Lawyer in Vietnam Dr. Oliver Massmann Public-Private Partnerships in Infrastructure Vietnam

1. Lawyer in Vietnam Dr. Oliver Massmann Public-Private Partnerships in Infrastructure Vietnam
The World Bank Is Asking Duane Morris on Vietnam’s Public-Private Partnerships in Infrastructure –
Here are Our Answers:
Case study assumptions
• The Private Partner (the Project Company) is a Special Purpose Vehicle (SPV) established by a
consortium of privately owned firms, which operate in Vietnam.
• The procuring authority is a national/federal authority in Vietnam that is planning to procure the
design, build, finance (full or partial), operation and maintenance of a national/federal
infrastructure project in the transportation sector (i.e. national highway). The project has an
estimated investment value of USD 150 million funded with availability payments and/or user
fees.
• To this end, the procuring authority initiates a public call for tenders/ invitation for bids/ request
for proposal/ request for qualification, following a competitive PPP procurement procedure.
A. Regulatory and Institutional Framework for PPPs
Q: Does the regulatory framework in your country allow procuring PPPs?
A: Yes, the basic principles and general regulations on PPPs are set out under Decree No. 35/2021/ND-
CP of the Government dated 29 March 2021 on elaborating some articles of the Law on Investment in
the PPP form (the "PPP Decree").
Following the PPP Decree, Ministries formulated and issued the following guidelines:
(i) Circular No. 09/2021/TT-BKHDT dated 16 November 2021 guiding the investor selection for the
implementation of PPP projects and investment projects using land ("Circular No. 09").;
(ii) Circular No. 15/2016/TT-BKHDT was issued on September 19, 2016 guiding the preparation of
prequalification dossiers, bidding dossiers for selection of investors implementing investment project in
the form of public-private partnership ("Circular No. 15");
(iii) Circular No. 06/2021/TT-BKHDT dated 30 September 2021 on detailing the collection, submission
and management of expenses on registration, information publication, contractor and investor selection
on the national procurement system and the procurement newspaper ("Circular 06");
(iv) Circular No. 08/2022/TT-BTC dated 09 February 2022 providing the management and use of
receivables and payables in the process of investor selection ("Circular 08");
(v) Circular No. 22/2022/TT-BGTVT dated 31 August 2022 providing for guidance on certain contents of
the pre-feasibility study reports, feasibility study reports of PPP investment projects, BOT contracts in
the transportation sector ("Circular 22");
In addition to the PPP Decree and its guidelines, general laws (e.g. the Investment Law on PPP No.
64/2020/QH14 dated 18 June 2020, the Law on Public Investment No. 39/2019/QH14 dated 13 June
2019, the Law on Public Investment No. 39/2019/QH14 dated 13 June 2019; the Construction Law No.
50/2014/QH13 dated 18 June 2014 and the Law on management and use of public property No.
15/2017/QH14 dated 21 June, 2017) continue to be applicable to PPP projects.

2. The aforementioned regulations shall constitute the basis for the analysis that follows. Particular
questions may be based on additional regulations if they are only applicable to those particular data
points.
Q. For which sectors is the above-mentioned regulatory framework applicable?
A: The above-mentioned regulatory framework is applicable for the following sectors:
• Transportation: Article 2.1 of the PPP Decree expressly states PPPs are applicable for investment
projects in the transport sector with total investment capital of over VND1,500 billion.
• Water, Supply, Sewerage, Solid Waste Management, and Irrigation: Article 2.3 of the PPP Decree
expressly states PPPs are applicable for investment projects in irrigation field; clean water
supply, drainage and wastewater treatment; waste treatment with total investment capital of
over VND 200 billion.
• Energy generation/transmission and distribution: Article 2.2 of the PPP Decree expressly states
PPPs are applicable for investment projects in renewable energy; coal thermal power; gas
thermal power (including liquefied natural gas - LNG); nuclear power; grid with total investment
capital of over VND1,500 billion (for renewable energy projects, the total investment capital
must be over VND 500 billion).
• ICT: Article 2.6 of the PPP Decree expressly states PPPs are applicable for IT infrastructure with
total investment capital of over VND200 billion.
• Social infrastructure, including hospitals, education, prisons, housing, etc: Articles 2.4 and 2.5 of
the PPP Decree expressly states PPPs are applicable for investment projects in healthcare and
education- training sectors.
Q: Besides national defense and other matters of national security, does the regulatory framework
explicitly prohibits or restricts PPPs in any sectors?
A: No, the regulatory framework does not prohibit or restrict PPPs in Transportation, Water, Supply,
Sewerage, Solid Waste Management, and Irrigation, Energy generation/transmission and distribution,
ICT, Social infrastructure, including hospitals, education, prisons, housing, etc.
Q: Please identify the PPP procuring authorities in Vietnam and provide their website(s) (if available):
A: The procuring entities are ministries, ministry-level agencies and provincial people's committees. Line
ministries and provincial people’s committee could also designate their procuring authorities to relevant
agencies under their management.
The most likely procuring authority given the case study assumptions would be either the Ministry of
Planning and Investment: ppp.mpi.gov.vn or the Ministry of Transportation: ppp.mt.gov.vn
Q: Is there a specialized government entity(ies) that facilitates the PPP program (PPP Unit)?
A: Yes, the State Appraising Committee, the inter-ministerial Appraising Committee, the local Appraising
Committee. These committees would be established for each investment projects depending on their
nature, based on Articles 7-9 of the PPP Decree.
Q: What are the main responsibilities of the agencies?
A: PPP regulation and policy guidance; PPP capacity building for other public authorities; PPP promotion
among the public and/or private sectors in national and international forums; Identification and
selection of PPP projects from the pipeline; Oversight of PPP implementation; Appraisal of pre-feasibility

3. study reports and feasibility study reports of PPP projects according to Article 6.1 of the Law on PPP
Investment.
Q: Additionally, is there a central project development fund (support mechanism) for project
preparation?
A: No.
B. Preparation of PPPs
Q: Does the Ministry of Finance or Central Budgetary Authority approve the PPP project before
launching the procurement process?
A: No.
Q: Does the Ministry of Finance or Central Budgetary Authority approve the PPP project before signing
the PPP contract?
A: No.
Q: Does the Ministry of Finance (or government more broadly) have a specific system of:
(Q1) Budgeting for PPP projects (e.g, including the estimated total cost of the PPP project over the life of
the project in the budget cycle)?
A: Yes, according to Articles 19-20 of the PPP Decree.
(Q2) Reporting liabilities (explicit and implicit, direct and contingent) arising from PPPs (e.g., disclosing
information about the public sector commitments on the PPP project)?
A: Yes, Article 6 of the PPP Decree.
(Q3) Account in liabilities (explicit and implicit, direct and contingent) arising from PPPs (e.g, the public
sector commitments to the PPP project are recorded in the national accounts)?
Same as above.
Q: Please indicate what best describes the regulation?
A: Yes, Vietnam Accounting Standards, which are built based on international accounting standards
(IAS/IFRS).
These standards are adopted via a set of decisions and circulars issued by the Ministry of Finance over
the 2001-2005 period. The general standards are included in Decision No. 165/2002/QD-BTC dated 31
December 2002 of the Ministry of Finance.
Q: Does the Ministry of Finance (or government more broadly) disclose PPP liabilities (explicit and
implicit, direct and contingent) on an online platform/database?
A: No.
Q: Besides the procuring authority and the Ministry of Finance or Central Budgetary Authority, do(es)
any other authority(ies) approve the PPP project before launching the procurement process (e.g.
Cabinet, Cabinet Committee, Parliament, Supreme Audit Office, etc.)?

4. A: Yes, National Assembly, Prime Minister, Ministries, ministry-level agencies and provincial People's
Council pursuant to Article 1, Decision No. 784/QD-TTg, Article 12 of the Law on PPP Investment.
Q: Besides the procuring authority and the Ministry of Finance or Central Budgetary Authority, does any
other authority(ies) approve the PPP project before signing the PPP contract?
A: No.
Q: Please describe the best way your government ensures that PPP projects are consistent with other
government public priorities (e.g., in the context of a national public investment system, multi-year
perspective plans, medium-term budgetary framework).
A: The regulatory framework provides for the inclusion of PPPs in the national public investment
system/medium-term budgetary framework and details a specific procedure to ensure the consistency
of PPPs with other public investment priorities. Pursuant to Article 7.1 of the Law on PPP Investment,
the management of investment in the form of PPP must be consistent with related national socio-
economic development strategies, plans and other planning schemes in accordance with law on
planning.
According to Article 14.2(a) of the Law on PPP Investment, one of the bases to prepare the pre-
feasibility study report is the national socio-economic development strategies, plans, and relevant
master plans in accordance with the law on planning.
Q: Which assessments are conducted when identifying and preparing a PPP in order to inform the
decision to proceed with it?
A: The assessments are:
• Socio-economic analysis (cost-benefit analysis of the socio-economic impact of the PPP project):
Pursuant to Article 14.3 of the Law on PPP Investment, this analysis is required as part of the
pre-feasibility study report for appraisal and in-principle approval of the PPP project.
• Fiscal Affordability assessment, including the identification of the required long-term public
commitments (explicit and implicit, direct and contingent liabilities): Pursuant to Article 14.3 of
the Law on PPP Investment, this analysis is required as part of the pre-feasibility study report for
appraisal and in-principle approval of the PPP project.
• Risk identification, allocation and assessment (risk matrix): Pursuant to Article 19.2 of the Law
on PPP Investment, this analysis is required as part of the feasibility study report for appraisal
and approval of the PPP project.
• Comparative assessment to evaluate wether a PPP is the best option when compared to other
procurement alternatives (i.e., value for money analysis, public sector comparator): Pursuant to
Article 14.3 of the Law on PPP Investment, this analysis is required as part of the pre-feasibility
study report for appraisal and in-principle of the PPP project.
• Financial viability: Pursuant to Article 19.2 of the Law on PPP Investment, this analysis is
required as part of the feasibility study report for appraisal and approval of the PPP project.
• Market sounding/assessment (Including the potential from contractors and capacity in the
market for the contract): Pursuant to Article 19.2 of the Law on PPP Investment, this analysis is
required as part of the feasibility study report for appraisal and approval of the PPP project.
• Environmental impact assessment: Pursuant to Article 14.3 of the Law on PPP Investment, this
analysis is required as part of the pre-feasibility study report for appraisal and in-principle

5. approval of the PPP project. Pursuant to Article 19.2 of the Law on PPP Investment, this analysis
is required as part of the feasibility study report for appraisal and approval of the PPP project.
• Environmental impact assessment (Consultation process with affected communities explicitly
included in the environmental impact assessment): Article 33.2 of the 2020 Law on
Environmental Protection requires that investors are obliged to consult with regulatory
agencies, organizations and communities that are directly affected by the project.
• Social impact assessment
Q: Does the procuring authority include the assessments in the request for proposals and/or tender
documents?
A: No.
Q: Are the assessments published online?
A: No.
Q: Are tender/bidding documents made available online?
A: Yes, pursuant to Article 8 of the Public Procurement Law at http://muasamcong.mpi.gov.vn/
Q: Do the tender documents include a draft PPP contract?
A: Yes, according to Article 49.2(g) of Decree No. 35/2021/ND-CP.
Q: Have standardized PPP model contracts and/or transaction documents been developed?
A: Yes, standard documents for PPPs are included in Circular No. 10/2022/TT-BKHDT, Circular No.
08/2022/TT-BKHDT, Circular No. 10/2015/TT-BKHDT and other circulars of ministries guiding the
implementation of PPPs in respective fields.
Q: Does the procuring authority/responsible government entity have a role in either providing or
facilitating any requirements?
A: No.
Q: Does the procuring authority/responsible government entity have a role in either providing or
facilitating any requirements for obtaining the possession of required land?
A: Yes, the provincial People's Committee is responsible for site clearance and for completing
procedures for allocation or lease of land to implement the project in accordance with the law on land,
the project contract and related contracts. However, the provincial people's committee is not
necessarily the procuring entity (Article 93.4 of the PPP Decree).
Q: Does the procuring authority/responsible government entity have a role in either providing or
facilitating any requirements for obtaining the required right of way?
A: Yes, the provincial People's Committee is responsible for site clearance and for completing
procedures for allocation or lease of land to implement the project in accordance with the law on land,
the project contract and related contracts. However, the provincial people's committee is not
necessarily the procuring entity (Article 93.4 of the PPP Decree).
C. Procurement/Tendering of PPPs
Q: How can the required qualifications of the bid evaluation committee members be best described?

6. A: The membership of the bid evaluation committee is specified and/or its members are required to
meet detailed qualifications. This is regulated under Article 4, Circular No. 19/2015/TT-BKHDT.
Q: Does the procuring authority issue an invitation for bids/ tender notice for the PPP project?
A: Yes, Article 9 of PPP Decree provides that the following information must be published on the
national procurement system:
a) Information on the decision on investment policy and the decision on approval of the PPP project;
b) Information on investor selection includes: notice of invitation for pre-qualification, notice of
invitation for bid, short list, result of investor selection;
c) Information about the selected investor, PPP project enterprise;
d) Main contents of a PPP project contract include: total investment; capital structure in the project;
type of contract; project implementation duration; prices and charges for public products and services;
form and place of collection of prices and fees (if any) and other necessary information;
dd) The final settlement value of public investment capital in a PPP project in case public investment
capital is used;
e) Legal documents on PPP investment;
g) Investor database;
h) Information on settlement of complaints, denunciations, recommendations, handling of violations of
the law on investment under the PPP method.
The information specified at Points a, b, c and d must be published on the website (if any) of the
competent authority.
The above information is encouraged to be published on other mass media.
Q: Is the public procurement notice published online?
A: Yes, Ministry of Planning and Investment National Bidding System at:
http://muasamcong.mpi.gov.vn/
Q: Are foreign companies subject to any restrictions when participating in the bidding process?
A: The foreign bidders must satisfy the following conditions according to Article 29 of the Law on PPP
Investment:
• Having an establishment and operation registration certificate issued by a competent authority
of the country or territory in which that investor is operating;
• Carrying out the independent financial accounting regime; ensuring competitive investor
selection;
• Not in the dissolution process; not falling into the case of insolvency in accordance with the law
on bankruptcy;
• Not subject to any prohibition against participation in PPP investment activities;
• Enterprises with 100% state-owned capital must enter into partnership with private sector
investors to participate in the bidding process;

7. • Investors established under foreign laws must meet market access conditions when
participating in the process of selection of investors in projects in the relevant conditional
sectors and trades, subject to the provisions of the law on investment.
Q: Does the procuring authority grant the potential bidders a minimum period of time to submit their
bids?
A: Yes, pursuant to Articles 31.6-31.8 of the PPP Decree.
For projects that apply competitive bidding competitive negotiation as prescribed in Clause 1 Article 38
of the Law on PPP Investment, the time limit for preparation of bids shall be 60 days for selection of
domestic investors or 90 days for selection of international investor from the first day on which the
bidding documents are issued to the bid closing date.
For projects that apply competitive negotiation as prescribed in Clause 2 and Clause 3 Article 38 of the
Law on PPP Investment:
a) The time limit for preparation of negotiation applications shall be 30 days for selection of domestic
investors or 45 days for selection of international investor from the first day on which the negotiation
documents is issued to the bid closing date.
b) The time limit for preparation of bidding documentation shall be 45 days for selection of domestic
investors or 60 days for selection of international investor from the first day on which the bidding
documents are issued to the bid closing date.
For projects that apply investor appointment as prescribed in Point a Clause 1 Article 39 of the Law on
PPP Investment, the time limit for preparation of bids shall be 45 days for selection of domestic
investors or 60 days for selection of international investor from the first day on which the bidding
documents are issued to the bid closing date.
Q: What are the procurement procedures available and/or set as default for PPP contracts?
A: Available procurement procedures depends on the bidding types, in particular:
• Open competitive tendering/bidding: Article 36 of PPP Decree.
• Competitive tendering/bidding with prequalification stage (Restricted tendering): Article 36 of
PPP Decree.
• Multi-stage tendering/bidding (with shortlisting of final candidate(s)).
• Competitive dialogue: Article 36 of PPP Decree.
• Direct negotiation: Article 37 of PPP Decree.
• Other. Article 40 of the Law on PPP Investment. In special cases, the Prime Minister will decide
the methods of investor selection.
Q: Does the regulatory framework restrict direct negotiations as an available option to certain
exceptional conditions and circumstances (including cases of single source providers or applicable to a
certain threshold)?
A: Yes, Article 38 of the Law on PPP Investment provides the following cases where direct negotiation is
applied:

8. 1. There are no more than 03 investors who meet the project implementation requirements being
invited to attend;
2. High-tech application projects on the list of high-tech prioritized for investment in accordance with
the law on high technology;
3. New technology application projects in accordance with the law on technology transfer.
Q: Do the tender documents detail the procedure of the procurement process, providing the same
information to all the bidders?
A: Yes, pursuant to Articles 51.1 and 51.2 of the PPP Decree; Article 3 of Circular No. 09/2021/TT-BKHDT.
Q: Do the tender documents unambiguously specify the qualification requirements (or the
prequalification requirements when applicable) making them available to all potential bidders as part of
the tender notice/ invitation for bids?
A: Yes, pursuant to Articles 49.2 and 49.3 of the PPP Decree; Article 3 of Circular No. 09/2021/TT-BKHDT.
Q: Are there any parameters/limits to the qualification requirements to ensure that they do not unduly
restrict competition of qualified bidders?
A: No.
Q: Can potential bidders/tenderers submit questions to clarify the public procurement notice and/or the
bidding/tender documents?
A: Yes, pursuant to Articles 39.2(c), 51.4, 54 of the PPP Decree.
Q: Can the bidders also suggest innovations to improve the tender documents or procurement
approach, including for example the provision of value engineering and/or technologically neutral
options?
A: No.
Q: Is there a timeframe for the procuring authority to address questions and clarifications by bidders?
A: No.
Q: Notwithstanding confidential information pertaining to the bidders, does the procuring authority
disclose those questions and clarifications to all potential bidders?
A: Yes, pursuant to Articles 39.2(c) and 51.4 of the PPP Decree.
Q: Does the procuring authority extend the proposal submission deadline due to the modifications
introduced in the bidding/tender documents?
A: Yes, Article 89.4(b) of the PPP Decree regulates that if a letter of amendment is not sent within this
time-limit, the party calling for tenders must extend tender closing time by a corresponding number of
days so as to ensure compliance with the time-limits for sending such letter amending the pre-
qualification invitation documents, tender invitation documents.
Q: Besides questions and clarifications, can the procuring authority conduct a pre-bid conference?
A: Yes, pursuant to Articles 38.2(c) and 51.4 of the PPP Decree.

9. Q: Notwithstanding confidential information pertaining to the bidders, does the procuring authority
disclose the response to the queries raised by the bidders in the pre-bid conference to all bidders?
A: Yes, pursuant to Articles 38.2(c) and 51.4 of the PPP Decree.
Q: Does the procuring authority require the bidders to prepare and submit a financial model with their
proposals bids?
A: Yes, according to Article 59.2(c) of the PPP Decree, Article 4 of Decree No. 28/2021/ND-CP.
Q: Does the procuring authority evaluate the bids/tenders strictly and solely in accordance with the
evaluation criteria stated in the bidding/tender documents?
A: Yes, pursuant to Article 42 of the Law on PPP Investment, Articles 50, 53, 56, 59 of the PPP Decree.
Q: Can criteria other than price (non-price attributes) be used when evaluating the tenders/bids of a PPP
contract?
A: Yes, pursuant to Articles 50, 53, 56, 59 of the PPP Decree.
Tenders/bids of a PPP contract will be evaluated in terms of investor capacity, experience; technical
aspects and financial - commercial aspects.
Q: If criteria other than price are used, do they have to be justified, objective and quantifiable?
A: Yes, pursuant to Articles 50, 53, 56, 59 of the PPP Decree.
Q: When price is used as one of the evaluation criteria, does the procuring authority provide a cost
estimate?
A: Yes.
Q: In the case where only one proposal is submitted, what best describes the way the procuring
authority deals with them?
A: The procuring authority considers sole proposal valid as long as it meets the conditions outlined in the
tender documents pursuant to Articles 83.2(a), 83.3(a) and 84.4(a) of the PPP Decree.
The procuring authority does not award a PPP contract if only one proposal is submitted pursuant to
Articles 83.29b), 83.3(b) and 84.4(b) of the PPP Decree.
Q: Does the procuring authority publish the contract award notice?
A: Yes, pursuant to Article 9.1(b) of the Law on PPP Investment.
The contract award notice must be published on the national procurement system, the relevant
competent authority's website. Publication on other means of public media is encouraged.
Q: Is the contract award notice published online?
A: Yes, at www.muasamcong.mpi.gov.vn
Q: Does the procuring authority notify all the bidders individually about the result of the PPP
tendering/bidding process?
A: Yes, pursuant to Article 31.11 of the PPP Decree.

10. Q: Does the notification of the result of the PPP procurement process include the grounds for the
selection of the winning bid/tender?
A: Yes, pursuant to Article 63.2(b) of the PPP Decree.
Q: Does the procuring authority provide bidders/tenderers with the option of holding a debriefing
meeting to discuss why their bid/tender was not selected?
A: No.
Q: Is there a standstill (or pause) period after the contract award and before the signing of the contract
in order to allow aggrieved unsuccessful bidders to challenge the award decision?
A: No.
Q: Does the regulatory framework restrict material negotiations (for example price or scope) with the
winning bidder between the award and the signature of the PPP contract?
A: Yes, pursuant to Article 64.4.5 of the PPP Decree.
Q: Does the regulatory framework allow for complaint review mechanisms pertaining to the PPP
bidding/tendering process?
A: Yes, pursuant to Articles 95-97 of the Law on PPP Investment; Chapter IV, Section 9, Subsection 2 of
the PPP Decree.
Q: Is there a timeframe in which decisions on complaints are issued?
A: Yes.
1. The process of settling complaints on issues during the investor selection process is carried out as
follows:
a) The investor sends a written complaint to the procuring entity from the time the incident occurs to
before the announcement of the investor selection result;
b) The procuring entity must send a written complaint to the investor within 07 working days from the
date of receipt of the investor's written complaint;
c) In case the procuring entity does not have a document to resolve the complaint or the investor
disagrees with the result of the resolution of the complaint, the investor has the right to send a written
complaint to the competent authority within 05 working days from the date of expiration of the reply or
the date of receipt of the written resolution of the complaint from the procuring entity;
d) The competent authority must send a written complaint to the investor within 07 working days from
the date of receipt of the investor's written complaint.
2. The process of settling complaints on investor selection results is carried out as follows:
a) The investor sends a written complaint to the procuring entity within 10 days from the date of receipt
of the notice of investor selection result;
b) The procuring entity must send a written complaint to the investor within 15 days from the date of
receipt of the investor's written complaint;

11. c) If the procuring entity does not have a document to resolve the protest or the investor disagrees with
the result of the resolution of the complaint, the investor has the right to send a written complaint at
the same time to the competent authority and the standing office of the Advisory Council for Settlement
of Complaints within 5 working days from the date of expiration of the reply or the date of receipt of the
written request for resolution of complaints from the procuring entity.
d) Upon receipt of a written complaint, the Advisory Council for Settlement of Complaints has the right
to request the investor, procuring entity and relevant agencies to provide information for consideration
and report in writing to the competent agency on the plan and contents of the complaint reply within 30
days from the date of receipt of the investor's written complaint;
dd) In case of necessity, the Advisory Council for Settlement of Complaints shall, based on the investor's
written complaint, request the competent authority to consider and suspend the bid. If approved,
within 05 working days from the date of receipt of the written request of the Advisory Council to settle
the complaint, the competent authority shall issue a written notice of bid suspension. The bid
suspension document must be sent to the procuring entity or investor within 05 working days from the
date of issuing the written notice of bid suspension. The bid suspension period is counted from the date
the procuring entity receives the notice of suspension until the competent authority issues a document
to settle the protest;
e) The competent authority shall issue a decision on settlement of complaints on investor selection
results within 10 days from the date of receipt of the written opinion of the Advisory Council for
Settlement of Complaints.
The regulatory provision is Article 96 of the Law on PPP Investment.
Q: Are decisions subject to appeal?
A: Yes, Article 96 of the Law on PPP Investment.
Q: Is the original complaint and/or the appeal reviewed resolved by an independent administrative
authority (other than the procuring authority or the courts)?
A: Yes, according to Article 96 of the Law on PPP Investment. The approving authority is the Central
Advisory Council.
Q: Does the procuring authority publish the PPP contract? (notwithstanding the protection of
commercially sensitive information)
A: Yes, pursuant to Article 65.2 of the PPP Decree.
Q: Which elements does the publication include?
A: The elements of the publication are:
• A summary of the PPP contract (available online and by request or in the official gazette):
muasamcong.mpi.gov.vn pursuant to Article 65.2 of the PPP Decree.
• Any subsequent amendment made to the PPP contract (available online and by request or in the
official gazette): muasamcong.mpi.gov.vn pursuant to Article 65.3 of the PPP Decree.
D. Contract Management
Q: Does the procuring authority or contract management authority establish a system to manage the
PPP contract (i.e., attributing responsibilities or establishing specific management tools)?

12. A: Yes, pursuant to Articles 59 and 66 of the Law on PPP Investment, Articles 87 and 88 of the PPP
Decree.
Q: Which tools does it include?
A: Establishment of a PPP contract management team (included in the PPP management system):
Articles 83--84, 86-87 of the Law on PPP Investment, Articles 87-88 of the PPP Decree.
Q: What best describes the required qualifications of the PPP contract management team members?
A: The PPP contract management team members are not required to meet any specific qualifications.
Q: Does the procuring or contract management authority establish a monitoring and evaluation system
of the construction of the PPP project (i.e., system for tracking progress of construction, monitoring and
evaluation of performance, etc.)?
A: Yes, pursuant to Articles 83-87 of the Law on PPP Investment.
Q: Is the PPP contract construction performance information made available to the public (e.g. by
request or published in the official gazette/bulletin board)?
A: No.
Q: Does the procuring or contract management authority establish a monitoring and evaluation system
of the PPP contract implementation after construction?
A: Yes, according to Articles 83-87 of the Law on PPP Investment.
Q: Which tools does it include?
A: The tools are:
• Payments are linked to performance: Article 66.3 of the Law on PPP Investment.
• The procuring or contract management authority can abate (reduce) payments for non-
performance of operating opligations under the PPP contract: Article 66.3 of the Law on PPP
Investment.
• The private partner must provide the procuring or contract management authority with periodic
operational and financial data: Article 20 of Decree 28/2021/ND-CP.
• The procuring or contract management authority must periodically gather information on the
performance of the PPP contract: Articles 82.4, 94.7 of the Law on PPP Investment
Articles 19, 23 of the PPP Decree.
Q: Is there an economic/technical regulator to oversee the implementation of PPP contracts?
A: No.
Q: Are foreign companies restricted from repatriating the income resulting from the operation of a PPP
project?
A: No.
Q: Does the regulatory framework (including standard contractual clauses) expressly regulate changes in
the ownership structure (i.e. stakeholder composition) of the private partner and/or assignment of the
PPP contract?

13. A: Yes, pursuant to Articles 47.1(k) and 54 of the Law on PPP Investment.
Q: Which circumstances are specifically regulated?
A: Any change in the private partner during an initial period (e.g. construction and first two years of
commercial operation) in Article 54.2 of the Law on PPP Investment.
Changes of ownership/contract assignment, at any time during the contract, must preserve the same
technical qualifications as the original operator.
Q: Does the regulatory framework (including standard contractual clauses) expressly regulate the
modification or renegotiation of the PPP contract (once the contract is signed)?
A: Yes, pursuant to Article 50 of the Law on PPP Investment.
Q: Is an approval from a government authority, other than the procuring authority, required?
A: Yes, according to Article 50.3 of the Law on PPP Investment: in case the contract amendment results
in a change in the target, location, scale and type of the PPP project contract, an increase in the total
investment by 10% or more, an increase in the value of state capital in the PPP project after the reserve
is used up, the procedures for adjustment of investment policies must be carried out before signing an
annex to the contract with respect to the amended contents.
Q: Which circumstances are specifically regulated?
• A change in the scope and/or object of the contract according to Article 50 of the Law on PPP
Investment.
• A change in the financial and/or economic balance of the contract according to Article 50 of the
Law on PPP Investment.
• A change in the duration of the contract according to Article 50 of the Law on PPP Investment.
• A change in the agreed price or tariff or annuity payments according to Article 50 of the Law on
PPP Investment.
Q: Is there a threshold for which a new tendering process is required?
A: No.
Q: Can the procuring/contract management authority modify a PPP contract unilaterally?
A: No.
Q: Does the regulatory framework (including standard contractual clauses) expressly address the
following circumstances that may occur during the life of the PPP contract?
A: Yes
• Force majeure according to Articles 47.1(d), 50.1(a) and 52.2(a) of the Law on PPP Investment.
• Material Adverse Government Action according to Articles 50.1(a), 51.39b)-(dd) of the Law on
PPP Investment
• Change in the Law according to Articles 51.3(d), 52.2(dd) of the Law on PPP Investment.
• Refinancing according to Article 52.2(c) of the Law on PPP Investment.
• Subcontracting and replacement of the subcontractors.

14. Q: Does the regulatory framework (including standard contractual clauses) allow for alternative dispute
resolution mechanisms in case of disputes arising from the implementation of PPP contracts?
A: Yes, according to Article 97 of the Law on PPP Investment.
Q: Is arbitration available as an option?
A: Yes. Domestic arbitration and international arbitration according to Article 97.4 of the Law on PPP
Investment.
Q: Are arbitration awards enforceable by local courts?
A: Yes, Articles 424-431 of the 2015 Civil Procedures Code.
Q: Are other Alternative Dispute Resolution (ADR) options available (including mediation or dispute
resolution boards)?
A: Yes, according to Article 97.1 of the Law on PPP Investment.
Q: Does the regulatory framework (including standard contractual clauses) allow for the lenders to take
control of the PPP project (lender step-in rights) if either the private partner defaults or if the PPP
contract is under threat of termination for failure to meet service obligations?
A: Yes.
Q: Which of the following options best describes the lender step-in right?
A: The regulatory framework expressly regulates the lender step-in rights. Lender step-in rights are
expressly regulated in Article 42 of the PPP Decree:
Article 42 of PPP Decree:
1. Lenders are entitled to take over or appoint a competent organization to take over a part or all of the
rights and obligations of investors, project company (hereinafter referred to as the take-over right) in
case the investor or project company fails to fulfill the obligations specified in the project contract or
loan agreement.
2. A written agreement on the take-over right of the project must be made between the lenders and the
competent State's authorities, or the contracting parties.
3. After taking over the project, the lender or the lender-appointed authorized organization must
implement all of the corresponding obligations as an investor, project business as prescribed in the
project contract and agreement on the project take-over right.
Q: Does the regulatory framework (including standard contractual clauses) expressly address the
grounds for termination of a PPP contract?
A: Yes, Article 52.2 of the Law on PPP Investment.
Q: Does the regulatory framework (including standard contractual clauses) also addresses the
consequences for the termination of the PPP contract?
A: No.
E. Unsolicited Proposals
Q: Are unsolicited proposals allowed in Vietnam (PPP)?

15. A: Explicitly allowed by the legal framework according to Section 2, Chapter II of the Law on PPP
Investment.
Q: Does the procuring authority conduct an assessment to evaluate unsolicited proposals?
A: Yes, according to Articles 22 & 28 of the PPP Decree.
Q: What best describes how the procuring authority ensures that unsolicited proposals are consistent
with existing government priorities?
A: The procuring authority follows a specific procedure to ensure the consistency of PPPs with other
government investment priorities according to Article 27 of the Law on PPP Investment, Articles 22, 28
of the PPP Decree.
Q: Does the procuring authority initiate a competitive PPP procurement procedure when proceeding
with the unsolicited proposal?
A: No.
Q: Does the procuring authority grant a minimum period of time to additional prospective bidders
(besides the proponent) to prepare their proposals?
A: No.
Q: Does the procuring authority use any of the following incentive mechanisms to reward/compensate
the submission of unsolicited proposals?
A: No.
F. Additional Information
Q: Do you have experience working on infrastructure (transportation, energy and/or water) PPP
contracts?
A: Yes.
Q: What are the main areas of improvement that will enhance the participation of the private sector in
PPP projects in your country?
A: Better enforceability of the regulations; more efficient and transparent procurement process; higher
return to investors.
Q: Please rate the extent to which, in your country, the PPP framework is an impediment to private
sector’s participation in PPPs:
A: Moderate obstacle.
***
Please do not hesitate to contact Dr. Oliver Massmann under omassmann@duanemorris.com if you
have any questions or want to know more details on the above. Dr. Oliver Massmann is the General
Director of Duane Morris Vietnam LLC.