Circular 23/2015/tt-Bct: Prescribing The Order And Procedure Of Project Investment In The Form Of Thermal Power Construction Contract-Business-Transfer

Original Language Title: Thông tư 23/2015/TT-BCT: Quy định trình tự, thủ tục đầu tư dự án nhà máy nhiệt điện theo hình thức hợp đồng Xây dựng - Kinh doanh - Chuyển giao

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MINISTRY OF COMMERCE
Number: 23 /2015/TT-BCT
THE SOCIALIST REPUBLIC OF VIETNAM.
Independence-Freedom-Happiness
Hanoi, July 13, 2015

IT ' S SMART

Sequencing procedure, the investment procedure for thermal power plant project In the form of a contract

X the build up - K Business. - - Thank you. o

____________________

Base of Protocol 95 /2012/NĐ-CP November 12, 2012 the Government regulates the functions, duties, powers, and organizational structure of the Ministry of Commerce;

Base of Protocol 15 /2015/NĐ-CP February 14, 2015 of the Government on Investment in the form of Public Investment;

On the recommendation of the Attorney General of the Energy Directorate,

The Minister of Public Works of the Ministry of Commerce issued the order, the procedure of investing the thermal power plant in the form of a contract for construction-Business-Transfer.

Chapter I

COMMON RULES

What? 1. The tuning range and subject apply

1. This information regulates the sequence, the procedure for the investment of the thermal power plant in the form of a Building-Business-Business-Transfer contract (later called BOT) on the territory of Vietnam.

2. The applicable subject of this Smart consists of organizations, individuals who participate in activities related to the investment of the thermal power plant project in the form of a BOT contract.

What? 2. Explain the word

1. BOT contract is the contract signed between the Ministry of Industry and the owner of the BOT to build the thermal power plant on Vietnam territory; after the completion of the plant, the owner is entitled to the factory business for a certain deadline; expires, the investment owner. Ministry Of Commerce.

2. Power plant BOT project (later called the NMNE BOT Project) was the investment thermal power plant project in the form of a BOT contract.

3. BOT investor are organizations, individuals with official text expressing interest, participating in the development of the investment thermal power plant project in the form of a BOT contract.

4. BOT Investment owner is the BOT investor who has been charged with the state agency with the authority over the development of the NMNE BOT Project.

5. BOT Business is the business founded by BOT Investment Master to implement the NMNE BOT Project.

6. EPC contractor is the contractor to implement the design package, provide equipment, supplies and build the NMNE Project BOT Project.

7 National Power Development Planning. (the following call is QHĐLQG) which is the electrical engineering scheme approved by the Prime Minister.

8. Memorandum of development of the NMNE BOT Project (the following call is MOU) which is a signed version between the BOT investor and the Ministry of Industry.

9. Feasibility study report (later known as FS) is the documentation of the research content of the necessity, feasibility, and effectiveness of the NMNE Project BOT Project.

10. Principle contract. (the following PA) is the agreement signed between the Energy Directorate and the BOT Investment Owner.

11. Electricity purchase contract (later called PPA) is a contract signed between the BOT Enterprise and the Vietnam Electric Corporation.

12. Land lease. (later called LLA) is the contract signed between the BOT Enterprise and the local jurisdiction where the NMNE BOT Project is located.

13. Coal supply contract (the following call for the CSA) is the contract signed between the BOT Enterprise and the Coal Provider.

14. Coal shipping contract (the following call is CTA) is the contract signed between the BOT Enterprise and Coal Transport.

15. Gas supply contract (the following called GSA) is the contract signed between the BOT Enterprise and the Gas Provider.

Chapter II

THE CHOICE OF BOTS INVESTING BOT AND THE NEGOTIATION ORGANIZATION

PROJECT DOCUMENTS

Item 1

BOT INVESTMENT CHOICE

What? 3. The selection of the owner of the BOT is made in accordance with the rule of law on bidding.

What? 4. International bidding applies to the following cases:

1. The projects under the category of QHLQG are prescribed by the Prime Minister to international bidding;

2. The projects under the portfolio of QHLQG have yet to determine the investment holder, which is from two BOT investors to the registration of participation that will be decided by the Prime Minister to form the choice of BOT Chair.

What? 5. Only the BOT Investment Owner applies to the following cases:

1. The projects under the category of QHLQG are appointed by the Prime Minister to the Chairman of BOT;

2. The project belongs to QHLQG ' s portfolio only one BOT investor registered to participate and is approved by the Prime Minister to the chair of only BOT Investment;

3. The project proposed by the BOT investor, which is not under the category of QHLQG and approved by the Prime Minister.

Item 2

NEGOTIATING PROJECT DOCUMENTS

What? 6. The memo memo and project deployment plan

1. During the twenty (20) days of work since the Prime Minister's Day with the writing of BOT Investment Development (BOT) development of the NMNE Project, the Energy Directorate sends the MOU draft and the Chief Investment BOT is prepared to negotiate, signing the MOU. MOU content included:

a) The legal basis;

b) General description of the NMNE BOT Project;

c) The role, responsibility of the owner of BOT;

d) the role, responsibility of the Ministry of Commerce;

The overall development of the NMNE BOT Project;

e) The validity of the MOU;

) The responsibility of the BOT Investment Owner to the project development costs; the cost payment of FS, the cost of the FS project; the cost of hiring the Legal Consultated Legal Consultalization in the process of negotiating and deploying the project.

2. In the fifteen (15) days of work since receiving the MOU draft, the BOT investor must have an opinion on the draft and the MOU negotiation plan.

3. In the fifteen (15) days of work since the date of receiving official opinions by the text of the owner of the BOT, the Energy Directorate organizes the MOU. The MOU negotiation process is not extended for more than 30 days.

After the unification of the MOU, the General Energy Directorate of the Ministry of Commerce passed to organize the MOU.

4. The signing of the MOU is made between the Ministry of Commerce representative with the legitimate representative of the Investment Owner.

5. During the thirty (30) days of the day since the day of the MOU signing, the BOT investor must plan a detailed implementation of the project that sends the General Energy General to review, unified.

6. During the fifteen (15) days of work since the date of receiving a detailed plan, the Energy Directorate has a written opinion.

7. The detailed plan content implementation of the project includes:

a) Set and approved the Planning of the Center for the Building of Power (if available): Planning Day; the date of the planning approval;

b) Set and approve FS, including: FS Date Date; FS approval date;

c) The plan to negotiate the BOT Contract and related documents, including: the PA negotiation day; the PA date; the scheduled date of the first round negotiation; the scheduled date of the first round negotiation; the date of the scheduled start of the second round; the expected date of the second round negotiation; scheduled negotiation schedule: PPA, LLA, Design Package Contract, provision of equipment, supplies, and construction of the project and fuel supply contracts; the date of the signing of the investment agreement; the filing date for the Certificate of Investment Registration; the signing date. official BOT Contract Documentation;

d) Financial times;

Launch and construction, including: Official launch date of project; day of commercial operation of each machine; the day of commercial operation of the entire factory.

What? 7. Set up, appraisal and approve the Center for Building Power Center

1. The establishment, appraisal and approval of the Center for Electric Power Building (later known as TTL Planning) is implemented as stipulated in the Digital Information System. 43 /2014/TT-BCT November 19, 2014 of the Ministry of Commerce regulates the content, sequence, procedure, appraisal, and approval of the TTL Planning.

2. The cost of planning, the appraisal, the TTL Planning appraisal is deployed from the source of funding that prepares the project to invest the project.

What? 8. Set, appraisal and approve the feasibility study report

1. During the twelve (12) months of the month since the day of the MOU, the Chairman of the BOT has to present the General Energy Bureau of the FS that is accompanied by the opinions of the ministries, the relevant sector, and the Provincial People's Committee, the central city-central city where the project is located.

The Project FS project must be set up by the Department of Electrical Consulting which has a power-based license in the field of electrical power plant consulting, which has a FS-based experience that projects thermal power plants with a comparable scale or upward.

2. Content of the Project FS project is carried out by regulation at Article 25 Digital Protocol. 15 /2015/NĐ-CP February 14, 2015 of the Government on Investment in the form of public-private partnerships and related legal documents.

3. Preappraisal FS projects are implemented by regulation at Article 26 Digital Protocol. 15 /2015/NĐ-CP February 14, 2015 of the Government on Investment in the form of public-private partnerships and related legal documents.

4. The Ministry of Commerce only approved the FS Profile when it was received the Decision to approve the Environmental impact assessment report by the Ministry of Natural Resources and Environment.

5. The cost of planning, the appraisal and appraisal of the FS Profile provided by the owner of BOT.

What? 9. Legal counsel assisting the Ministry of Trade in Negotiation of Project Documents.

1. During the thirty (30) days since the day of the MOU, the Directorate of Energy proposes the method of choice of legal counsel supporting the State agency with the authority of the Minister of Commerce decided to organize execution.

2. Legal counsel:

a) Support of the Ministry of Commerce of the draft and negotiation of the details of the BOT Contract, Government Security (later known as GGU), Confirification and approval of the Ministry of Commerce (later known as MOIT's A&C);

b) Complete of the project contract (including: Contract for BOT, GGU, A&C, PPA, LLA and CSA or GSA) ensure legal, accuracy and synchrony of content, the sentence is ready for the signing;

c) Other jobs are regulated in the Advisory Contract.

3. The Energy Directorate conducts the choice of Legal Consultated and the Minister of Commerce approx along with the cost of the cost to the Legal Consultated Advisory Board.

4. The cost of hiring legal counsel supports the Ministry of Trade in talks with the project documents deployed from the state budget. The case of a state budget is not yet timely, the Ministry of Commerce and the Chairman is responsible for the agreement on the cost of the law to hire legal counsel to ensure the progress of the project development.

What? 10. interdisciplinary Working Group

1. In the fifteen (15) days of work since the day of the MOU signing, the Department of Labor Department Energy Corporation established the interdisciplinary Working Group.

2. The composition of the interdisciplinary Working Group includes:

a) Head of the group and some members of the Ministry of Commerce;

b) Members of the ministries, the industry includes: Plan and Investment, Justice, Finance, State Bank, Provincial People's Committee, the Central Committee of the Central Committee, which houses the project BOT NMNE, Vietnam Electric Corporation (EVN), Coal and Mineral Industries Group Vietnam (TKV) (for domestic coal use), Vietnam National Oil Corporation (PVN) (for its domestic gas use project).

3. Main task of the interdisciplinary Working Group:

a) Unity of negotiation plan with BOT investor;

b) Organization and participation in BOT Contract negotiations, GGU and MOIT's A &C;

c) Participation in solving problems arise during the negotiation process execution process.

4. Service assignments and the work method of the interdisciplinary Working Group:

a) The chief of the interdisciplinary workgroup is the presiding over the negotiation;

b) Members of the ministries, industry, and localities are responsible for the content related to the field of management and support of the presiding officer in accordance with the assigned task function;

c) The interdisciplinary Working Group works in a dual-term mechanism.

5. Cost of operation:

The operating costs of the interdisciplinary Working Group are deployed from the state budget.

6. The operating time of the interdisciplinary Working Group depends on the requirement for the implementation of the BOT NMNE project and by the Ministry of Commerce.

What? 11. Negotiation

1. The PA negotiation, the BOT Contract, GGU and MOIT's A&C are only conducted when responding to the following conditions:

a) The FS profile was approved by the Ministry of Commerce;

b) The Ministry of Commerce has selected legal counsel;

c) The time of starting negotiations is consistent with the progress stated in the MOU.

2. The Energy Directorate that coordinates the negotiation of the project documents with the BOT Investment Owner includes:

a) Group of interdisciplinary Working Groups: BOT Contract Negotiation, GGU and MOlT's A&C.

b) EVN organizes the PPA negotiation and the Confirification and approval text of the EVN.

The PPA was passed only after the Energy Directorate had a written opinion on the contract to provide long-term fuel for the project and the result of selecting the project's EPC contractor.

c) TKV organizes the CSA negotiation and the confirmation and approval of TKV (for the domestic coal use project).

d) PVN organized the GSA negotiation and the Confirification and approval text of the PVN (for the domestic gas use project).

The local area has a project to hold the LLA negotiations and the Local's Office of Confirification and Approval.

EVN, TKV, PVN and local must unify the negotiating plan with BOT investment owner and Energy General Report.

3. The owner of BOT is responsible for negotiating parallel projects (including: BOT contract, GGU, MOIT's A &C; PPA; CTA; CTA; GSA va LLA) with Vietnamese partners involved in ensuring the progress of the project.

4. PA negotiation, BOT Contract, GGU and MOIT's A&C:

a) PA negotiation

When eligible at this 1 Article, during the fifteen (15) days of work, the Energy Directorate sends the PA draft for the owner of BOT.

The PA draft includes the following main content: Basic definitions, the duration of the contract, the overall progress of the project, the date of operation required, the applicable law, the dispute resolution, the dispute resolution mechanism, the risk division, the tax regime, the price structure, the land lease, and the lease. provide fuel, the basic principles of GGU.

In the thirty (30) days from the date of receiving the PA draft, the BOT investor must have an opinion on the draft content to send the General Energy General.

The PA negotiation is only conducted after fifteen (15) working days since the date of receiving the opinions of the BOT investor.

The Directorate of Energy and Chairman of the BOT held the PA after the two sides had agreed upon the detailed content of the PA.

b) Negotiation of BOT, GGU and MOIT's A&C

The negotiation process is divided into 2 rounds, each consisting of 3 sessions, each of which is maximum in three (03) days.

Each round of negotiations only ended when negotiated through all the terms of the contract. Ununified content, leaving the next round of negotiations.

Prior to each round of talks, the Energy Directorate sent the draft BOT, GGU and MOIT's A&C to the BOT investment owner.

In the sixties (60) days from the date of receiving the draft, the BOT Chair must send the General Energy Directorate General of Energy to the draft BOT draft, GGU and MOIT's A&C. The negotiation is conducted only after thirty (30) days from the date of receiving the opinions of the owner of BOT.

At the end of each round of negotiations, the Ministry of Commerce sent the Ministry's opinion, the relevant sector, to serve as the basis for the next round of negotiations.

The interdisciplinary Working Group continues to negotiate with BOT Investment Chair on the opinions of the ministries, the industry to fintech the draft BOT, GGU and MOIT's A&C.

5. End of 2 rounds of negotiations, the Ministry of Industry reported that the Prime Minister's results were reached and the unincorporated content, which required the direction of the Prime Minister's direction.

The interdisciplinary workgroup will continue to negotiate with the Chairman of BOT under the direction of the Prime Minister. The negotiation only ended when the Vietnamese side and the BOT Investment Chairman united all the content of the project documents.

6. During the ten (10) days of work since the end of the negotiation, the Ministry of Commerce presented the Prime Minister through to hold the signing of the investment agreement with the owner of BOT.

What? 12. Complete the project documents and sign the investment agreement.

1. After the BOT Contract, GGU and MOIT's A&C have been unified by the two parties, the Legal Consultated Legal Counsel must have a confirmation text of the legalization, accuracy of the content, the sentence in the Project documents to the Ministry of Commerce signing the investment agreement. with BOT Investment.

2. The owner of the BOT must coordinate with the stakeholders, fining the draft, the signing of other project documents such as: PPA, CSA (or GSA), CTA, LLA and reports the Ministry of Industry signed off.

3. During the thirty (30) days from the day the two sides united all the contents of the BOT and GGU contracts, the Ministry of Commerce signed the investment agreement with BOT Investment Chair on the BGT Contract, GGU and MOIT's A&C.

Chapter III

LEVEL OF INVESTMENT CERTIFICATE,

SIGNING PROJECT DOCUMENTS

What? 13. Level Certificate of Investment Registration

1. In the thirty (30) days from the date of the signing of the investment agreement, the BOT Investment Master must submit the Planning and Investment File to grant the Investment Registration Certificate.

2. Profile, the procedure for granting a Certificate of Investment Registration is made in accordance with regulation at Article 40 Digital Protocol. 15 /2015/NĐ-CP February 14, 2015 of the Government on Investment in the form of Public Investment.

3. The owner of the BOT is responsible for coordinating with the Vietnamese stakeholders to address the opinions at the request of the Ministry of Planning and Investment.

What? 14. Sign up the BOT Contract and Project Documents

1. In the thirty (30) days from the date of receiving the Investment Registration Certificate of the Ministry of Planning and Investment, the BOT investor must establish the BOT Enterprise and have a complete responsibility of the additional content required in the First Registration Certificate. To sign the official documentation of the project.

2. The Energy Directorate organizes the official ceremony of the project documents between the owner of BOT and the BOT Enterprise with the stakeholders, including:

a) Sign BOT and GGU with the Ministry of Industry;

b) Sign PPA with EVN;

c) Sign CSA with TKV (for the domestic coal use project);

d) To sign GSA with PVN (for the domestic gas use project);

Sign a LLA with the local, where the project is.

3. The BOT business is responsible for the filing of the Justice Department ' s legal opinion by regulations at the Digital Protocol. 51 /2015/NĐ-CP 26 May 2015 of the Government on the Level of Legal Opinions.

What? 15. Resolve problems arise during the financial arrangements process.

The Energy Directorate coordinated with the BOT Investment Owner addressing issues that arise during the financial arrangements process. The case is beyond jurisdiction, reports the Minister of Commerce, the Prime Minister review, the decision.

What? 16. Level A&C

The Ministry of Commerce, the Provincial People's Committee, the central city's central city where the project and EVN grant the A&C to the BOT Business under the provisions of the BOT, LLA and PPA contracts.

Chapter IV

CHECK OUT THE PROJECT.

What? 17. Monitoring the project contract and the quality of the work

1. The monitoring of the implementation of the project implementation under regulation at Article 47 of the Digital Protocol 15 /2015/NĐ-CP in terms of investment in the form of justice and related legal documents.

2. The monitoring of the quality of the work done by regulation at Article 48 of the Digital Protocol 15 /2015/NĐ-CP February 14, 2015 of the Government on Investment in the form of the public and relevant legal documents.

3. The General Energy Directorate, in collaboration with the ministries, the relevant sector performing an experimental work test that takes the work into the prescribed use at the Digital Protocol. 15 /2013/NĐ-CP June 6, 2013, the Government is on the management of the quality of construction and related legal documents.

4. The Directorate of Energy oversees compliance with the obligations of the Investment Owner, the BOT Enterprise pursues to the project deployment and regulatory provisions at the BOT contract.

What? 18. Report Mode

1. Report

During the construction of the plant, the BOT Enterprise was responsible for reporting the month sent by the General Energy Directorate and the State Administration of the Authority to be involved in the May 05. The report content of the month includes:

a) The work progress has taken into account the time of reporting;

b) The problems exist and proposed, the petition (if any);

c) The plan is expected next month.

2. Quarter Report, 2014

The BOT business completed its quarterly report on 5 April, July, September; completed a year-on-year report on January 05 each year to the Office of Energy Administration and State Administration agencies.

3. Breakthrough Report

In the event of incident, natural disasters, fire or at the request of the State Agency for jurisdiction, the BOT Enterprise is responsible for sending timely reports of the Energy Directorate and the relevant authorities.

Chapter V.

EXECUTION CLAUSE

What? 19.

1. This message has been in effect since 1 September 2015.

2. The organizations, individuals taking part in activities related to the investment of electric power plant projects in the form of the BOT contract on the territory of Vietnam are responsible for this practice.

What? 20. The transition rule

1. The projects already and are deploying ahead of this date of this date are valid under regulation at Article 72 of the Digital Protocol. 15 /2015/NĐ-CP February 14, 2015 of the Government on Investment in the form of Public Works Partnership.

2. The MOU of the project to be signed prior to this date of this date is that the enforcement effect is not resigned by the provisions of this Information.

3. The PA of the project to be signed before this date of this date is that the enforced effect does not have to be resigned according to this Information.

What? 21. Organization to execute

1. The Energy Directorate has the responsibility to guide this message.

2. In the course of the execution, if there is a problem with problems, ministries, sectors, localities, BOT investors, BOT investors and related businesses send opinions on the Energy Directorate, Ministry of Commerce to be guided ./.

KT. MINISTER.
Chief.

(signed)

The United Nations.