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Investor selection for renewable energy projects by investor appointment under PPP Law and the Decree 35/2021/ND-CP guiding 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.

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

Applicable cases (Article 39.1 of the PPP Law).

  • (i) The projects shall meet the requirements on national defense, security, and state secret (prior to appointment of the investor, the Prime Minister’s approval shall be obtained upon consultation with the Ministry of National Defense and/or the Ministry of Public Security);
  • (ii) The projects immediately require to select a substitute investor according to Article 52.4 (a) of the PPP Law to ensure continuity during the project implementation.

Investor appointment process (Article 37 of Decree 35).

  • (i) For the projects shall meet the requirements on national defense, security, and state secret, the investor appointment shall follow the process aa below:
    • (a) Preparation for the investor appointment includes preparing, appraising and approving of bidding documents. The competent authority is responsible for determining the eligibility of investor as prescribed in Article 29 of the PPP Law and no requirements to satisfy the regulations on ensuring competitiveness specified in Article 29.1 (a) and Article 29.4 of Decree 35;
    • (b) Organizing investor appointment includes issuing bidding documents, preparing, submitting, receiving, managing, revising, withdrawing bids, opening bids,
    • (c) Evaluating bids,
    • (d) Submitting, appraising, approving and publicizing results of investor selection,
    • (e) Negotiating, finalizing, concluding PPP project contracts, publicizing contract information;
  • (ii) For the projects immediately require to select a substitute investor according to Article 52.4 (a) of PPP Law to ensure continuity during project implementation, investor selection process shall comply with Article 67 and Article 68 of Decree 35.

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

 

1. https://www.pecc3.com.vn/nhung-diem-dang-luu-y-ve-dau-tu-du-an-nang-luong-tai-tao-theo-nghi-dinh-35-2021-nd-cp-huong-dan-luat-dau-tu-theo-phuong-thuc-doi-tac-cong-tu/

2. https://www.pecc3.com.vn/lua-chon-nha-dau-tu-du-an-nang-luong-tai-tao-theo-hinh-thuc-dau-thau-rong-rai-theo-luat-ppp-va-nghi-dinh-35-2021-huong-dan-luat-ppp/

3. https://www.pecc3.com.vn/lua-chon-nha-dau-tu-du-an-nang-luong-tai-tao-theo-hinh-thuc-dam-phan-canh-tranh-theo-luat-ppp-va-nghi-dinh-35-2021-huong-dan-luat-ppp/.

4. https://www.pecc3.com.vn/lap-ho-so-moi-thau-theo-thong-tu-09-2021-huong-dan-lua-chon-nha-dau-tu-du-an-nang-luong-tai-tao-thuc-hien-du-an-ppp/

5. https://www.pecc3.com.vn/lua-chon-nha-dau-tu-du-an-nang-luong-tai-tao-theo-hinh-thuc-chi-dinh-nha-dau-tu-theo-luat-ppp-va-nghi-dinh-35-2021-huong-dan-luat-ppp/

Tổng hợp: Phạm Trần Bảo Khánh/Nguyễn Tuấn Phát (phòng Pháp chế PECC3)

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