Powers and responsibilities of state regulatory authorities for ppp investments in Vietnam

Vietnam law has regulations on powers and responsibilities of state regulatory authorities for ppp investments. Let’s find out this issue with Lawyer X through the following situation: “Dear Lawyer! I want to ask what are duties and powers of the Government and the Prime Minister for ppp investments in Vietnam? What are Duties and powers of the Ministry of Planning and Investment? Thanks for answering my questions!”

Legal grounds

• 2020 Vietnam Law on Public-Private Partnership Investment.

Duties and powers of the Government and the Prime Minister

– The Government shall have the following rights and responsibilities:

+ Carry out the uniform state management of PPP investments;

+ Issue, within their jurisdiction, or request competent authorities to issue, legislative documents regarding PPP investments;

+ Examine, inspect and supervise the implementation of PPP investments.

– The Government shall have the following duties and powers:

+ Issue, within their jurisdiction, legislative documents regarding PPP investments;

+ Make decisions on termination or suspension of PPP contracts with respect to those projects falling under the authority to issue investment policy decisions of the National Assembly or the Prime Minister.

Duties and powers of the Ministry of Planning and Investment

– Perform the functions of an authority vested with powers to manage PPP investments at the central level, take responsibility to the Government for the state management of PPP investment nationwide.

– Issue, within their jurisdiction, or request competent authorities to issue, legislative documents regarding PPP investments.

– Take charge of, and cooperate with competent authorities in, carrying out the examination, inspection and supervision; annually synthesize and evaluate the implementation of PPP projects nationwide.

– Building and managing communication systems and databases regarding PPP investment activities.

– Implement other duties and powers as stipulated by law.

Duties and powers of the Ministry of Finance

– Issue, within their jurisdiction, or request competent authorities to issue, legislative documents regarding financial mechanisms to be applied to PPP investments.

– Take charge of formulating and implementing the mechanism for sharing of the reduced or increased revenues arising from the projects falling under the investment policy decision-making competence of the National Assembly, the Prime Minister, Ministers, Heads of central or other authorities.

– Implement other duties and powers as stipulated by law.

Duties and powers of Ministries, central and other authorities

– Carry out the management of and guidance on PPP investments falling within their remit.

– Implement responsibilities of competent authorities specified in Article 94 of 2020 Vietnam Law on Public-Private Partnership Investment with respect to PPP projects under their jurisdiction.

– On an annual basis, synthesize, evaluate and report on the implementation of PPP projects falling within their remit.

– Implement other duties and powers as stipulated by law.

Duties and powers of provincial People’s Committees

– Perform the functions of an authority accorded the state management of PPP investments at their localities.

– Perform responsibilities of competent authorities specified in Article 94 of 2020 Vietnam Law on Public-Private Partnership Investment for PPP projects falling under their jurisdiction; decide to terminate or suspend PPP contracts for projects falling under the authority to issue investment policy decisions of provincial People’s Councils.

– On an annual basis, synthesize, evaluate and report on the implementation of PPP projects falling within their remit.

– Take charge of, and cooperate with PPP project enterprises in, undertaking compensation, site clearance, support and resettlement for PPP projects falling under the latter’s remit; take charge of, and cooperate with Ministries, central authorities, other agencies and PPP project enterprises in, performing the tasks of compensation, support and resettlement for PPP projects falling under the latter’s authority.

– Implement other duties and powers as stipulated by law.

Responsibilities of competent authorities

– Undertake the preparation of pre-feasibility study reports and feasibility study reports for PPP projects, the selection of investors, negotiation and conclusion of PPP contracts according to their competence specified in 2020 Vietnam Law on Public-Private Partnership Investment.

– Cancel or suspend the bids, refuse to recognize the results of investor selection or declare that decisions of bid solicitors are null and void when detecting any violation of the law on PPP investment, investor selection or other relevant laws.

– Decide to terminate or suspend PPP contracts for projects falling within their authority to issue investment policy decisions in accordance with 2020 Vietnam Law on Public-Private Partnership Investment.

– Request bid solicitors and contracting authorities to provide documents and records necessary for the examination, inspection, supervision, monitoring; deal with petitions and sanction PPP investment-related violations.

– Pay compensation in accordance with laws.

– Give explanations about the implementation of the provisions of this Article at the request of superior authorities, examination, inspection, auditing, supervision or state regulatory authorities in charge of PPP investment affairs.

– Publicize information about PPP projects; periodically report to central regulatory authorities in charge of PPP investment affairs on the implementation of PPP projects under their jurisdiction.

– Implement other duties stipulated herein.

Handling of petitions arising from investor selection activities

– If there are grounds for presuming that their legitimate rights and interests are affected, investors shall have the following rights:

+ Submit petitions regarding investor selection process and results to bid solicitors and competent authorities according to the petition settlement process specified in Article 96 of 2020 Vietnam Law on Public-Private Partnership Investment;

+ Initiate Court proceedings within the statute of limitations in accordance with civil law.

– The bid solicitor or competent authority shall not consider settling the petition if the investor has initiated the court proceedings; where the case is considered for settlement according to the process specified in Article 96 of 2020 Vietnam Law on Public-Private Partnership Investment, the authority currently handling the petition shall notify the termination of the consideration and settlement of the petition.

Procedures for handling of petitions arising from investor selection activities

– Procedures for settlement of petitions about issues arising in the process of selection of investors shall be subject to the following regulations:

+ The investor sends a written petition to the bid solicitor from the date of occurrence to the date prior to the announcement of the results of investor selection;

+ The bid solicitor must send a written document stating settlement of the petition to the investor within 07 working days from the date of receipt of the written petition from the investor;

+ In case where the bid solicitor does not have a written document stating settlement of the petition or the investor disagrees about petition settlement results, the investor shall have the right to send the petition to the competent authority within 05 working days from the deadline for sending their reply or the date of receipt of the bid solicitor’s written document on settlement of the petition;

+ The competent authority must send a written document stating settlement of the petition to the investor within 07 working days of receipt of the written petition from the investor.

– Procedures for settlement of petitions pertaining to investor selection results shall be subject to the following regulations:

+ The investor must send a written petition to the bid solicitor within 10 working days of receipt of the notification of investor selection results;

+ The bid solicitor must send a written document stating settlement of the petition to the investor within 15 working days of receipt of the written petition from the investor;

+ In case where the bid solicitor does not have a written document stating settlement of the petition or the investor disagrees about petition settlement results, the investor shall have the right to send the written petition to the competent authority and the standing organ of the Petition Settlement Advisory Board within 05 working days from the deadline for sending their reply or the date of receipt of the bid solicitor’s written document on settlement of the petition.

The central-level Petition Settlement Advisory Board shall be established by the Minister of Planning and Investment; the Petition Settlement Advisory Board at the Ministry, central authority, other body level shall be established by Ministers, heads of central authorities or other bodies; the Petition Settlement Advisory Board at the local level shall be established by the President of the provincial People’s Committee;

+ Upon receipt of the written petition, Petition Settlement Advisory Boards shall have the right to request investors or bid solicitors and concerned entities to provide information to consider and report in writing to competent authorities on methods and contents of the response to the petition within 30 days of receipt of the written petition from the investor;

+ Where necessary, the Petition Settlement Advisory Board shall, based on the investor’s written petition, request the competent authority to consider temporarily suspending the bid. In case of acceptance of the petition, within 05 working days of receipt of the written document from the Petition Settlement Advisory Board, the competent authority must send a written notification of temporary suspension of the bid. The written document stating temporary suspension of the bid must be sent to the bid solicitor or the investor within 05 working days from the date of issuance of the written notification of temporary suspension of the bid. The duration of temporary suspension of the bid shall range from the date of the bid solicitor’s receipt of the written notification of temporary suspension to the date of the competent authority’s issuance of the written document stating settlement of the petition;

+ The competent authority must issue the decision on settlement of the petition regarding results of investor selection within 10 working days of receipt of the written opinion from the Petition Settlement Advisory Board.

– If an investor submits a petition directly to a competent authority without compliance with the petition settlement procedures specified in this Article, the written petition shall not be considered for further action.

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