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Investor selection for renewable energy projects by competitive negotiation under the PPP Law and Decree 35/2021 guiding the PPP Law

Law on public-private partnership investment No. 64/2020/QH14 promulgated by the National Assembly on 18 June 2020 (“PPP Law”) takes effect from 1 January 2021. Decree 35/2021/ND-CP issued by the Government on 29 March 2021 detailing and guiding the implementation of the PPP Law (“Decree 35”) takes effect from 29 March 2021.

Investor selection for renewable energy projects by competitive negotiation is specified in the PPP Law and Decree 35 with the following key takeaways:

Applicable cases. Projects with only 03 interested investors meeting the project implementation requirements being invited to participate; (ii) hi-tech projects and new technology projects according to Article 38 of the PPP Law.

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Investor selection process for competitive negotiation (Article 36 of Decree 35).

  • Shortlisting: according to (a) the result of interest survey of investors pursuant to Article 25.4 of Decree 35 for projects with only 03 investors being invited to participate and (b) the results of the profile assessment on competence, experience, the results of competitive negotiation rounds for hi-tech projects and new technology projects pursuant to Article 43, 44, 45 and 46 of Decree 35;
  • Preparing for investor selection: (a) for projects with only 03 investors being invited, the preparation, appraisal and approval of bidding documents shall be based on the results of negotiations and discussions about the contents of the bidding documents pursuant to Article 48 of Decree 35, (b) for hi-tech projects and new technology projects, the preparation, appraisal and approval of dossiers shall be pursuant to Article 49 and Article 50 of Decree 35;

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  • Organizing investor selection: including inviting bids, issuing, clarifying, revising bidding documents; extending the bid submission time and preparing, submitting, receiving, managing, amending and withdrawing bids shall be pursuant to Article 51 and Article 52 of Decree 35;
  • Evaluating bids: (a) for projects with only 03 investors being invited, the opening and evaluation of technical proposals and financial-commercial proposals shall comply with Articles 53, 54, 55, 56, 57, 58 and 59 of Decree 35 and (b) for hi-tech projects and new technology projects, the opening of bids and evaluation of bids shall be pursuant to Articles 60 and Article 61 of Decree 35;

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  • Submitting, appraising, approving and publicizing the results of investor selection shall satisfy the provisions of Articles 62 and 63 of Decree 35;
  • Negotiating, finalizing and concluding PPP project contracts, publicizing information about PPP project contracts shall be pursuant to Articles 64 and 65 of Decree 35.

Reported by Pham Tran Bao Khanh/Nguyen Tuan Phat (Legal Department PECC3)

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