Prohibited acts related to PPP investment in Vietnam

Prohibited acts related to PPP investment in Vietnam (Internet image) 

Regarding this issue, LawNet would like to answer as follows:

1. What is PPP investment?

Public - private partnership investment (PPP investment) refers to a form of investment carried out by the fixed-term cooperation between the state and a private-sector investor through conclusion and execution of a PPP project agreement in order to call for private sector involvement in a PPP project.

(Clause 10, Article 3 of the Law on Public – Private Partnership Investment 2020)

2. Prohibited acts related to PPP investment in Vietnam

- Issuing investment policy decisions that are not conformable to public investment strategies, plans and programs; that fail to determine state-owned capital invested in those PPP projects that are subject to the requirement concerning use of state capital; that are made ultra vires or in breach of legally required processes and procedures prescribed in the Law on Public – Private Partnership Investment 2020.

- Approving PPP projects in the absence of investment policies; not conforming to investment policies; ultra vires or in breach of legally required processes and procedures prescribed in the Law on Public – Private Partnership Investment 2020.

- Competent authorities and contracting entities in collusion with consulting organizations and investors issue decisions on PPP investment policies and approval of PPP projects that result in any loss or waste of state capital, assets and national resources, and any harm or infringement on legitimate interests of citizens and the public. 

- Failing to ensure fairness and transparency during the process of investor selection, including the following acts:

+Tender as an investor for projects in which the investor is the bid solicitor, the competent authority, the contracting authority or the entity functioning as the bid solicitor, the competent authority or the contracting authority;

+ Get involved in creating and concurrently reviewing documentation for invitation for prequalification, invitation to bid, and assessing bidding documents as well as verifying results of selection of investors bidding for the same project;

+ A person put under the control of a bid solicitor, a competent authority or a contracting authority directly participates in the investor selection process, or joins a team of experts or a team of verification of investor selection results; or is the head of a competent authority, a contracting authority or a bid solicitor, with respect to a project for which his/her natural father, mother, father-in-law, mother-in-law, mother-in-law, spouse, blood or adopted child, daughter-in-law, son-in-law, younger or elder sibling signs the name of the bidder or acts as the legal representative for an investor to bid.

+ Bear the name of the bidder for a project for which a competent authority, a contracting authority or a bid solicitor is the entity or organization where he/she has worked for 12 months before leaving.

- Disclosing and receiving the following documents and information about the investor selection process:

+ Documents and information related to documentation for invitation for prequalification or invitation to bid before the time of issuance thereof as prescribed, except for cases where projects are subject to the requirement concerning market surveys and prior consultation with investors for preparation of such documentation;

+ Documents and information related to pre-qualification applications, bidding documents, reports of bid solicitors, reports of expert teams, assessment reports, reports of consulting contractors or reports of relevant professional bodies made in the investor selection process, prequalification results or investor selection results before they are disclosed according to regulations;

+ Other documents coming into existence during the investor selection process, if it is established that they contain state secrets prescribed by law.

- Performing bid rigging acts as follows:

+ Entering into an agreement on bid withdrawal or withdrawal of the bid application already submitted in order for one or more parties to such agreement to win the bid;

+ Make an agreement to one or more parties to prepare bid applications for the bidders so that one or some parties to such agreement win the bid.

- Transferring shares, contributed capital portions, rights and obligations in breach of the provisions of the Law on Public – Private Partnership Investment 2020 and PPP contracts.

- Ceasing the supply of public products and services other than those falling in the cases specified in PPP contracts.

- Offering, taking and brokering bribes to gain advantage in performing PPP investment activities.

- Abusing assigned titles and powers to appropriate, make personal gain from and commit acts of corruption while managing and using public investment capital invested in PPP projects; illegally interfering with the PPP project process.

- Performing PPP investment acts by fraud, including:

+ Counterfeiting and falsifying information, records and documents related to decisions on investment policies and decisions on approval of PPP investment projects, selecting investors and implementing PPP investment projects in order to obtain illegal gain or evade any obligation;

+ Deliberately providing untruthful or biased information that falsifies approved investment policies, PPP projects, investor selection results, review, inspection, supervision or audit results, results of settlement of public investment capital, discharge and termination of PPP contracts;

+ Deliberately providing untruthful and biased information that falsifies data and figures regarding PPP project’s revenues in order to gain illicit profits.

- Hindering detection and sanctioning of any violation against law on PPP investments.

(Article 10 of the Law on Public – Private Partnership Investment 2020)

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