On March 29th, 2021, the Government issued Decree no. 35/2021/ND-CP on the elaboration of the Law on PPP (“
Decree no. 35/2021/ND-CP”).
Source: Internet
The Decree no. 35/2021/ND-CP has some new highlight as follow:
Firstly, this Decree regulates and classifies specifically 6 groups of investment fields with corresponding the scale of a project as a distinct basis to identify the type of project implemented under the PPP method, includes: Transportation project; Power grid, Power plant project; Irrigation project; Medical project; Education – training project; Information technology infrastructure project.
Secondly, this Decree strictly stipulates the responsibility of publishing information on the National Procurement Network to ensure the publicity, elucidation in PPP investment, as follow:
- The competent authority publishes information of the decision on investment guidelines, decision on approval PPP project and publicity the information of PPP project and investors interest survey;
- The procuring entity shall publish the information about the investor selection;
- The contracting authority shall publish the information about: The selected investors, PPP project enterprises; main content of the PPP project contract; and the settlement value of public investment capital in PPP project in case that capital is used;
- The investors shall publish and update information about their capacity, experience in the investor database;
- The complaint and denunciation settling authorities shall provide information about decision on complaint settlement, handling reported violation for the Ministry of Planning and Investment to publish;
- The petition and violation dealing authorities shall publish the result of petition settlement in selecting the investors, decision on handling violation under the PPP method.
Thirdly, Decree no. 35/2021/ND-CP provides guidelines on the transition provision of PPP Law for the PPP project which were approved decision on investment guideline, issued the investment registration certificate by competent authorities before the PPP Law 2020 takes effect, with some highlight regulations as follow:
(i) For a PPP project which was approved decision on investment guidelines, project proposals and state investment before the effective date of the Government’s Decree no. 63/2018/ND-CP, and satisfied the transition conditions regulated in Article 101 of the PPP Law, the following adjustments will be implemented in case a change is needed after the January 1st, 2021:
- The competent authority that approves the investment guidelines and the project proposal is the authority that has the power to decide the changes. In case the project uses state capital, it is required to have approval by the competent authority for use of state capital before the revisions are made;
- Procedures and documentation for revisions shall comply with the PPP Law and this Decree. For projects whose project proposals have been approved by the People’s Committee of the province, the procedures for revising project proposals shall comply with Points a, b, c, and d Clause 4 Article 13 of the PPP Law and this Decree.
(ii) For a PPP project which was decided investment guideline by the competent authority according to the provision of Decree no. 63/2018/ND-CP, satisfied the transition conditions regulated in Article 101 of the PPP Law and after January 1st, 2021 pertain in the revision the investment guideline according to Article 18 of the PPP Law and this Decree, except these cases mentioned below:
- Projects whose decisions on investment guidelines have been issued by the People’s Committees of provinces that need to revise;
- Projects whose revisions to investment guidelines are submitted for approval before January 1st, 2021, in which case establishment of an Assessment Board according to PPP Law and this Decree is not mandatory.
(iii) Besides, for the project that has been issued the investment registration certificate can continue to implement follow the content regulated in such certificate. In case of adjusting the project, the parties adjust the project contract in accordance with this Decree and relevant law. This project shall not have to exercise the adjustment procedure of the investment registration certificate.
This Decree comes into force from March 29th, 2021, excluding Article 90 of this Decree takes effect from October 1st, 2019 and annulled the Government’s Decree no. 63/2018/ND-CP dated May 4th, 2018 on PPP investment.
Vietthink Law Firm./.