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Thursday, March 30, 2017

Circular No. 38/2015/TT-BCT of October 30, 2015

Updated: 11:13’ - 05/02/2016
THE MINISTRY OF
INDUSTRY AND TRADE
 
No. 38/2015/TT-BCT
THE SOCIALIST REPUBLIC OF VIETNAM
Independence - Freedom - Happiness

 
Hanoi, October 30, 2015
 

CIRCULAR
Detailing a number of contents on investment in the form of public-private partnership under the management by the Ministry of Industry and Trade
 
Pursuant to the Government’s Decree No. 95/2012/ND-CP of November 12, 2012, defining the functions, tasks, powers and organizational structure of the Ministry of Industry and Trade;
Pursuant to the Government’s Decree No. 15/2015/ND-CP of February 14, 2015, on investment in the form of public-private partnership;
Pursuant to the Government’s Decree No. 30/2015/ND-CP of March 17, 2015, guiding the implementation of the Bidding Law regarding selection of investors;
At the proposal of the Director of the Planning Department,
The Minister of Industry and Trade details a number of contents on investment in the form of public-private partnership under the management by the Ministry of Industry and Trade.

Chapter I
GENERAL PROVISIONS

Article 1. Scope of regulation and subjects of application
1. Scope of regulation
This Circular details fields of investment, the process and procedures for implementation and supervision of investment projects in the form of public-private partnership (PPP) under the management by the Ministry of Industry and Trade.
Thermal power plant projects invested under build-operate-transfer contracts are not governed by this Circular.
2. Subjects of application
This Circular applies to organizations and individuals involved in or related to investment in the PPP form.

Article 2. Interpretation of terms
In this Circular, the terms below shall be construed as follows:
1. Sector- or field-managing unit means a unit assisting the Minister of Industry and Trade in performing the function of state management; or a non-business unit serving the state management function of the Ministry of Industry and Trade specified in Article 3 of the Government’s Decree No. 95/2012/ND-CP of November 12, 2012, defining the functions, tasks, powers and organizational structure of the Ministry of Industry and Trade.
2. Project-proposing unit is either of the following units:
a/ For a project proposed by the Ministry of Industry and Trade: The sector- or field-managing unit or a public non-business unit directly attached to the Ministry of Industry and Trade.
b/ For a project proposed by an investor: The investor.
3. Feasibility study report-making unit is either of the following units:
a/ For a project proposed by the Ministry of Industry and Trade:  The sector- or field-managing unit or a public non-business unit directly attached to the Ministry of Industry and Trade. 
b/ For a project proposed by an investor: The investor.
4. Project proposal- and feasibility study report-appraising unit (below referred to as appraising unit) means a unit assigned by the Minister of Industry and Trade to take charge of appraisal or an appraisal council.

Article 3. Fields of investment under management by the Ministry of Industry and Trade
Projects on construction, renovation, operation and management of infrastructure facilities or on provision of equipment or public services in the following fields:
1. Power plants (including also projects on use of new and renewable energies); power transmission lines.
2. Commercial infrastructure facilities
a/ Markets;
b/ Trade centers, supermarkets;
c/ Trade fair and exhibition centers;
d/ Logistics centers;
dd/ Commodity warehouses.
3. Other projects specified in Clause 1, Article 4 of the Government’s Decree No. 15/2015/ND-CP of February 14, 2015, on investment in the PPP form (below referred to as Decree No. 15/2015/ND-CP) under the management by the Ministry of Industry and Trade.

Article 4. Responsibilities of the PPP-managing focal unit  
1. To formulate and disseminate policies and legal documents on investment in the PPP form.
2. To formulate and implement plans on infrastructure development investment, provision of equipment or services in the PPP form.
3. To organize investment promotion for announced projects.
4. To organize appraisal of project proposals and feasibility study reports.
5. To announce approved project proposals.
6. To formulate plans on the State’s investment capital for project implementation.
7. To monitor, evaluate and review the project implementation.
8. To perform other tasks as decided by the Minister of Industry and Trade.

Article 5. Formulation of plans on the State’s investment capital for project implementation
1. Sector- or field-managing units and public non-business units directly attached to the Ministry of Industry and Trade shall make plans on the State’s investment capital for project implementation under Articles 5 and 13 of Decree No. 15/2015/ND-CP and send them to the PPP-managing focal unit for submission to the Minister of Industry and Trade for incorporation in five-year medium-term public investment plans of the whole sector.
2. Based on medium-term public investment plans assigned to them and results of approval of feasibility study reports or project proposals (for group-C projects), sector- or field-managing units and public non-business units directly attached to the Ministry of Industry and Trade shall make and send plans on the State’s investment capital for project implementation to the PPP-managing focal unit before July 15 every year for incorporation in public investment plans for the subsequent year.
3. Pursuant to decisions on assignment of five-year and annual plans on development investment capital from the state budget, the Minister of Industry and Trade shall issue the list of PPP projects and capital amounts to be allocated to these projects.

Article 6. Appraisal council 
1. The Minister of Industry and Trade shall form an appraisal council to appraise project proposals and feasibility study reports of group-A and group-B projects.
2. Depending on the nature and size of each project, the Minister of Industry and Trade shall decide on the composition of the appraisal council and unit acting as the standing body of the appraisal council.

Chapter II
FORMULATION, APPRAISAL, APPROVAL AND
ANNOUNCEMENT OF PROJECTS


Section 1
PROJECTS PROPOSED BY THE MINISTRY OF
INDUSTRY AND TRADE


Article 7. Project selection conditions
A project proposed by the Ministry of Industry and Trade in an investment field specified in Article 3 of this Circular and selected to be implemented in the PPP form must satisfy the conditions prescribed in Clause 1, Article 15 of Decree No. 15/2015/ND-CP, specifically:
1. Being in line with the development master plan and plans of the industry and trade sector approved by competent authorities;
2. Being capable of attracting and receiving commercial capital, technologies and management experience of investors;
3. Being capable of providing products and services of quality meeting users’ demands in a continuous and stable manner;
4. Having a total investment capital of at least VND 20 billion, except investment projects under operate-manage contracts.

Article 8. Project proposal dossiers  
A project proposal dossier shall be made in 2 sets, each comprising:
1. A written request for appraisal of the project proposal;
2. The project proposal. Contents of the project proposal must comply with Clauses 2 and 3, Article 16 of Decree No. 15/2015/ND-CP.

Article 9. Appraisal and approval of project proposals
1. A project-proposing unit shall send a project proposal dossier to the PPP-managing focal unit.
2. Within 3 working days after receiving the dossier, the PPP-managing focal unit shall check the dossier and request supplementation if the dossier is incomplete and invalid.
3. Within 20 working days after receiving a complete and valid dossier, the appraising unit shall organize the appraisal of the project proposal.
In case of a project using the State’s investment capital, based on the expected capital amount and source to be used, the project-proposing unit shall prepare a proposal dossier for approval of the policy on use of the State’s investment capital under Clause 3, Article 17 of Decree No. 15/2015/ND-CP, and then submit it to the Minister of Industry and Trade for decision.
4. Within 5 working days after the appraisal conclusion is available, the PPP-managing focal unit shall submit to the Minister of Industry and Trade for approval the project proposal. In case the appraisal conclusion rejects the project proposal, the PPP-managing focal unit shall send a written notice clearly stating the reason for rejection to the project-proposing unit.

Section 2
PROJECTS PROPOSED BY INVESTORS

Article 10. Project selection conditions
A project proposed by an investor in an investment field specified in Article 3 of this Circular and selected to be implemented in the PPP form must satisfy the conditions prescribed in Clause 2, Article 20 of Decree No. 15/2015/ND-CP, specifically:
1. Being in line with the development master plan and plans of the industry and trade sector approved by competent authorities;
2. Being capable of attracting and receiving commercial capital, technology and management experience of the investor;
3. Being capable of providing products and services of quality meeting users’ demands in a continuous and stable manner;
4. Having a total investment capital of at least VND 20 billion, except for investment projects under operate-manage contracts.
5. Being proposed by a state enterprise which must enter into a joint undertaking with another enterprise.

Article 11. Project proposal dossiers  
A project proposal dossier shall be made in 2 sets, each comprising:
1. A written request for appraisal of the project proposal;
2. The project proposal. Contents of the project proposal must comply with Clauses 2 and 3, Article 16 of Decree No. 15/2015/ND-CP;
3. Documents certifying the legal status, capacity and experience of the investor;
4. Experience from the implementation of similar projects (if any);
5. Other necessary documents for explanation of the project proposal (if any).

Article 12. Appraisal and approval of project proposals
1. In case of a group-C project proposal:
a/ The investor shall send a project proposal dossier to the PPP-managing focal unit.
b/ Within 5 working days after receiving the dossier, the PPP-managing focal unit shall check the dossier and request supplementation if the dossier is incomplete and invalid.
c/ Within 20 working days after receiving a complete and valid dossier, the PPP-managing focal unit shall organize the appraisal of the project proposal.
d/ Within 5 working days the appraisal conclusion is available, the PPP-managing focal unit shall submit the project proposal to the Minister of Industry and Trade for approval. In case the appraisal conclusion rejects the project proposal, the PPP-managing focal unit shall send a written notice clearly stating the reason for rejection to the project-proposing investor.
2. In case of a group-A or group-B project proposal:
a/ The investor shall send a project proposal dossier to the PPP-managing focal unit.
b/ Within 5 working days after receiving the dossier, the PPP-managing focal unit shall check the dossier and request supplementation if the dossier is incomplete and invalid.
c/ Within 20 working days after receiving a complete and valid dossier, the appraising unit shall organize the appraisal of the project proposal.
d/ Within 5 working days after the appraisal conclusion is available, the PPP-managing focal unit shall submit the project proposal to the Minister of Industry and Trade for approval. In case the appraisal conclusion rejects the project proposal, the PPP-managing focal unit shall issue a written notice clearly stating the reason for rejection to the project-proposing investor.

Article 13. Announcement of projects
1. Within 7 working days after a project proposal is approved, the PPP-managing focal unit shall summarize and announce approved project proposals on the portal of the Ministry of Industry and Trade and notify them to the Ministry of Industry and Trade for announcement on the national bidding network.
2. Details of an announced project must comply with Clause 2, Article 18 of Decree No. 15/2015/ND-CP.

Chapter III
FORMULATION, APPRAISING AND APPROVAL OF FEASIBILITY STUDY REPORTS

Article 14. Formulation of feasibility study reports
1. For a project proposed by the Ministry of Industry and Trade, based on the decision approving the project proposal, the project-proposing unit shall formulate a feasibility study report of the project or select a capable and experienced consulting organization to do so.
The procedures for selection of a contractor to provide consultancy on making a feasibility study report must comply with the bidding law.
2. For a project proposed by an investor, based on the decision approving the project proposal, the Ministry of Industry and Trade shall assign the investor to make a feasibility study report.
Contents of the agreement between the Ministry of Industry and Trade and the investor on making a feasibility study report must comply with Clause 3, Article 24 of Decree No. 15/2015/ND-CP.

Article 15. Contents of feasibility study reports
1. Principal contents of a feasibility study report must comply with Article 25 of Decree No. 15/2015/ND-CP.
2. Based on the objectives and nature of a project, involved parties may agree on other contents which are not contrary to the provisions of Decree No. 15/2015/ND-CP, this Circular and relevant regulations.

Article 16. Dossiers for appraisal of feasibility study reports
A dossier for appraisal of a feasibility study report shall be made in 2 sets, each comprising:
1. A written request for appraisal of the feasibility study report;
2. The feasibility study report;
3. A copy of the report on appraisal and approval of the project proposal;
4. A copy of the decision approving the project proposal;
5. Relevant documents and legal documents.

Article 17. Appraisal and approval of feasibility study reports for group-A or group-B projects
1. A feasibility study report-making unit shall submit a dossier for appraisal of the feasibility study report to the PPP-managing focal unit.
2. Within 5 working days after receiving the dossier, the PPP-managing focal unit shall check the dossier and request the feasibility study report-making unit to supplement the dossier if it is incomplete and invalid.
3. Within 3 working days after receiving a complete and valid dossier, the PPP-managing focal unit shall propose the Minister of Industry and Trade to decide to form an appraisal council.
4. Within 30 working days after being formed, the appraisal council shall appraise the feasibility study report, for group-A projects.
Within 20 working days after being formed, the appraisal council shall appraise the feasibility study report, for group-B projects.
For a project with a construction component, the standing body of the appraisal council shall seek opinions of the state management agencies on the basic design in accordance with the construction law.
5. Contents subject to appraisal must comply with Clause 3, Article 26 of Decree No. 15/2015/ND-CP.
6. Within 2 working days after the conclusion on appraisal of the feasibility study report is available, the standing body of the appraisal council shall submit the report to the Minister of Industry and Trade for approval.

Article 18. Modification of feasibility study reports
1. A feasibility study report shall be modified when any of the events specified in Clause 1, Article 28 of Decree No. 15/2015/ND-CP occurs.
2. The procedures for appraisal and approval of modified feasibility study reports must comply with Article 17 of this Circular.

Chapter IV
SELECTION OF INVESTORS

Article 19. Preparation, appraisal and approval of dossiers of invitation to prequalification and prequalification results  
1. The sector- or field-managing unit shall prepare dossiers of invitation to prequalification for selection of investors or select capable and experienced consulting organizations to do so in accordance with the bidding law.
2. Contents of a dossier of invitation to prequalification must comply with Clause 1, Article 17 of the Government’s Decree No. 30/2015/ND-CP of March 17, 2015, guiding the implementation of the Bidding Law regarding selection of investors (below referred to as Decree No. 30/2015/ND-CP).
3. Feasibility study report-appraising units shall appraise dossiers of invitation to prequalification under Point b, Clause 1, Article 82 of Decree No. 30/2015/ND-CP.
4. Feasibility study report-appraising units shall appraise prequalification results under Point b, Clause 3, Article 84 of Decree No. 30/2015/ND-CP.

Article 20. Formulation of plans on selection of investors
1. Feasibility study report-making units shall formulate or select capable and experienced consulting organizations to formulate plans on selection of investors, then submit them to the Minister of Industry and Trade for approval.
2. Dossiers to be submitted for approval
A dossier to be submitted for approval shall be made in 2 sets, each comprising:
a/ A document presenting the plan on investor selection, summarizing the implementation process. Contents of the plan on investor selection must comply with Article 23 of Decree No. 30/2015/ND-CP.
b/ Enclosed documents.

Article 21. Appraisal and approval of plans on investor selection
1. Feasibility study report-appraising units shall appraise plans on investor selection under Point a, Clause 1, Article 24 of Decree No. 30/2015/ND-CP.
2. Appraising units shall submit plans on investor selection to the Minister of Industry and Trade for approval under Point a, Clause 3, Article 84 of Decree No. 30/2015/ND-CP.

Article 22. Preparation, appraisal and approval of bidding dossiers and dossiers of requirements
1. Feasibility study report-making units shall prepare bidding dossiers and dossiers of requirements or select capable and experienced consulting organizations to do so.
2. Appraising units shall appraise bidding dossiers and dossiers of requirements, then submit them to the Minister of Industry and Trade for approval.
3. Approval of lists of investors meeting technical requirements  
a/ Appraising units shall appraise lists of investors meeting the requirements prescribed at Point b, Clause 3, Article 83 of Decree No. 30/2015/ND-CP;
b/ The Minister of Industry and Trade shall approve lists of investors meeting technical requirements under Point b, Clause 3, Article 84 of Decree No. 30/2015/ND-CP.

Article 23. Appraisal and approval of investor selection results
Appraising units shall appraise investor selection results under Point b, Clause 4, Article 84 of Decree No. 30/2015/ND-CP, and concurrently make appraisal reports under Point c, Clause 4, Article 83 of Decree No. 30/2015/ND-CP.

Chapter V
SIGNING OF INVESTMENT AGREEMENTS AND
PROJECT CONTRACTS


Article 24. Negotiation on contracts with selected investors
1. Based on investor selection results under Article 23 of this Circular, sector- or field-managing units shall assume the prime responsibility for, and coordinate with the PPP-managing focal unit and related units, in negotiating and finalizing project contracts with selected investors.
2. Contents of contract negotiation and finalization must comply with Clause 2, Article 43 of Decree No. 30/2015/ND-CP.

Article 25. Contents of contracts    
Principal contents of a project contract must comply with Article 32 of Decree No. 15/2015/ND-CP.
Depending on particular characteristics of each project, involved parties may agree on other contents which are not contrary to the provisions of Decree No. 15/2015/ND-CP, this Circular and other relevant documents.
Documents enclosed with a project contract include annexes, documents and papers certifying or detailing certain contract contents as integral parts of the contract.

Article 26. Signing of investment agreements
After the negotiation on project contract contents is concluded, the sector- or field-managing unit in charge of negotiation shall make a report on negotiation results enclosed with the draft investment agreement. Investment agreement contents shall be made under Clause 2, Article 30 of Decree No. 15/2015, and submitted to the Minister of Industry and Trade for decision on signing of the investment agreement. The Ministry of Industry and Trade shall organize the signing of the investment agreement with the investor.

Article 27. Signing of contracts
The signing of contracts for group-B and group-C projects shall be carried out under authorization by the Minister of Industry and Trade.

Chapter VI
SUPERVISION OF PROJECT IMPLEMENTATION

Article 28. Supervision of performance of project contracts
1. For group-B and group-C projects, the Minister of Industry and Trade shall authorize the Ministry’s attached units to supervise the performance of project contracts. In case of necessity, authorized units may hire capable consulting units to assist them in supervising the performance of project contracts. Expenses for hiring consultants shall be agreed upon in project contracts.
2. For group-A projects, the Ministry of Industry and Trade may authorize its attached units to supervise the performance of project contracts or hire consultants to do so when necessary. Expenses for hiring consultants shall be agreed upon in project contracts.

Article 29. Supervision of quality of works
1. The supervision of quality of works of PPP investment projects must comply with Clause 1, Article 48 of Decree No. 15/2015/ND-CP and relevant legal documents.
2. The PPP-managing focal unit shall propose annual work quality supervision plans and the composition of quality supervision teams to the Minister of Industry and Trade for approval.
3. When having any doubt about work quality or at the request of a state agency, the Ministry of Industry and Trade may authorize the PPP-managing focal unit to organize the quality inspection of parts, items or the whole of construction works.  

Chapter VII
REPORTING REGIME

Article 30. Reporting by investors
1. Investors that implement PPP projects shall make regular and irregular reports as prescribed by law and under Clauses 2 and 3 of this Article.
2. Regular reports
a/ Investors and project enterprises shall make and send biannual reports before July 10 and annual reports before February 10 every year to the PPP-managing focal unit and sector- or field-managing units;
b/ Investors that implement PPP projects shall make and send to the Ministry of Industry and Trade reports on supervision and evaluation of investment projects in accordance with the law on investment supervision and evaluation;
c/ Reports must clearly state the progress of works by the reporting time (disbursement of capital, construction of items, etc.); existing and newly arising problems and proposed solutions; tentative implementation plan.
3. Irregular reports
a/ Upon the occurrence of such force majeure events as natural disaster and fire, investors shall promptly report them to the Ministry of Industry and Trade and competent state management agencies;
b/ Investors shall report and provide documents or explain matters related to their operation at the request of competent state management agencies.

Article 31. Reporting by sector- or field-managing units and public non-business units
Sector- or field-managing units shall send to the PPP-managing focal unit biannual reports before July 10 and annual reports before February 10 every year on the implementation and investment capital figures of projects of which they act as direct investors.

Chapter IX
IMPLEMENTATION PROVISIONS

Article 32. Organization of implementation 
1. The Planning Department shall act as the PPP-managing focal unit of the Ministry of Industry and Trade, and monitor, urge and inspect the implementation of this Circular.
2. Heads of agencies and units shall organize the implementation of this Circular and propose PPP project types suitable to their operations.

Article 33. Effect
1. This Circular takes effect on December 15, 2015.
2. Any problems arising in the course of implementation should be reported by organizations and individuals involved in activities related to investment in PPP projects to the Ministry of Industry and Trade (the Planning Department) for timely guidance.-

For the Minister of Industry and Trade
Deputy Minister
CAO QUOC HUNG
 

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