Issue 010122 – Circular No. 09/2021/TT-BKHDT on guidelines for selection of investors implementing public–private partnership projects and projects using lands

Dear Valued Clients,

On November 16, 2021, the Ministry of Planning and Investment have just adopted the Circular No. 09/2021/TT-BKHDT (“Circular 09”) guiding the selection of investor to implement public-private partnership (“PPP”) projects and projects using land, clarifying and instructing the Decrees 35/2021/NĐ-CP and 25/2020/NĐ-CP as well as replace the Circular 06/2020/TT-BKHĐT. The Circular 09 shall become effective from January 01, 2022. The significant updates of such Circular shall be specify in this article hereto.

Regulations on the invitation for prequalification, the invitation for negotiation, and the invitation for bidding of PPP projects[1]

The Circular 09 specify regulations on the invitation for prequalification, the invitation for negotiation, and the invitation for bidding PPP projects, including: (1) The invitation for prequalification, (2) the invitation for negotiation, (3) the invitation for bidding for projects applying pre-qualification; (4) the invitation for bidding for projects not applying pre-qualification and projects applying competitive negotiation as prescribed in Article 38.1 of the PPP Law; and (5) the invitation for bidding for projects applying competitive negotiation as prescribed in Articles 38.2 and 38.3 of the PPP Law. The above dossier forms are specified in Appendices I, II and III attached to the Circular 09.

In which, for projects applying the form of investor appointment due to the need for ensuring requirements on national defense and security, and protection of state secrets[2], the invitation for bidding shall be drafted pursuant to the form provided in Appendix IV attached to the Circular, but must be consistent with a number of specific regulations[3] and must not contain any content comparing and ranking investors.

Regulations related to the formulation of preliminary requirements on qualifications and experiences, invitation for bidding, and the request for proposal for projects using land[4]

Circular 09 provides dossier forms for: (1) Notice of invitation, preliminary requirements on qualifications and experiences; (2) Invitation for bidding; and (3) Request for proposal for projects applying the form of contractor appointment. These dossier forms are specified in Appendices VI and VII attached to the Circular 09. In which:

Regarding the notice of invitation, preliminary requirements on qualifications and experiences: Requirements on qualifications and experiences must only state the contents for the sole purpose of selecting investors who preliminarily satisfy requirements of qualifications and experiences; and must not include any conditions to limit the participation of investors or create any advantages for one or several investors, leading to unfair competition.

Regarding the invitation for bidding: The Circular 09 specifies the manner to determine the floor price to be paid to the state budget (m₃).

Regarding the d request for proposal for projects applying the form of contractor appointment: The dossier is made according to Appendix VII of the Circular 09, but must be consistent with a number of specific regulations[5] and must not contain any content comparing and ranking investors.

Regulations on other contents related to the implementation of projects using land

Article 6 of the Circular 09 stipulates contents related to the implementation of investment projects using land, including:

1. The bases for determining projects using land specified in Article 11.1 of Decree 25/2020/ND-CP[6] for the following projects:

• • Urban area.
  • Commercial housing.
  • Headquarters and offices, including buildings used as offices in combination with accommodation.
  • Commercial works, including shopping malls, supermarkets, shops; restaurants, food and beverage shops.
  • Service works include hotels, guest houses, motels; resorts; villas, apartments and other service accommodations.

2. In this account, the remarkable point of Circular 09 is the addition of urban areas, headquarters and offices in the regulations guiding the determination of projects using land.

3. The manner to determine and implement preliminary requirements on the investor’s qualifications and experiences; and announce the list of projects using land for projects subject to approval of investment policies according to the Investment Law, the Approval of the Investment Policy, which is concurrently the Approval of the list of projects using land[7].

4. Procedure for preliminary assessment of the investor’s qualifications and experiences[8]. In which, in case there is only one investor satisfying the preliminary requirements on qualifications and experiences, that investor shall submit an application for investor approval as per the laws[9] without having to determine the floor price to be paid to the state as prescribed in Article 4.2 of the Circular 09.

In case the project business inherits the rights and obligations to perform the project that the successful bidder has committed in the bid dossier and must satisfy the conditions prescribed by the law on enterprises, investment, construction, land, housing, real estate business and relevant laws (if any).

In addition, Circular 09 also provides the principles of applying and modifying dossier forms; transitional regulations; and performance terms.

As usual, we hope you find this Legal Update helpful and look forward to working with you in the upcoming time.

Kind regards,

ENT Law LLC

The full version of this Legal Article can be found here.

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[1] Under Article 3 of the Circular 09.

[2] Under Article 39.1(a) of the PPP Law.

[3] Adhere to the PPP Law, the Decree 35/2021/ND-CP and other relevant regulations.

[4] Under Article 4 of the Circular 09.

[5] Adhere to the Law on Bidding, the Decree 25/2020/ND-CP, Article 108 of the Decree 31/2021/ND-CP, Article 89 of the Decree 35/2021/ND-CP and other relevant regulations.

[6] The project on the list of projects requiring land expropriation as prescribed by land laws or located in a land area under management and use of the State; belongs to an urban development program (if any) as prescribed by urban development laws.

[7] Under Article 12.1(a) of the Decree 25/2020/ND-CP.

[8] Under Article 13 of the Decree 25/2020/ND-CP.

[9] Under Article 29.3 of the Law on Investment and Article 30.2(a) of the Decree 31/2021/ND-CP.