Số hiệu | 28/2021/ND-CP |
Loại văn bản | Nghị định |
Cơ quan | Chính phủ |
Ngày ban hành | 26/03/2021 |
Người ký | Nguyễn Xuân Phúc |
Ngày hiệu lực | |
Tình trạng |
THE GOVERNMENT | SOCIALIST REPUBLIC OF VIETNAM |
No. 28/2021/ND-CP | Hanoi, March 26, 2021 |
DECREE
FINANCIAL MANAGEMENT MECHANISM OF PUBLIC - PRIVATE PARTNERSHIP (PPP) PROJECTS
Pursuant to the Law on Government Organization dated June 19, 2015 and the Law dated November 22, 2019 on Amendments to the Law on Government Organization and the Law on Local Government Organization;
Pursuant to the Law on State Budget dated June 25, 2015;
Pursuant to the Law on Promulgation of Legislative Documents dated June 22, 2015 and the Law dated June 18, 2020 on amendments to the Law on Promulgation of Legislative Documents;
Pursuant to the Law on Prices dated June 20, 2012;
Pursuant to the Law on Construction dated June 18, 2014 and the Law dated June 17, 2020 on amendments to the Law on Construction;
Pursuant to the Law on Management and Use of Public Property dated June 21, 2017;
Pursuant to the Law on Public Debt Management dated November 23, 2017;
Pursuant to the Law on Public Investment dated June 13, 2019;
Pursuant to the Law on Securities dated November 26, 2019;
Pursuant to the Law on Enterprises dated June 17, 2020;
Pursuant to the Law on Investment dated June 17, 2020;
Pursuant to the Law on Public - Private Partnership Investment dated June 18, 2020;
At the request of the Minister of Finance;
The Government promulgates a Decree on financial management mechanism for Public - Private Partnership (PPP) Projects
Chapter I
GENERAL PROVISIONS
Article 1. Scope
1. This Decree provides for financial management mechanisms of PPP projects, including:
a) Financial plans of PPP projects;
b) Issuance of bonds by PPP project enterprises;
c) Management and use of state capital in PPP projects;
d) Settlement of capital invested in completed works and infrastructure system;
dd) Procedures for transfer of completed works and infrastructure system to competent authorities;
e) Sharing of increases and decreases in revenue.
2. The part of public investment capital for preparation of projects of competent authorities, units preparing PPP projects, procuring entities, PPP Project Assessment Boards (hereinafter referred to as “Assessment Board”), units assigned to assess PPP projects (hereinafter referred to as “assessing units”) prescribed in Article 73 of the Law on Public – Private Partnership Investment (hereinafter referred to as “PPP Law"), assistance in construction of works and infrastructure system prescribed in Point a Clause 5 Article 70 of PPP Law; land clearance, compensation, assistance, relocation, assistance in construction of temporary works prescribed by Article 72 of PPP Law shall be managed, used and paid in accordance with regulations on management, use, payment and settlement of projects funded by public investment capital.
3. Procedures for transfer of works and infrastructure system to competent authorities mentioned in Point dd Clause 1 of this Article shall comply with regulations of the PPP project contracts, regulations of law on management, use of public property and relevant laws.
Article 2. Regulated entities
This Decree applies to parties in PPP project contracts; regulatory authorities, authorities, organizations and individuals relevant to PPP investment.
Chapter II
FINANCIAL PLANS OF PPP PROJECTS, CAPITAL FOR EXECUTION OF PPP PROJECTS OF INVESTORS, PPP PROJECT ENTERPRISES
Section 1. FINANCIAL PLANS OF PPP PROJECTS
Article 3. Rules for development of financial plans of PPP projects
1. The financial plan of the PPP project shall include all costs and lawful sources of income during the preparation, execution and operation of the PPP project.
2. Financial indicators of the financial plan shall be calculated according to the after-tax cash flows that are discounted according to the weighted mean of discount rate of deposit interests and ratio of profit to equity of the investor.
3. Actual revenue is the entire revenue from provision of public services, products, exclusive of VAT.
4. The currency used in the financial plan shall be VND.
Article 4. Financial plan contents
The financial plan in the pre-feasibility study report and feasibility study report of a PPP project shall have the following contents:
1. Total investment in the PPP project.
2. Sources of financing for execution of the PPP project:
a) State capital (if any) for the purposes specified in Article 70 and Article 72 of PPP Law:
- Total public investment capital for assistance in construction of works and infrastructure system, compensation, land clearance, assistance, relocation; construction of temporary works;
- Value of public property as prescribed by regulations of law on management and use of public property;
- Schedule for disbursement of public investment capital; time for provision of capital in the form of public property.
b) The investor’s equity:
- Total equity in the PPP project;
- Schedule for disbursement of equity.
c) Capital raised by the investor:
- Total capital raised (categorized by type of capital);
- Time of loan, term of corporate bonds (if any), schedule for disbursement of capital raised by the investor;
- Cost of capital raising: interest rate, interest rate of corporate bonds (if any) and necessary costs relevant to capital raising (if any).
d) Competent authorities shall consider medium-term and long-term loaning interest rates of commercial banks; loan interest rates of similar projects as the basis for development of the financial plan in the pre-feasibility study report or feasibility study report (if any).
3. Proposal of incentives and guarantees (if any).
4. Profit on the investor’s equity.
5. Estimated costs during the operation of the project.
6. Plan for recovery of investment capital and profit of the investor:
a) Prices and fees for probable public services, including initial prices and fees and rules for adjustment thereof according to regulations of law on prices, fees and relevant laws;
b) Estimated revenue from each lawful source of the PPP project enterprise;
c) Time of execution, operation, recovery of capital and profit of the investor;
d) If the PPP project is executed under a BTL contract, the BLT contract, the plan for recovery of capital and profit of the investor shall include regulations on sources of payment for the PPP project enterprise, including:
- The schedule for payment of public investment capital for execution of the PPP project:
- Schedule for payment of regular expenditures of the PPP project enterprise during operation stage;
- Revenue from provision of public services by the PPP project enterprise (if any).
7. Payments to state budget (if any) in case the PPP project is executed under an O&M contract.
8. Criteria for analysis, assessment of the feasibility of the financial plan:
a) Net present value (NPV);
b) Internal Rate of Return (IRR);
c) Benefit-cost ratio (BCR)
d) Impacts of the financial criteria above in case of changes to the total investment, operating cost, revenue, project contract duration;
dd) On the basis of characteristics of the PPP project, the competent authority may add other financial criteria such as: ratio of debt to equity, solvency ratio, quick asset conversion rate, payment ability ration, measures for capital preservation as prescribed by applicable laws in order to select effective investment projects.
9. Regulations of this Article are the basis for relevant authorities to prepare, assess, approve pre-qualification documents, bidding documents and conclude PPP project contracts.
Section 2. SOURCES OF FINANCING FOR EXECUTION OF PPP PROJECTS OF INVESTORS, PPP PROJECT ENTERPRISES
Article 5. The investor’s equity
1. Equity of the investor that participates in execution of a PPP project is the equity of an independent juridical person or a partnership of independent juridical persons that contribute capital in reality in accordance with the charter of the PPP project enterprise and the PPP project contract.
2. Basis for determination of the investor’s equity:
a) The investor’s latest annual financial statement audited by an independent audit organization and the audited mid-year financial statement (if any);
b) In case the investor is a new organization that is established in the year, its equity shall be determined according to the financial statement audited by an independent audit organization for the period from the establishment date to the date of participation in the PPP project or the latest audited mid-year financial statement. Also, the owner, the owner’s representative or the parent company shall have a written commitment and financial statement proving the adequacy of equity for contributing capital under the financial plan of the PPP project;
c) In case the investor concurrently invests in multiple projects and other long-term financial investments (if any), the investor shall compile a list of projects and long-term financial investments and make sure that the investor’s equity is adequate for all these projects and long-term financial investments;
d) The pre-qualification documents or bidding documents shall specify the basis for determination of the investor’s equity and the time for determination thereof, which is the basis for assessment of the investor’s financial capacity;
dd) At the time of concluding the PPP project contract, the investor and the PPP project enterprise shall send the competent authority and the authority that signs the PPP project contract (hereinafter referred to as “contract-signing authority”) the plan for assurance of adequate equity and supporting documents in accordance with regulations of the PPP project contract, which is the basis for supervising the process of raising capital by the investor and the PPP project enterprise.
3. The investor shall be legally responsible for the accuracy and legitimacy of the provided data and documents relevant to the equity and distribution of equity to the ongoing projects and long-term financial investments, the plan for raising equity during the progress of the PPP project.
Article 6. Raising capital from loans, issuance of corporate bonds and other lawful sources for project execution
1. Loans, issuance of corporate bonds and other lawful sources by the time of negotiation of the project contract shall be determined on the basis of written commitment or agreement between the lenders, bond buyers, bond issuance guarantor and the investor, PPP project enterprise. The total capital promised by the lenders, bond buyers or bond issuance guarantors shall be equal to the capital that the investor, PPP project enterprise has to raise.
2. Total loans, including capital raised by issuance of corporate bonds and other forms of borrowing (if any) must not exceed the total loans specified in the PPP project contract.
3. The PPP project enterprise may only issue privately placed non-convertible bonds, privately placed bonds without warrants after the PPP project contract has been concluded.
4. Issuance of bonds of the project enterprise shall be carried out in accordance with PPP Law and regulations of the Government’s Decree on offering and trading privately placed corporate bonds in the domestic market and offering bonds to international market by non-public companies.
5. Procedures PPP project enterprise that offer privately placed bonds in the domestic market shall satisfy the conditions specified in Clause 4 of this Article and the following conditions:
a) Principal and interest of the issued corporate bonds are fully paid, or debts that are due over the last 03 years before the issuance of bonds (if any) are fully paid;
b) The plan for issuance of corporate bonds must be approved by a competent authority in accordance with regulations of law on offering and trading privately placed corporate bonds in the domestic market and conformable with the financial plan in the concluded PPP project contract;
c) The financial statement of the year preceding the issuance year is audited by an audit organization permitted to audit financial statements of public interest entities. In case the PPP project enterprise has been operating for less than 01 year, the financial statement of the previous year is not required as prescribed in Clause 3 Article 78 of PPP Law.
6. Participants in the issuance are professional securities investors prescribed by regulations of law on offering and trading privately placed corporate bonds in the domestic market. Participants in the offering of bonds to international market shall comply with regulations of the host country.
7. The plan for issuance of bonds of the PPP project enterprise is conformable with the Government’s Decree on offering and trading privately placed corporate bonds in the domestic market, offering bonds to international market and the following regulations:
a) The volume and term of corporate bonds is conformable with the financial plan in the concluded PPP project contract;
b) The plan for settlement of outstanding interest and principal of bonds in case the PPP project enterprise has its contract terminated as prescribed by Clause 2 Article 52 of PPP Law.
8. Information about the issuance of bonds of the PPP project enterprise shall be disclosed in accordance with regulations of law on disclosing information when offering and trading privately placed corporate bonds in the domestic market, offering bonds to international market and the following regulations:
a) Information to be disclosed prior to the issuance: financial plan of the project according to the concluded contract; procedures for management and disbursement of capital raised from the bond issuance; plan for settlement of outstanding interest and principal of bonds prescribed in Clause 7 of this Article;
b) Periodic disclosure of information about management and use of capital raised from the bond issuance and progress of the PPP project.
9. b) In case the PPP project enterprise has its contract terminated as prescribed in Clause 2 Article 52 of PPP Law, the outstanding interest and principal of bonds shall be paid to bond buyers as follows:
a) The substitute investor prescribed in Clause 2 Article 53 of PPP Law shall take over the responsibility to pay principal and interests of the bonds under the terms and conditions of corporate bonds issued by the PPP project enterprise;
b) In case a competent authority takes over the project before premature termination of the PPP contract, the PPP project enterprise shall pay principal and interests of corporate bonds ahead of schedule to the buyers using the budget for acquisition of the PPP project enterprise or compensation for termination of the PPP project contract as prescribed in Clause 6 Article 52 of PPP Law and other lawful source of financing of the PPP project enterprise.
10. The PPP project enterprise shall submit a report to the contract-signing authority on the raising and use of capital under the PPP project contract.
Chapter III
MANAGEMENT, USE, PAYMENT OF STATE CAPITAL DURING EXECUTION OF PPP PROJECTS
Article 7. Rules for management of state capital during execution of PPP projects
1. Public investment capital, value of public property provided as assistance in construction of works and infrastructure system prescribed in Article 70 of PPP Law:
a) The use of public investment capital provided as assistance in construction of works and infrastructure system prescribed in Point b Clause 5 Article 70 of PPP Law shall be specified in the PPP project contract in terms of ratios, values, schedules and conditions.
b) The ratio of state capital in the PPP project prescribed in Point a, Point c Clause 1 Article 69 of PPP Law shall not exceed 50% of the total investment specified in the PPP project contract. In case the project has multiple component projects including PPP component projects, the ratio of state capital prescribed in Point a, Point c Clause 1 Article 69 of PPP Law shall not exceed 50% of the total investment in the component project using state capital.
c) The state capital used in the PPP project prescribed in Point a, Point c Clause 1 Article 69 of PPP Law shall not be included in the plan for recovery of capital and profit of the investor.
2. Use of public property as assistance in construction of works and infrastructure system:
a) The authority and procedures for deciding the use of public property as assistance in construction of works and infrastructure system shall comply with regulations of law on management and use of public property;
b) Public property used for construction of works and infrastructure system shall undergo valuation in accordance with regulations of law on prices, management and use of public property. The valuation certificate shall be issued within 06 months before the investment guidelines of the PPP project are approved by a competent authority.
3. State capital for payment to the PPP project enterprise for provision of public services and products under the BTL contract or BLT contract:
a) For projects whose regular expenditures are not covered or only partially covered by state agencies, public service providers, capital for payment to the PPP project enterprise includes:
- Public investment capital in the medium-term and annual public investment plans for paying investment costs of PPP projects;
- Regular capital of state budget in annual budget estimates and revenues (if any) of the PPP project for payment of operating costs of the PPP project enterprise.
b) For projects whose regular expenditures are covered by state agencies, public service providers, capital for payment to the PPP project enterprise includes:
- Public service development fund of the public service provider, funding for on development investment from state budget allocated for payment of investment costs of the PPP project that are covered by state capital in the PPP project;
- Other sources of income prescribed by law (if any).
c) Sources of payment, conditions for payment, payment rate, time and deadline shall be specified in the PPP project contract.
4. State capital extracted from regular capital for payment of the costs of project execution after contract conclusion by the competent authority, contract-signing authority prescribed in Clause 3 Article 73 of PPP law shall comply with regulations of law on state budget.
5. The State shall pay the PPP project enterprise for the decrease in revenue according to the mechanism sharing increase and decrease in revenue from the state budget reserve prescribed in Article 82 of PPP Law in accordance with Chapter V of this Decree.
Article 8. Rules for control of payment of public investment capital, regular capital, capital from lawful sources of income of the PPP project enterprise for making investment in the PPP project, payment from state budget reserve
1. State Treasury shall be responsible for control of payment of public investment capital, regular capital and lawful sources of income of the PPP project enterprise for making investment, paying regular expenditures and making payment from state budget reserve in the PPP project.
2. State capital in the PPP project shall be paid when the competent authority assigns the capital plan and budget estimate as prescribed by law.
3. Public investment capital for assistance in construction of work items and infrastructure prescribed in Point b Clause 5 Article 70 of PPP Law may only be used to pay for completed items that have been confirmed by the contract-signing authority and according to the ratios of financing sources, values, schedules, conditions specified in the PPP project contract, the medium-term and annual public investment capital plan approved by competent authorities.
4. State capital shall be paid to the PPP project enterprise for provision of public services, products under the BTL, BLT contract when the public services, products are provided as agreed in the PPP project contract. The periodic payment value shall depend on the volume and quantity of public services, products provided in reality by the PPP project enterprise under the PPP project contract and shall be conformable with the medium-term and annual public investment capital plan and regular expenditure estimates approved by competent authorities.
5. State capital paid to the PPP project enterprise must not exceed the state capital used for execution of the PPP project approved by competent authority and specified in the PPP project contract. The state capital paid to the PPP project enterprise in the year must not exceed that specified in the annual capital plan.
6. On the basis of the application for payment sent by the contract-signing authority and regulations of the PPP project contract, State Treasury shall control the payment of state capital. In case the application is unconformable or adequate, the State Treasury shall refuse to pay the contract-signing authority and provide explanation.
7. The contract-signing authority shall take responsibility to the law and the competent person for the eligibility of the PPP project enterprise for disbursement as prescribed by this Decree and the PPP project contract; take responsibility for the value of requested payment; supervise and determine the ratio of equity of the PPP project enterprise which has been disbursed under the PPP project contract; ensure legitimacy of the documents provided for State Treasury and competent authorities.
8. In case documents in the application for payment of the competent authorities are not conformable with law, the State Treasury may suspend the payment and request the competent authorities in writing to reconsider and provide opinions. Within 10 working days from the day on which the written request is sent by the State Treasury, if the competent authorities do not provide any response or satisfactory response, the State Treasury shall report to the superior authority and the finance authority for settlement.
Article 9. Procedures for making state capital payment via State Treasury
1. Submit documents and receive result in person at the State Treasury.
2. Submit documents and receive result on State Treasury’s website (see instructions on the website).
3. Send documents and receive result on the National Public Service Portal.
Article 10. Single-submission legal documents for control and payment of public investment capital, regular capital, capital from lawful sources of income for investment and payment of regular expenditures during execution of the PPP project
1. The contract-signing authority shall send the State Treasury where its account is opened 01 set of legal documents (original copies or certified true copies, only submitted once until the PPP project contract is terminated, unless they have to be revised or supplemented) before or at the same time as the request for payment of public investment capital, regular capital, capital from lawful sources of income for investment and regular expenditures in the PPP project.
2. The single-submission legal documents include:
a) The decision to approve the PPP project issued by the competent authority and decisions on adjustments to the PPP project (if any);
b) The PPP project contract and its appendices (if any).
Article 11. Documents for control and payment of public investment capital, regular capital, capital from lawful sources of income for investment and payment of regular expenditures during execution of the PPP project
1. On the basis of the volume of completed works that have been accepted and payment conditions in the PPP project contract, the contract-signing authority shall prepare and submit 01 set of application for payment of public investment capital for assistance in construction of works and infrastructure system prescribed in Point b Clause 5 Article 70 of PPP Law, which consists of the following documents:
a) The table of volume of completed works to be paid for under the PPP project contract prepared by the PPP project enterprise and confirmed by the contract-signing authority (Appendix I);
b) The request or payment of public investment capital (Appendix II);
c) Money transfer document prescribed in Decree No. 11/2020/ND-CP.
2. On the basis of public services and products provided under the PPP project contract, the contract-signing authority shall prepare and send 01 set of documents requesting payment to the PPP project enterprise that provides public services and products under the BLT, BTL contract, including:
a) The table of volume and quality of public services and products to be paid for prepared by the PPP project enterprise and confirmed by the contract-signing authority (Appendix III);
a) The request for payment to the PPP project enterprise that provides public services and products (Appendix IV);
c) Money transfer document prescribed in Decree No. 11/2020/ND-CP.
Chapter IV
SETTLEMENT OF INVESTMENT CAPITAL INVESTED IN CONSTRUCTION WORKS AND INFRASTRUCTURE SYSTEM
Article 12. Annual settlement of public investment capital, regular capital, capital from lawful sources of income for investment and payment of regular expenditures
The contract-signing authority shall settle public investment capital annually in accordance with regulations on management, payment and settlement of projects funded by public investment capital; settle sources of regular expenditure annually in accordance with regulations on examination, validation, notification and preparation of annual statements.
Article 13. Rules for settlement of capital invested in completed works and infrastructure system of PPP projects
1. After the PPP project, component projects, sub-projects, independent works and items of the PPP project are completed, the report on settlement of capital invested in the completed project shall be audited for settlement of investment capital in accordance with Article 60 of PPP Law.
2. For the public investment capital provided as assistance in construction of works and infrastructure system prescribed in Point b Clause 5 Article 70 of PPP Law, the contract-signing authority shall calculate the total value of public investment capital disbursed to the PPP project enterprise, which is the basis for the independent audit organization to settle public investment capital in the PPP project under the PPP project contract.
3. Settlement of capital invested in completed works and infrastructure system means determination of lawful costs during the investment process for putting the project into operation under the PPP project contract concluded by the contract-signing authority, the investor, PPP project enterprise as prescribed by law.
4. The rules for determination of capital raising costs, cost contingency, cost reduction by the PPP project enterprise according to Clause 2 Article 61 of PPP Law and other costs incurred shall be specified in the PPP project contract and comply with relevant laws.
5. The parties to the PPP project contract shall, on the basis of settled value of capital invested in completed works and infrastructure system and regulations of the PPP project contract, organize the fulfillment of rights and obligations (if arise).
Article 14. Procedures for settlement of capital invested in completed works and infrastructure system
1. In case the PPP project is executed under a BOT, BOO, O&M or BLT contract, the contract-signing authority and PPP project enterprise shall reach an agreement on selection of a capable and experienced independent audit organization to audit the costs of construction of works and infrastructure system as prescribed in Clause 3 Article 60 of PPP Law.
2. In case the PPP project is executed under a BTO or BTL contract: After the PPP project is completed, the contract-signing authority shall send a document requesting State Audit of Vietnam (SAV) to audit the costs of construction of works and infrastructure system as prescribed in Clause 3 Article 85 of PPP Law.
3. For mixed contracts: According to the contents of the PPP project contract, the contract-signing authority and PPP project enterprise shall reach an agreement on procedures for settlement of capital invested in construction works and infrastructure system in accordance with Article 60 and Article 85 of PPP Law and regulations of this Decree.
4. The PPP project enterprise shall prepare and send 01 set of documents for settlement of capital invested in completed works and infrastructure system to the contract-signing authority within the following time limits:
a) If the decision on investment is issued by the National Assembly or the Prime Minister: 09 months;
b) If the decision on investment guidelines is issued by the Minister, head of a central authority, another authority or provincial People’s Council: 06 months;
c) The time limits mentioned in Point a and Point b of this Clause begin when the construction work, infrastructure system is accepted as prescribed by law.
5. The contract-signing authority shall consider approving the value of capital invested in completed works and infrastructure system within 01 from the receipt of adequate documents from the PPP project enterprise as prescribed in Article 15 of this Decree.
Article 15. Documents for settlement of capital invested in completed works and infrastructure
1. The request for approval for the value of capital invested in completed works and infrastructure prepared by the PPP project enterprise (original copy). This document shall specify the contents agreed and disagreed by the PPP project enterprise and the audit organization.
2. The PPP project contract documents prescribed in Article 46 of PPP Law (certified true copies).
3. The audit report prepared by the independent audit organization in case the project is executed under a BOT, BOO, O&M or BLT contract; the SAV's audit report in case the project is executed under a BTO or BTL contract (certified true copies).
4. The verdict or inspection record of the inspection authority, investigation results given by competent authority in case the PPP project enterprise commits violations of law and is investigated by the competent authority (certified true copies) (if any).
5. Report on implementation of regulations of Clause 3 and Clause 4 of this Article by the PPP project enterprise (original copy).
Chapter V
DISTRIBUTION OF INCREASES AND DECREASES IN REVENUE
Article 16. Rules for management of revenue and expenditure sources derived from revenue sharing mechanism
1. For the PPP project enterprise:
a) The increase in revenue to be shared by the PPP project enterprise with the State prescribed in Clause 1 Article 82 of PPP Law shall be directly deducted from revenue when calculating income subject to corporate income tax of the PPP project enterprise.
b) The PPP project enterprise shall pay the increase in revenue to be shared with the State to state budget in accordance with regulations of law on state budget.
c) The decrease in revenue to be shared by the State with the PPP project enterprise as prescribed in Clause 2 Article 82 of PPP Law shall be recorded as revenue from provision of public services and products by the PPP project enterprise. The PPP project enterprise is not required to declare and pay tax on the decrease in revenue shared by the State with the PPP project enterprise as prescribed in Clause 2 Article 82 of PPP Law.
2. For the State:
b) If the decision on investment guidelines is issued by the National Assembly, the Prime Minister, the Minister, head of a central authority, another authority, the increase in revenue shared by the PPP project enterprise with the State as prescribed in Clause 1 Article 82 of PPP law shall be central government budget revenue;
b) If the decision on investment guidelines is issued by the provincial People’s Council, the increase in revenue shared by the PPP project enterprise with the State as prescribed in Clause 1 Article 82 of PPP law shall be local government budget revenue;
c) State capital for sharing of decrease in revenue with PPP project enterprises:
- If the decision on investment guidelines is issued by the National Assembly, the Prime Minister, the Minister, head of a central authority, another authority, central government budget reserve shall be used to share the decrease in revenue prescribed in Clause 2 Article 82 of PPP law;
- If the decision on investment guidelines is issued by the provincial People’s Council, local government budget reserve shall be used to share the decrease in revenue prescribed in Clause 2 Article 82 of PPP law.
d) The state shall pay the decrease in revenue to the PPP project enterprise in accordance with Clause 2 Article 82 of PPP Law after a competent authority issues a decision on use of state budget reserve for the PPP project. The decrease in revenue shared by the State with the PPP project enterprise is exclusive of VAT.
Article 17. Procedures for sharing increase and decrease in revenue
1. Annually on the basis of actual revenue reported by the PPP project enterprise as prescribed in Clause 1 Article 20 of this Decree, the contract-signing authority, the PPP project enterprise and the investor shall:
a) Review, compare actual revenue of the PPP project and the revenue specified in the PPP project contract;
b) Adjust the prices, fees of public services and products; adjust contract duration as prescribed in Clause 1 and Clause 2 Article 82 of PPP Law.
c) In the cases where the revenue sharing mechanism prescribed in Clause 1 and Clause 2 Article 82 of PPP Law can be applied, the contract-signing authority shall request SAV to audit the actual increase or decrease in revenue of the PPP project as the basis for determination of the revenue to be shared between the State and the PPP project enterprise.
2. On the basis of the audit report prepared by SAV and the PPP project contract, the contract-signing authority shall determine the revenue to be shared between the State and the PPP project enterprise and submit a report to the competent authority.
3. Regarding the increase in revenue to be shared by the PPP project enterprise with the State determined by the parties specified in Clause 2 of this Article, the PPP project enterprise shall pay it to state budget within 60 days from the day on which SAV issues the audit report.
4. Procedures for sharing the decrease in revenue to be shared by the State with the PPP project enterprise determined by the parties specified in Clause 2 of this Article:
a) If the decision on investment guidelines is issued by the National Assembly, the Prime Minister, the Minister, head of a central authority, another authority:
- The competent authority shall send 01 set of the following documents to the Ministry of Finance requesting implementation of the mechanism for sharing the decrease in revenue:
(i) The report of SAV on audit of the decrease in revenue of the PPP project enterprise (certified true copy);
(ii) The contract-signing authority’s request for sharing of the decrease in revenue which specify the decrease in revenue to be shared by the State with the PPP project enterprise (original coy).
- The Ministry of Finance shall take charge and cooperate with relevant authorities in proposing the Prime Minister the use of central government budget reserve for paying the decrease in revenue to the PPP project enterprise as prescribed in Clause 2 Article 82 of PPP Law.
b) In case the decision on investment guidelines is issued by the provincial People’s Council:
- The contract-signing authority shall send 01 set of the following documents to the Provincial Department of Finance requesting implementation of the mechanism for sharing revenue:
(i) The report of SAV on audit of the decrease in revenue of the PPP project enterprise (certified true copy);
(ii) The contract-signing authority’s request for sharing of the decrease in revenue which specify the decrease in revenue to be shared by the State with the PPP project enterprise (original coy).
- Provincial Department of Finance shall take charge and cooperate with relevant authorities in proposing the People’s Committee of the province the use of local government budget reserve for sharing the decrease in revenue with the PPP project enterprise as prescribed in Clause 2 Article 82 of PPP Law.
c) the competent authority shall consider deciding the use of state budget reserve to pay for the share of decrease in revenue to the PPP project enterprise within 60 days from the day on which the finance authority receives adequate documents specified in Clause 4 of this Article.
Article 18. Paying the share of decrease in revenue from state budget reserve
1. Pursuant to the decision issued by a competent authority on use of state budget reserve prescribed in Clause 4 Article 17 of this Decree, the competent authority of the PPP project, the contract-signing authority shall request the finance authority at the same level in writing to issue an order of payment of the share of decrease in revenue to the PPP project enterprise and send it to the State Treasury in accordance with state budget laws.
2. On the basis of the payment order issued by the finance authority, the State Treasury shall inspect the validity and legitimacy of the payment order and transfer money to the account of the PPP project enterprise in accordance with state budget laws.
Chapter VI
REPORTING
Article 19. Responsibilities of the competent authority, contract-signing authority, state agencies having public property in the PPP project
1. The competent authority shall report the progress and disbursement of public investment capital, regular capital, lawful sources of income for making investment and paying regular expenditures that are covered by state budget during the execution of the PPP project contract in accordance with regulations of law on public investment, state budget, management and use of public property and relevant laws.
2. The state agencies having public property in the PPP project shall report the use of public property in the PPP project in accordance with regulations of law on management and use of public property.
3. The competent authority shall consolidate the commitments to use state capital in the PPP project contracts in the report on execution of the PPP project and submit it to the central PPP authority as prescribed in Clause 7 Article 94 of PPP Law.
Article 20. Responsibilities of the investor and PPP project enterprise
1. Within 10 days from the day on which the PPP project enterprise submits the annual tax finalization documents as prescribed by tax laws, the PPP project enterprise shall submit a report to the contract-signing authority on actual revenue in the fiscal year as the basis for implementation of the mechanism for sharing increase/decrease in revenue (if any).
2. The PPP project enterprise that is assigned public property by the State shall use the public property in accordance with the PPP project contract and regulations of law on management and use of public property; submit reports on the use of public property for execution of the PPP project in accordance with regulations of law on management and use of public property.
Chapter VII
DUTIES, ENTITLEMENTS, RESPONSIBILITIES OF AUTHORITIES, ORGANIZATIONS AND INDIVIDUALS
Article 21. Duties and entitlements of the Ministry of Finance
1. Submit consolidated reports to the Prime Minister on use of central government budget reserve in case of sharing decrease in revenue of PPP projects whose decision on investment guidelines are issued by the National Assembly, the Prime Minister, Ministers, heads of central authorities, other authorities.
2. Preside over the organization of payment, settlement of state capital in PPP projects, settlement of capital invested in completed works and infrastructure systems.
3. Cooperate with the Ministry of Planning and Investment in submitting reports on public investment capital in PPP projects to the Government.
4. Cooperate with the Ministry of Planning and Investment in supervising the implementation of financial plans in PPP project contracts of Ministries, central authorities, other authorities sand the People’s Committees of provinces.
Article 22. Duties and entitlements of the Ministry of Planning and Investment
1. Take charge and cooperate with the Ministry of Finance in submitting reports on public investment capital in PPP projects to the Government.
2. Take charge and cooperate with the Ministry of Finance, other Ministries, central authorities, other authorities and the People’s Committees of provinces in supervising execution of PPP projects.
3. Cooperate with the Ministry of Finance in preparing and submitting reports to the Prime Minister on use of central government budget reserve in case of sharing decrease in revenue of PPP projects whose decision on investment guidelines are issued by the National Assembly, the Prime Minister, Ministers, heads of central authorities, other authorities.
Article 23. Responsibilities of the competent authority and contract-signing authority
1. Implement regulations of PPP Law, the Law on State Budget, the Law on Public Investment, the Law on Management and Use of Public Property, the Law on Prices, their guiding documents and regulations of the PPP project contract.
2. Assess financial capacity of investors on the basis of documents they provide in order to choose a financially capable investor to execute the PPP project; supervise the fulfillment of the commitments to raise equity of the investor under the PPP project contract.
3. Consider approving the plan for settlement of finance, rights, responsibilities and obligations of the parties in case the PPP project contract is terminated as prescribed in Article 52 of PPP Law.
4. Inspect and supervise the execution of the PPP project, including raising, use of capital of the investor, the PPP project enterprise under the PPP project contract.
5. Supervise the contract-signing authority and the PPP project enterprise settling capital invested in completed works and infrastructure systems as per regulations.
6. Report the difficulties that arise during the implementation of this Decree to the Ministry of Finance, which will submit a consolidated report to the Government.
Article 24. Responsibilities of the investor and PPP project enterprise
1. Exercise and fulfill the rights and obligations specified in the PPP project contract and relevant regulations of law.
2. Cooperate with the competent authority, contract-signing authority, authority or unit assigned to manage state capital in the PPP project in completing documents for payment of state capital in the PPP project, and settlement documents of completed works and infrastructure system.
3. Determine revenues, costs, other incomes for tax calculation in accordance with tax laws and regulations of this Decree.
Chapter VIII
IMPLEMENTATION CLAUSES
Article 25. Transition clauses
1. In case the bid closing date of a PPP project is later than the effective date of this Decree, the procuring entity shall extend the bidding documents in accordance with bidding laws in order to revise the bidding documents, request for proposals in accordance with this Decree; ensure this does not lead to revision of the investment guidelines and approved feasibility study report.
2. In case a PPP project has stopped receiving bids when this Decree comes into force but the PPP project contract is yet to be concluded, the contract-signing authority shall organize contract negotiation and conclusion in accordance with Clause 3 Article 101 of PPP Law and regulations of this Decree regarding the procedures for payment of state capital in the PPP project, settlement of capital invested in construction works and infrastructure system, implementation of the mechanism for sharing increase/decrease in revenue; ensure that this does not lead to revision of the investment guidelines and approved feasibility study report.
3. The PPP project contracts that are concluded before the effective date of this Decree shall continue to be executed.
4. Capital invested in works and infrastructure systems under the PPP project contracts that are concluded before the effective date of this Decree shall be settled in accordance with regulations of law that are applicable when these contracts are concluded.
Article 26. Effect
1. This Decree comes into force from the day on which it is signed.
2. Ministers, Heads of ministerial agencies, Heads of Governmental agencies, Presidents of the People’s Committees of provinces, relevant organizations and individuals are responsible for the implementation of this Decree./.
| ON BEHALF OF THE GOVERNMENT |
Số hiệu | 28/2021/ND-CP |
Loại văn bản | Nghị định |
Cơ quan | Chính phủ |
Ngày ban hành | 26/03/2021 |
Người ký | Nguyễn Xuân Phúc |
Ngày hiệu lực | |
Tình trạng |
Số hiệu | 28/2021/ND-CP |
Loại văn bản | Nghị định |
Cơ quan | Chính phủ |
Ngày ban hành | 26/03/2021 |
Người ký | Nguyễn Xuân Phúc |
Ngày hiệu lực | |
Tình trạng |
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