CIRCULAR

PRESCRIBING MANAGEMENT AND USE OF REVENUES AND EXPENDITURES ASSOCIATED WITH SELECTION OF INVESTORS EXECUTING INVESTMENT PROJECTS IN PUBLIC – PRIVATE PARTNERSHIP INVESTMENT FORM

Pursuant to the Government’s Decree No. 163/2016/ND-CP dated December 21, 2016 elaborating the implementation of the Law on State Budget;

Pursuant to the Government’s Decree No. 10/2021/ND-CP dated February 09, 2021 on management of construction investment costs;

Pursuant to the Government’s Decree No. 15/2021/ND-CP dated March 03, 2021 on elaboration of regulations on management of construction projects;

Pursuant to the Government’s Decree No. 28/2021/ND-CP dated March 26, 2021 prescribing financial management mechanism applicable to public-private partnership projects;

Pursuant to the Government’s Decree No. 35/2021/ND-CP dated March 29, 2021 elaborating and providing guidelines for implementation of the Law on public-private partnership investment;

Pursuant to the Government’s Decree No. 60/2021/ND-CP dated June 21, 2021 prescribing mechanism for exercising autonomy of public service units;

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Pursuant to the Government’s Decree No. 35/2023/ND-CP dated June 20, 2023 providing amendments to Decrees in the fields falling under state management of the Ministry of Construction of Vietnam;

Pursuant to the Government’s Decree No. 14/2023/ND-CP dated April 20, 2023 defining functions, tasks, powers and organizational structure of the Ministry of Finance of Vietnam;

At the request of the Director of the Investment Department;

The Minister of Finance of Vietnam promulgates a Circular prescribing management and use of revenues and expenditures associated with selection of investors executing investment projects in public – private partnership investment form.

Chapter I

GENERAL PROVISIONS

Article 1. Scope

This Circular provides regulations on management and use of revenues and expenditures associated with selection of investors executing investment projects in public – private partnership investment form (hereinafter referred to as “PPP project”).

Article 2. Regulated entities

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Chapter II

MANAGEMENT OF REVENUES AND EXPENDITURES ASSOCIATED WITH SELECTION OF INVESTORS EXECUTING PPP PROJECTS

Article 3. Rules for management of revenues and expenditures associated with selection of investors executing PPP projects

1. Revenues and expenditures associated with selection of investors executing PPP projects must stay true to their purposes and comply with policies of the State and regulations of the law.

2. Cost estimation, payment, and final settlement of revenues and expenditures during the selection of investors executing PPP projects shall comply with regulations of the law on management, use, payment, and final settlement of the public investment capital and recurrent expenditures covered with funding derived from the state budget.

Article 4. Expenditures associated with selection of investors executing PPP projects

Expenditure items in selection of investors and norms thereof shall comply with the provisions of Article 32 and point e clause 2 Article 73 of the Government’s Decree No. 35/2021/ND-CP dated March 29, 2021 elaborating and providing guidelines for implementation of the Law on public-private partnership investment (hereinafter referred to as “Decree No. 35/2021/ND-CP”).

Article 5. Revenues earned from investor selection

1. Procuring entities shall transfer the amounts of proceeds from sale of bidding documents and other revenues (if any) that remain after having fulfilled all tax obligations to state budget in accordance with regulations of law on state budget.

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Article 6. Funding for selection of investors executing PPP projects

1. Funding for covering the expenditures incurred from investor selection as prescribed in clauses 2 and 3 Article 32 of the Decree No. 35/2021/ND-CP shall be included in competent authorities’ plans for funding for preparation of PPP projects derived from public investment capital and state budget’s funding for recurrent expenditures, and aggregated in total investment of the PPP project.

2. Costs of handling of an investor’s petition shall be covered by the investor that submits such a petition in accordance with point e clause 2 Article 73 of the Decree No. 35/2021/ND-CP.

Article 7. Management and use of funding for bidding for selection of investors executing PPP projects

1. In case procuring entities are project management boards, management, use, and final settlement of funding for bidding for selection of investors executing PPP projects shall comply with provisions of the Circular No. 70/2024/TT-BTC dated October 01, 2024 of the Ministry of Finance of Vietnam prescribing management and use of revenues from project advisory and management activities of project owners and project management boards of state budget-funded projects.

2. In case professional units or affiliated units of competent authorities hire consultants on investor selection for performing a part or all of the tasks prescribed in Clauses 2, 3, 4 Article 32 of Decree No. 35/2021/ND-CP, consulting service costs shall be subject to the following provisions:

a) Total expenditures on selection of investors, inclusive of tax (including such expenditures self-covered by the procuring entity) shall not exceed the approved estimated funding for consulting service costs.

b) The consultant shall be paid under terms and conditions of the contract signed by and between the procuring entity and the consultant.

c) Management, use, payment, and final settlement of the funding prescribed in Point b of this Clause shall comply with current regulations on management, payment, and final settlement of public investment capital.

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Article 8. Costs of settlement of investors' petitions against results of selection of investors executing PPP projects

1. In case an investor’s petition against the investor selection result is considered by a competent person, the investor filing the petition shall pay the required petition settlement fee to the standing assistance section of the Advisory Board as prescribed in point e clause 2 Article 73 of the Decree No. 35/2021/ND-CP. If a petition which is pending adjudication is withdrawn, the petition settlement fee paid by the investor shall be treated as follows:

a) 50% of the fee paid shall be refunded to the investor if the Advisory Board has yet to be established or has been established but has not yet convened its meeting;

b) The fee paid shall not be refunded to the investor if the Advisory Board has convened its meeting. The standing assistance section of the Advisory Board shall pay the remaining amount of the fee paid by the investor to state budget within 07 working days from the day on which the petition is withdrawn.

2. The standing assistance section of the Advisory Board shall prepare the detailed estimate of costs of settlement of each petition and submit it to the Advisory Board’s Chairperson for approval.

3. Total estimated costs approved by the Advisory Board’s Chairperson as prescribed in clause 2 of this Article shall not exceed the fee paid by the investor as prescribed in clause 1 of this Article.

4. The Advisory Board’s Chairperson shall decide the predetermined costs, under the approved cost estimate, of tasks performed by members of the Advisory Board, the standing assistance section of the Advisory Board and other costs associated with the petition settlement. Remunerations of the Advisory Board’s members who are officials or public employees shall be paid in accordance with regulations of law.

5. The standing assistance section of the Advisory Board shall provide funding for covering costs incurred during the petition settlement according to the cost estimate approved by the Advisory Board’s Chairperson.

6. Upon completion of the petition settlement, the Advisory Board’s Chairperson shall consider confirming the total amount of costs actually incurred. The standing assistance section of the Advisory Board shall return any positive difference between total amount of costs actually incurred and the fee paid by the investor filing the petition to the investor within 07 days from the day on which the Advisory Board’s Chairperson gives confirmation of total amount of costs actually incurred.

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8. In case a competent authority has concluded that the contents of the investor’s petition are true, funding for making return to the investor under the petition settlement decision shall be subject to the following provisions:

a) If the procuring entity is an administrative unit or public service unit, funding for making return to the investor is derived from its estimated funding for recurrent expenditures.

b) If the procuring entity is not an administrative unit or public service unit, funding for making return to the investor is derived from its funding for covering business expenses.

9. The entity(ies) at fault as defined in the petition settlement decision issued by the competent authority shall pay compensation to the procuring entity in accordance with regulations of law.

Chapter III

IMPLEMENTATION ORGANIZATION

Article 9. Responsibilities of relevant authorities

1. Competent authorities, agencies or units that are assigned to act as procuring entities shall:

a) Assume responsibility for management and use of revenues and expenditures associated with selection of investors as prescribed by law;

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c) Make return of the fees which are paid by investors when filing their petitions and used for covering costs of performing tasks by Advisory Boards to investors in case their petitions are found true.

2. Agencies in charge of payment tasks shall:

Assume responsibility to control and make payment of costs incurred from investor selection in accordance with regulations of law on making of payments using state budget, law on public investment, the State’s financial management policies in force, and specific provisions herein.

3. Responsibilities of Chairpersons of Advisory Boards, standing assistance units of Advisory Boards:

a) Chairperson of an Advisory Board shall manage and use the fees paid by investors as prescribed in clause 1 Article 8 hereof in an efficient and thrift manner, and in conformity with regulations of law;

b) The standing assistance unit of an Advisory Board shall receive the fee paid by the investor filing petition, make an estimate of costs of tasks performed by the Advisory Board and submit it to the Advisory Board’s Chairperson for approval, provide funding for covering costs of tasks performed by the Advisory Board under the approved cost estimate, and make return of any positive difference between the received fee and the actually incurred costs to the investor filing petition according to provisions of Article 8 of this Circular.

4. Ministries, central-government authorities, other authorities and local-government authorities shall:

Inspect management and use of revenues and expenditures associated with selection of investors executing PPP projects, and take appropriate actions as prescribed by law against any individuals or units that commit violations against regulations on management and use of revenues and expenditures.

Article 10. Responsibilities of investors

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Article 11. Implementation

1. This Circular comes into force from February 15, 2025.

2. The Circular No. 08/2022/TT-BTC dated February 09, 2022 of the Minister of Finance of Vietnam prescribing management and use of revenues and expenditures associated with investor selection is abrogated.

Management and use of revenues and expenditures associated with selection of investors executing projects which require bidding as prescribed in specialized industry or field laws, and selection of investors executing projects involving land use shall comply with provisions of the Government’s Decree No. 23/2024/ND-CP dated February 27, 2024 elaborating and providing guidelines for implementation of Law on Bidding regarding selection of investors for projects requiring bidding as prescribed by specialized sector or industry laws, and the Government’s Decree No. 115/2024/ND-CP dated September 16, 2024 elaborating and providing guidelines for implementation of the Law on Bidding regarding selection of investors executing investment projects involving land use.

3. If estimates of costs of selection of investors executing PPP projects have been approved by competent authorities before the effective date of this Circular, payment and final settlement of investor selection costs shall comply with provisions of this Circular without following procedures for re-approval of cost estimates.

4. If any legislative documents referred to in this Circular are amended or superseded, the new ones shall apply.

5. Ministries, ministerial agencies, other authorities, People’s Committees at all levels, and relevant organizations and individuals are responsible for the implementation of this Circular./.

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Thông tư 95/2024/TT-BTC quy định về quản lý, sử dụng các khoản thu, chi liên quan trong quá trình lựa chọn nhà đầu tư thực hiện dự án đầu tư theo phương thức đối tác công tư do Bộ trưởng Bộ Tài chính ban hành