Decree No. 108/2009/ND-CP dated November 27, 2009 of the Government on investment in the form of Build-Operate-Transfer, Build-Transfer-Operate or Build-Transfer Contract
SOCIALIST REPUBLIC OF VIET NAM
Independence - Freedom – Happiness
Hanoi, November 27, 2009
ON INVESTMENT IN THE FORM OF BUILD-OPERATE-TRANSFER, BUILD-TRANSFER-OPERATE OR BUILD-TRANSFER CONTRACT
Pursuant to the December 25, 2001 Law on Organization of the Government;
Pursuant to the November 29, 2005 Investment Law;
Pursuant to the November 26, 2003 Construction Law;
Pursuant to the November 29, 2005 Enterprise Law;
Pursuant to the June 19, 2009 Law Amending and Supplementing a Number of Articles of the Laws concerning capital construction investment;
At the proposal of the Minister of Planning and Investment;
Article 1. Scope and subjects of regulation
1. This Decree provides for investment domains, conditions, order, procedures and incentives; and rights and obligations of parties to build-operate-transfer, build-transfer-operate and build-transfer contracts.
The Ministry of Planning and Investment shall, on a case-by-case basis, submit other project contracts of similar forms to the Prime Minister for consideration and decision.
2. This Decree applies to investors, state agencies competent to sign and perform project contracts, and agencies, organizations, individuals and enterprises involved in project implementation as provided for in this Decree.
Article 2. Interpretation of terms
In this Decree, the terms below are construed as follows:
1. Build-operate-transfer (BOT) contract means a contract signed between a competent state agency and an investor to build and operate an infrastructure facility in a specified duration. Upon the expiration of this duration, the investor shall transfer without compensation such facility to the Vietnamese State.
2. Build-transfer-operate (BTO) contract means a contract signed between a competent state agency and an investor to build an infrastructure facility. After completely building this infrastructure facility, the investor shall transfer it to the Vietnamese State. The Government will grant the investor the right to operate that facility for a specified duration to recover investment capital and earn profits.
3. Build-transfer (BT) contract means a contract signed between a competent state agency and an investor to build an infrastructure facility. After completely building this infrastructure facility, the investor shall transfer it to the Vietnamese State. The Government will create conditions for the investor to implement other projects for recovering investment capital and earning profits or shall make payments to the investor as agreed in the BT contract.
4. Project means the one to be implemented under a BOT. BTO or BT contract. Projects include national important projects and other projects classified into groups A, B and C under the construction law.
5. Another/other projects means a different project or projects which a competent state agency assigns to an investor for implementation under the terms agreed in the project contract.
6. Project contract means a BOT, BTO or BT contract as defined respectively in Clause 1, 2 or 3 of this Article and attached documents.
7. Investors include organizations and individuals defined in the Investment Law.
8. BOT, BTO or BT enterprise (below collectively referred to as project enterprise) means an enterprise established by an investor to design, build, operate and manage project works and implement other projects.
9. Feasibility study report (work construction investment project) means a combination of proposals relating to the contribution of capital for designing, building, operating and managing infrastructure facilities in the form of BOT. BTO or BT contract.
10. Infrastructure facilities means facilities encouraged for construction specified in Article 4 of this Decree.
11. Project work means a BOT, BTO or BT work.
Article 3. State agencies competent to sign and perform project contracts
1. State agencies competent to sign and perform project contracts include ministries, ministerial-level agencies, government-attached agencies and People's Committees of provinces or centrally run cities (below collectively referred to as ministries, branches and provincial-level People's Committees).
2. Based on their specific functions, tasks, powers and management conditions, ministries, branches and provincial-level People's Committees may authorize their attached agencies to sign and perform contracts of group-B and group-C projects.
3. State agency competent to sign and perform a project contract is a party to the project contract and has the rights, obligations and responsibilities as agreed with the investor in the project contract.
4. Depending on the characteristics and size of a project, a competent state agency may form a full-time section or designate a professional agency under its management to act as the focal point in exercising its rights and fulfilling its obligations indicated in the project contract but shall, in all cases, take total responsibility for the obligations committed in the project contract.
Article 4. Investment domains
1. The Government encourages the implementation of projects to build, operate and manage new infrastructure facilities or to improve, expand, modernize, operate and manage existing works in the following domains:
a/ Roads, road bridges, road tunnels and ferry landings;
b/ Railways, railway bridges and railway tunnels;
c/ Airports, seaports and river ports;
d/ Clean water supply systems; water drainage systems; and wastewater and waste collection and treatment systems;
e/ Power plants and power transmission lines;
f/ Other infrastructure facilities as decided by the Prime Minister.
2. For works specified at Point f, Clause 1 of this Article, ministries, branches and provincial-level People's Committees shall collect written opinions of concerned ministries, branches and localities and submit them to the Prime Minister for consideration and decision on a case-by-case basis.
Article 5. Capital sources for project implementation
1. Investors or project enterprises shall raise by themselves capital sources for project implementation as agreed in project contracts.
2. For a project capitalized at up to VND 1.5 trillion, the project enterprise's equity must not be lower than 15% of the project's total investment capital.
3. For a project capitalized at over VND 1.5 trillion, the project enterprise's equity shall be determined on the partially progressive principle below:
a/ For the investment capital portion of up to VND 1.5 trillion, the project enterprise's equity must not be lower than 15% of this capital portion;
b/ For the investment capital portion of over VND 1.5 trillion, the project enterprise's equity must not be lower than 10% of this capital portion.
4. Other projects must satisfy the equity requirement (if any) under law.
Article 6. Use of state capital for project implementation
1. The total state capital for implementation of a project must not exceed 49% of the total investment capital of that project.
2. For projects to be implemented to meet urgent needs for the use of infrastructure facilities and other important projects, ministries, branches and provincial-level People's Committees shall consider and decide on the use of state budget capital for building auxiliary works, organizing compensation, ground clearance and resettlement or performing other jobs to support project implementation.
3. Capital sources for supporting the implementation of a project specified in Clause 2 of this Article will not be included in the total investment capital of that project and shall be managed and used under regulations applicable to state-funded investment projects.
Article 7. Inter-branch working parties
1. Based on project negotiation and implementation requirements, a competent state agency shall set up an inter-branch working party to assist in project negotiation and implementation (below referred to as inter-branch working party). Such a party consists of:
a/ Some members representing the competent state agency;
b/ Representatives of central and local agencies in the locality where the project is to be implemented or which are involved in the project;
c/ Some independent legal, technical and financial experts as decided by the competent state agency.
2. Tasks of an inter-branch working party:
a/ To join in negotiating the project contract and assist the competent state agency in performing the tasks defined in this Decree;
b/ To join in solving problems arising from the project implementation;
c/ To perform other tasks at the request of the competent state agency.
3. The working duration of an inter-branch working party shall be decided by the competent state agency, depending on the project implementation requirements.
g/ Investment incentives and supports (if any).
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