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Page 2 of 2
CHAPTER III
METHODS OF IMPLEMENTATION OF
BOT, BTO AND BT PROJECTS
Article 12
1. Based on the planning and orientation of social and economic
development in each period, the Ministry of Planning and Investment shall be
responsible for co-coordinating with ministries, sectors and people/s
committees of provinces and cities under central authority to submit to the
Prime Minister for approval the list of investment projects on the basis of
BOT, BTO, and BT contracts.
2. The Prime Minister may approve BOT, BTO, and BT contracts not included
in the published list after consulting relevant ministries, sectors and
people/s committees of provinces and cities under central authority where
those project are proposed to be implemented
3. Investment projects on the basis of a BOT,BTO, or BT contract which are
submitted to the Prime Minister as stipulated in clauses 1 and 2 of this
article shall specify the necessity, location, designed capacity, size of
proposed invested capital, and recommendations on the authorized State bodies
and methods of selection of foreign investor(s) to enter into a BOT, BTO or
BT contract.
Article 13
1. Based on the approved list of BOT, BTO, or BT projects and methods of
selection of foreign investor(s) to enter into a BOT, BTO or BT contract, the
authorized State body shall direct the preparation of a pre-feasibility study
which shall be used as a basis for preparation of files for selection of
foreign investors. The authorized State body shall consider and approve the
pre-feasibility study.
The costs of preparation of the pre-feasibility study shall be covered by
the approved budget of the authorized State body as stipulated. If the
project is implemented, the costs of preparation of the pre-feasibility study
shall be charged to the invested capital of the project and the BOT
enterprise shall be responsible for refunding same to the State Budget.
2. Foreign investors shall prepare and submit pre-feasibility studies of
the BOT, BTO, or BT projects referred to in clause 2 of article 12 to the
authorized State body for consideration and approval. Where a pre-feasibility
study is adopted by the authorized State body, foreign investor(s) shall be
permitted to prepare and submit an application file for an investment
license.
Article 14
1. Procedures and methods of selection of foreign investor(s) to enter
into BOT, BTO or BT contracts shall be carried out in accordance with the
laws of Vietnam in relation to tendering.
2. The results of the selection of foreign investor(s) to enter into a BOT,
BTO, or BT contract must be approved by the Prime Minister of the Government.
Article 15
1. Upon approval of the results of the selection of foreign investor(s) to
enter into a BOT, BTO, or BT contract by the Prime Minister, the selected
foreign investor(s) shall prepare a feasibility study which shall be
submitted to the authorized State body.
2. The authorized State body shall co-ordinate with relevant ministries,
sectors and people/s committees of provinces and cities under central
authority in the consideration and approval of feasibility studies. In the
case where there is any difference in opinions or issue beyond its authority,
the authorized State body shall report to the Prime Minister of the
Government for decision.
Article 16
1. The authorized State body shall be responsible for negotiating and
entering into a BOT, BTO or BT contract with the selected foreign investor(s).
With respect to important projects decided by the Government, the authorised
State body shall be responsible for submitting principles serving as the
basis for negotiating and entering into a BOT, BTO, or BT contract to the
Government for approval.
2. A draft BOT, BTO, or BT contract, after being negotiated, agreed and
initialed by parties, together with other documents relating to the
application for an investment license shall be submitted to the Ministry of
Planning and Investment for evaluation and submission to the Prime Minister
for consideration and decision. A BOT, BTO, or BT contract shall only be
officially signed upon the approval of the Prime Minister
Article 17
1. An application file for an investment license shall comprise:
- Application for investment;
- Initialed BOT, BTO, or BT contract;
- Joint venture contract (in the case where the BOT enterprise is a joint
venture enterprise);
- Charter of the BOT enterprise;
- Initialed contract or heads of agreement on purchase of materials or
sale of products (if any);
- Documents evidencing the legal status and financial standing of
investors.
2. In addition to the above with respect to BT projects, documents
regarding other projects as required by applicable regulations shall also be
submitted
3. A BOT, BTO, or BT contract and contracts for purchase of materials or
sale of product (if any) shall be sent to the Ministry of Planning and
Investment after being officially signed.
Article 18
1. The Ministry of Planning and Investment shall issue an investment
license to a BOT, BTO, or BT project within a period of fifteen(15) days from
the date on which the Prime Minister approves the BOT, BTO, or BT project
2. The investment license shall contain the following main issues:
Main terms and conditions of the contract.
Amount of invested capital, objectives and duration of operation of the
project;
Requirements of design technical conditions and conditions for normal
operation of the project upon being transferred to the State of Vietnam;
- Financial and tax obligation;
- Right to the use land and support facilities;
- Conditions regarding environmental protection;
- Principles for determining and adjusting prices and other charges;
- Provisions on the conversion of Vietnam currency into foreign
currencies;
- Importation or exportation of equipment, machinery and goods;
- Rights and conditions for operating the projects with respect to BOT,
BTO projects, for operating other projects;
- Main principles for assets upon transfer;
Undertaking of the Government and relevant State bodies;
Article 19
1. BOT enterprises shall prepare and submit a technical design to the State
body.
The authorized State body shall be responsible for coordinating with the
Ministry of Construction and relevant ministries, sector and people?s
committees of provinces and cities under central authority to carry out
evaluation of technical design of projects prior to implementation.
Upon approval of the technical design of project, the BOT enterprise shall
be permitted to commence construction of the project.
2. Investor(s) and BOT enterprise shall BOT enterprise shall entitled to
select sub-contractors or open a tender in order to implement BOT, BTO and BT
project and shall BOT enterprise shall responsible for submitting a report on
the selection of tendered or the tendering results to authorized State body.
3. After signing subcontracts with BOT enterprise, sub-contractors must
register their operations with the State body.
Article 20
1. The principles for determining prices, rates, fees and other charges of
BOT, BTO projects must BOT enterprise shall provided for in BOT and BTO
contracts.
2. Increases in prices, fees and other charges must BOT enterprise shall
agreed and provided for in BOT or BTO contracts. Any changes in prices or
fees or other charges shall BOT enterprise shall subject to a 30 day notice
to other authorized State body prior to implementation.
Article 21
1. The duration of a BOT, BTO or BT contracts, the time limit for transfer
of a BOT, BTO and BT project, and the duration of operation of a BTO project
shall BOT enterprise shall agreed upon by the parties and specified in the
investment License in Vietnamese,
2. upon the expiry of the operation of a BOT project, the foreign
investor(s) shall transfer the project to the State of Vietnam without
compensation. With respect to a BTO or BT project, the foreign investor(s)
shall transfers the project to the State of Vietnam in the BOT or BT contract
upon completion of construction.
3. The competent State body shall take over BOT, BTO, or BT projects
transferred in accordance with articles 22 nd 23 of these Regulations.
Article 22
Upon transfer of a project tj State of Vietnam, the authorized State body
and BOT enterprise must check against the terms and conditions stipulated in
stipulated in the investment license and the BOT, BTO or BT contract. The
file for hand over of the project shall contain the following main issues:
1. The condition of the project upon transfer,
2. The list of assets transferred, including documents relating to
surveys, designs, construction, installation, operation, maintenance and
management of the project.
3. The written report on evaluation of the value anf quality of the
project transferred;
4. The responsibilities of the parties for the continued operation of the
project transferred;
5. The duration, conditions for maintenance and guarantee of the project
after being transferred.
Other necessary contracts and conditions for the maintenance ad operation
of the project after being transferred.
Article 23
Before a BOT, BTO or BT project is transferred, the BOT enterprise must
carry out any maintenance, repair and necessary technical activities to
transfer the project as agreed in BOT, BTO or BT contract.
The authorized State body shall only take over the project in accordance
with the terms and conditions stipulated in BOT, BTO or BT contract and
investment license.
CHAPTER V
RIGHTS AND OBLIGATIONS OF THE AUTHORIZED STATE BODY
Article 26
The authorized State body shall have the following powers:
- To determine economic and technical targets of projects and organize the
consideration and approval of reversibility studies and feasibility studies;
- To negotiate, agree and decide the contents of BOT, BTO or BT contracts.
- To co-ordinate with the Ministry of Construction, other ministries,
sectors and people?s committees of provinces and cities under central
authority in the consideration and evaluation of technical designs of
projects;
- To organize the supervision of construction and participate in the
acceptance of quality of construction works during the course of
construction;
- To approve contracts for purchase of material and sale of main products
and services signed by BOT enterprise and Vietnamese specialized economic
organization in case where these contracts require a guarantee as referred to
in clause 2 of article 10 of these Regulations;
- To supervise the parties in the performance of their obligations
undertaken in BOT, BTO or BT contract and sub-contractors;
- To take over the project transferred as stipulated.
Article 27
The authorized State body shall have the following responsibilities.
- To provide support to foreign investors in the preparation and
implementation of BOT, BTO, and BT projects;
- To provide support to BOT enterprises in the completion of procedures
for preparation for investment, construction and operation (if any) in
accordance with BOT, BTO and BT contracts and sub-contracts.
- To assume the responsibility for or to co-ordinate with other State
bodies in the consideration and resolution of legitimate requirements of BOT
enterprises during the implementation of BOT, BTO and BT projects.
- To perform the obligations undertaken in BOT, BTO and BT contracts.
- To perform other duties related to the management and administration of
activities under BOT, BTO and BT projects in accordance with law.
Article 28
All costs relating to the exercise of powers and performance of
responsibilities of the authorized State body referred to in articles 26 and
27 of these Regulations shall BOT enterprise shall charged to the State
budget on the basis of proposals of the authorized State Body and the
Ministry of Finance.
CHAPTER VI
IMPLEMENTING PROVISIONS
Article 29
Ministers, head of ministerial equivalent bodies, heads of governmental
bodies and chairmen of people/ s committees of provinces and cities under
central authority shall BOT enterprise shall responsible for the
implementation of these Regulations.
Source: Department of Ministry of Investment and Planning, HCM city,
Vietnam
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