The Circular guiding some contents of investment projects according to the public-private partnership method, the type of business contract - highway management

On 31/12/2023, the Ministry of Transport issued Circular No. 55/2023/TT-BGTVT on guiding some contents of investment projects according to the public-private partnership method, the type of business contract - highway management.

Accordingly, this Circular guides a number of contents of investment projects in the form of public-private partnership (hereinafter referred to as PPP), the type of business contract - highway management (hereinafter referred to as expressway O&M project) nationwide, including: Some contents in the pre-feasibility study report, feasibility study report; methods and standards for evaluating bids; project contract template. This Circular applies to organizations and individuals participating in or related to the activities of preparing pre-feasibility study reports, feasibility study reports, selecting investors and signing expressway O&M project throughout the country.

- Regarding the evaluation of bids for expressway O&M project, comply with the following regulations:

+ Bids evaluation method: comply with the regulations on bids evaluation method in Section 3, Chapter III of the Law on Investment in the form of public-private partnerships (PPP Law), Chapter IV of Decree No. 35 /2021/ND-CP, Circular No. 09/2021/TT-BKHDT dated November 16, 2021 of the Minister of Planning and Investment guiding the selection of investors to implement investment projects according to the public-private partnership method and investment projects using land;

+ The criteria for bids evaluation: comply with the provisions in Appendix I, Appendix II and Appendix III issued with this Circular.

+ Evaluation standards must be disclosed in the bidding documents. During the evaluation process, bids must comply with the evaluation standards stated in the bidding documents.

- Regarding the principle of applying the expressway O&M contract form: Expressway O&M contract signed between the contracting agency and the investor and project enterprise shall follow the form of the expressway O&M contract specified in Appendix IV issued with this Circular. During the process of negotiating and finalizing the contract, the parties may propose amendments and supplements to the contract content to ensure that the basic content of the bid is not changed as prescribed in Clause 3, Article 64 of the Decree No. 35/2021/ND-CP and not contrary to the provisions of the bidding documents, the law on investment in the public-private partnership method and the provisions of relevant laws.

- Expressway O&M contract

+ O&M project enterprises must take measures to ensure project contract performance as prescribed in Article 48 of the PPP Law.

+ Expressway O&M contract includes: the written agreement of the parties on the contract, general conditions of the contract, specific conditions of the contract and contract appendix (if any).

+ Investors and project enterprises are responsible for managing, operating, exploiting and maintaining expressway infrastructure assets according to legal regulations and signed contracts. The funding for management, operation, exploitation and maintenance is guaranteed by the investor and project enterprise, unless otherwise prescribed by law.

* Regarding the value and deadline for payment to the state budget

- The value paid to the state budget in the project contract is based on the decision to approve the investor selection results.

- The time limit for payment of the value paid to the state budget is prescribed as follows:

+ In case the value paid to the state budget is less than 1,000 billion: investors and project enterprises pay a maximum of 02 times; In which the first payment is at least 50% of the value paid to the state budget within 01 month from the effective date of the contract, the second payment is the entire remaining value paid to the state budget within 03 months from the effective date of the contract;

+ In case the value paid to the state budget is over 1,000 billion: investors and project enterprises pay a maximum of 03 times; In which the first payment is at least 40% of the value paid to the state budget within 02 months from the effective date of the contract, the second payment is at least 30% of the value paid to the state budget within 04 months from the effective date of the contract, the third payment is the entire remaining value paid to the state budget within 12 months from the effective date of the contract;

+ The project contract specifies the progress and value of payment to the state budget.

- Investors and project enterprises must disburse equity capital with a minimum value of 15% of the total project investment in the first payment. Disbursement of equity capital in subsequent times (if any) will be carried out according to the project contract.

- Handling of late payment of state budget remittances: The project contract specifically stipulates the handling plan in case the investor or project enterprise is late in paying the state budget remittance value, including fines for late payment and other measures as prescribed by law. The fine for late payment is implemented as follows: the late payment fee is 0.03%/day calculated on the late payment amount; the time for calculating late payment interest is calculated continuously from the day following the day the late payment interest arises to the day immediately preceding the date the amount is paid into the state budget.

- The investor or project enterprise is considered to have seriously violated the performance of obligations specified in the contract according to the provisions of Point d, Clause 2, Article 52 of the PPP Law in case of failure to fully pay the entire payment value into State budget within 03 months from the effective date of the contract in case the value paid to the state budget is less than 1,000 billion; within 12 months from the effective date of the contract in case the value paid to the state budget is over 1,000 billion.

In addition, the Circular also specifies a number of contents in the pre-feasibility study report and project feasibility study report.

The Circular takes effect from March 1, 2024.