for management of public-private partnership investment Chapter 11: Implementing provisions 4

5 1. PPP Contract (Art.3) 4 Old provision (Decree 108 and Decision 71) 1. BOT 2. BTO 3. BT New provision of PPP Decree 1. BOT 2. BTO 3. BT 4. BOO 5. O&M 6. BLT 7. BTL

6 2. Investment sectors (Art.4) - Infrastructure facilities for traffic and transportation and relevant services - Lighting systems; water supply systems; drainage systems; waste and wastewater collection and treatment systems; social housings, resettlement housings, cemeteries - Power plants, power transmission lines; - Infrastructure facilities in healthcare, education, training, vocational training, culture, sport and other relevant services; office buildings of state agencies - Commercial, scientific and technological, hydro-meteorological infrastructure facilities, infrastructure facilities of economic zones and information technology parks; information technology applications - Agricultural and rural infrastructure facilities, development services for connecting the production with the processing and sales of agricultural products - Other sectors pursuant to Prime Minister s decision. 6

7 3. Focal point on PPP (Art.7) The State steering committee on PPP shall be established and operate in accordance with decision of the Prime Minister Focal point on PPP: Based on specific management requirements and conditions, Ministries, branches and provincial People s Committees shall assign a specialized unit under their direct management to be the focal point for PPP 7

8 4. Capital sources for supporting investment preparation (Art.6) ODA Concessional loans of donors Other capital sources - Ministry of Planning and Investment presides and manages the Capital sources for supporting investment preparation. Capital sources for supporting investment preparation - These funds shall be granted to Ministries, branches and provincial People Committee for preparation of PPP projects. Grant Ministries, branches and provincial People Committee Reimburse Selected Investor - The investor selected to implement project shall reimburse the costs for project preparation and success fee. 8

9 5. State investment capital for PPP project implementation (Art.11) Purposes Decree Decision Support in construction of auxiliary constructions, organization of compensation, land clearance and resettlement. 2. Investment capital for implementation of other supporting tasks for the project PPP Decree 1. Investment capital for constructing Project Facilities applied for contract types where the investment capital recovery and profits are generated from user fees but these proceeds are not enough to cover costs. 2. Payment for the availability of services provided by Investor under BTL, BLT contract. 3. Support in construction of auxiliary constructions, organization of compensation, land clearance and resettlement. 9

Approval in-principle on the use of State

10 Determination of the value of State investment capital for PPP project implementation (Art.12) Financial model of the Project Basis Approval in-principle on the use of State investment capital Capability of mobilizing and balancing public capital of the State 10

11 Plan for using the State investment capital for project implementation (Art.13) State investment capital shall be consolidated in the medium term public investment plan of 5 years and annual public investment plan 5-year public investment plan Annual public investment plan Plan for state investment capital for PPP project 11

12 6. PPP Project Cycle 1 Project proposed by ASAs 2 Project proposed by Investors Ministries, branches and provincial PC select Projects in accordance with Art.15; formulate, appraise, approve, publish the Project Proposal and Feasibility Study Report. The ASAs then conduct selection of investor according to Law on Procurement. New Projects proposed by Investor, which are not announced by ASAs 3 Group C Projects Procedure for selection of projects and investors are abridged. 12

experiences of the investor Capable of steadily and continuously providing products and services which satisfy the quality standards and meet demands of the users Total investment amount of

13 Requirements for selection of projects (Art.15) Conform to the master plans, plans for development and the socio-economic development plans Capable of attracting and receiving commercial capital sources, technologies and management experiences of the investor Capable of steadily and continuously providing products and services which satisfy the quality standards and meet demands of the users Total investment amount of 20 billion VND and above, except for projects developed under O&M contracts and agricultural projects Projects which are capable of recovering capital from the business activities shall be prioritized to be selected The investor(s) being a State owned enterprise must form a consortium with another enterprise in order to propose a project 13

14 7. Feasibility Study Report Responsibility of formulation of Feasibility Study Report (FS) - ASAs - Investor may formulate FS in accordance with requirements, agreements Contents of FS - Outpur specifications; - Risk analysis, and responsibilities of parties in risk management during project implementation.

15 8. Selection of Investor (Art. 29) Conditions, procedures for selection of investor shall be in accordance with the Law and regulations on public procurement Forms of selection Incentive Open tendering Direct negotiation Project proponents shall be entitled to incentives when their Project Proposal/FS are approved 15

16 9. Investment registration and establishment of project enterprise (Art. 40) 4 Decree 108 and Decision Appraisal for issuance of Investment Certificate 2. Time: 45 days 3. Issuance of Investment Certificate 4. Establishment of project enterprise Decree 15/2015/NĐ-CP 1. Investment registration 2. Time: 25 days 3. Group C projects will not have to get the Investment Certificate 4. For Group C projects, BT projects: It is not compulsory for establishment of project enterprise

17 10. Investment incentives, tax incentives (Art.55, 56) Incentives on corporate income tax imposed on investor, project enterprise Tax incentives Incentives on import and export duties imposed on goods imported to implement a project Incentives exemption from or reduction of land rent or land use fees for the area of land allocated by the State Tax incentives for foreign and domestic contractors participating in implementation of a project Other incentives 17

18 11. Investment guarantees and support - Allow for mortgaging assets or the rights to commercially operate the project facility (Art.58). - Guarantee that the land use purpose of the project shall remain unchanged in the entire implementation term of the project contract( Art.59). - Support land clearance and completing procedures for land allocation or lease of land to implement the project (Art.45). - Guarantee on the step-in rights of lenders - Guarantee on foreign currency conversion - Allow for agreement of the contracting parties on the application of foreign law governing the following Project contract - Commitment to the use of dispute settlement modes to ensure equality between investor and ASA. 18

19 Step-in right of lenders (Art.33) The lender shall have the right to take over on its own, or to appoint another competent organization to take over, all or some of the rights and obligations of the investor, project enterprise (hereinafter referred to as Step-in-Rights) in the event that the investor or the project enterprise fails to fulfill obligations under the project contract or loan agreements Lenders Agreement on step-in right ASAs 19

20 Guarantee on foreign currency conversion (Art.60) Permitted transactions Buy foreign currency Conduct foreign exchange activities to satisfy current transactions, capital transactions and other transactions; remittance abroad of capital, profit, proceeds from investment. Projects to be considered for guarantee on foreign currency conversion Infrastructure projects included in the Government investment program Other important projects approved by the Prime Minister Basis for guarantee on foreign currency conversion and appointment of an Agency for guarantee Orientation for Socioeconomic development Foreign exchange policy and FX reserve Objective and characteristics of the project No guarantee on Foreign Exchange Rate 20

21 Dispute settlement (Art.37, 63) Project contracts to which one party is foreign investor Contracts for which the GOV guarantees the performance of obligations The signing parties may agree on the application of foreign law governing the 02 contracts, which must not contradict the provisions of the laws of Vietnam on selection and application of foreign law Dispute Settlement (Art.63): - Mode of dispute settlement: negotiation, conciliation, by arbitration or by the courts - Dispute arising between the authorized state agency and a foreign investor or the project enterprise shall be settled by arbitration or by the courts of Vietnam or by an arbitral tribunal established by the parties 21

22 12. Transitional provisions - Project list published and approved by the Prime Minister: Not subject to re-approval - Feasibility study report approved: Not subject to re-approval - Project, for which a decision on investor selection has been approved: Not subject to re-selection of investor - Project contract initialed: Not subject to re-negotiation - Project for which an investment certificate has been issued or the project contract has been formally signed: Be implemented in accordance with the provisions of the investment certificate and the project contract - Project for which an undertaking or a written agreement or commitment of the Prime Minister, Ministries, branches and provincial PC on the use of State investment capital, investment incentives and guarantees: be implemented in accordance with such agreement or commitment. 22

Contact PPP Office (Ministry of Planning and Investment) Tel: 080

23 Contact PPP Office (Ministry of Planning and Investment) Tel: Fax: Website:

MINISTRY OF PLANNING AND INVESMENT PUBLIC PROCUREMENT AGENCY OVERVIEW OF PPP IN VIET NAM

MINISTRY OF PLANNING AND INVESMENT PUBLIC PROCUREMENT AGENCY OVERVIEW OF PPP IN VIET NAM HCM city, 22 May 2018 1 Content 1. PPP decree and Investor selection decree 2. Overview of potential projects 2