The Ministry of Planning and Investment of Vietnam has promulgated Circular 09/2021/TT-BKHĐT 2021 guidelines for investor selection investment projects under the mode of public-private partnership and investment projects using land. Accordingly, investors in projects using land must meet the following preliminary requirements on capacity and experience:
Article table of contents
What are the requirements that investors of projects using land must meet? (Illustration)
*For projects falling under the Prime Minister's authority to approve investment policies:
Provincial People's Committee is the agency that organizes the bidding according to the provisions of Clause 8, Article 32 of Decree 31/2021/ND-CP of Vietnam.
Based on the decision approving the investment policy of the project, the provincial People's Committee assigns the Department of Planning and Investment to assume the prime responsibility for, and coordinate with relevant agencies in, determining preliminary requirements on the investor's capacity and experience, and report to the Provincial People's Committee for approval before announcing the project list.
For projects implemented in economic zones, the provincial People's Committees shall assign the economic zone management boards to organize the identification and approval of preliminary requirements on the investor's capacity and experience before announcing the project list.
*For projects under the authority to approve investment policies of the People's Committee of the province of Vietnam:
The Department of Planning and Investment or the Management Board of the economic zone (for projects implemented in the economic zone) of Vietnam is the agency that organizes the bidding according to the provisions of Clause 6, Article 33 of Decree 31/2021/ND-CP.
Based on the decision approving the investment policy of the project, the Department of Planning and Investment shall assume the prime responsibility for, and coordinate with relevant agencies in, determining the preliminary requirements on the investor's capacity and experience, and report to the Provincial People's Committee for approval before announcing the project list.
For projects implemented in economic zones, the economic zone management board shall determine and approve preliminary requirements on the investor's capacity and experience before announcing the project list.
The preliminary assessment of the investor's capacity and experience is carried out as follows:
- The investor is responsible for preparing and submitting the application for registration of project implementation to the Department of Planning and Investment and on the national bidding network system based on the content of information disclosed as prescribed at Point b, Clause 4, Article 12, Decree 25/2020/ND-CP of Vietnam
An investor's application for project implementation registration includes:
+ Written registration for project implementation;
+ Profile of the investor's legal status, capacity, and experience;
+ Other relevant documents (if any).
- At the end of the project implementation registration deadline, the Department of Planning and Investment of Vietnam shall coordinate with relevant agencies in the preliminary assessment of the capacity and experience of investors who have submitted project implementation registration documents.
- Based on the assessment results, the Department of Planning and Investment shall submit to the Chairman of the Provincial People's Committee for decision the organization of implementation in one of the following two cases:
+ In case there are two or more investors meeting the requirements, the chairperson of the provincial People's Committee shall issue a decision to apply the form of open bidding as prescribed in Clause 1 or Clause 2, Article 10 of Decree 25/2020 of Vietnam; assign the Department of Planning and Investment to publish the list of investors meeting the requirements; assign a specialized agency under the People's Committee of the province or the People's Committee of the district to be the bid solicitor;
+ In case there is only one investor who meets the preliminary requirements on capacity and experience, that investor shall submit an application for investor approval as prescribed in Clause 3, Article 29 of the Law on Investment and point a, Clause 2, Article 30 of Decree 31/2021/ND-CP without having to determine the floor price for payment to the state budget as prescribed in Clause 2, Article 4 of Circular 09/2021 of Vietnam.
Some note:
- Circular 09/2021/TT-BKHDT of Vietnam takes effect from January 1, 2022.
- Bidding documents, dossiers of requirements have been issued according to the provisions of Decree 30/2015/ND-CP and Circular 16/2016/TT-BKHDT of Vietnam but as of January 1, 2022, no selection results have been received. If investors are selected, they shall continue to evaluate bids and proposals based on the issued bidding documents and dossiers of requirements;
- New pre-qualification dossiers that have been released before April 20, 2020, continue to select investors according to the provisions of Clause 3, Article 90 of Decree 25/2020/ND-CP. Contents of the bidding documents and requests for proposals are developed according to the provisions of Decree 30/2015/ND-CP, Circular guiding Decree 30/2015/ND-CP, and regulations of the law on land, housing, real estate business, investment, construction in effect at the time of approval of the bidding documents and request for proposals;
- In case the list of projects has been published on the National Procurement Online System in compliance with the provisions of Decree 25/2020/ND-CP, Circular 06/2020/TT-BKHDT and has two or more investors If the bidding documents have not yet been issued to meet the preliminary requirements on capacity and experience, by January 1, 2022, the content of the bidding documents shall be developed according to the provisions of Decree 25/2020/ND-CP, Circular 06/2020/TT-BKHDT and the provisions of the law on land, housing and business real estate, investment, and construction business in effect at the time of approval of the bidding documents;
- Bidding documents, dossiers of requirements have been issued according to the provisions of Decree 25/2020/ND-CP, Circular 06/2020/TT-BKHDT but as of January 1, 2022, there is no selection result. If investors are selected, they shall continue to evaluate bids and proposals on the basis of the issued bidding documents and request for proposals;
- Project contracts that have been signed in compliance with the law before January 1, 2022 may continue to be performed in accordance with the provisions of the project contract.
If the project is approved for adjustment, the investment project shall be adjusted according to the provisions of the law on investment before amending and supplementing the project contract.
Bao Ngoc
