Regulations on selecting investors to implement investment projects according to Vietnamese law

1. Select investors to implement investment projects

Pursuant to the provisions of Article 29 of the Law on Investment 2020, the regulations on selecting investors to implement specific investment projects are as follows:

(1) Investor selection is conducted through one of the following forms:

– Auction of land use rights according to the provisions of land law;

– Bidding to select investors according to the provisions of law on bidding;

– Approval of investors according to the provisions of Clauses 3 and 4 of this Article.

(2) The selection of investors to implement investment projects according to the provisions of Points a and b, Clause 1 of this Article is carried out after a, except in cases where the investment project is not subject to investment policy approval.

(3) In case an auction of land use rights is organized and only one person registers to participate or the auction fails according to the provisions of land law or in the case of a bidding organization that selects an investor but only one investor registers in accordance with the provisions of law on bidding, the competent authority shall carry out procedures to approve the investor when the investor meets the conditions prescribed by relevant laws.

(4) For investment projects subject to investment policy approval, the competent authority approves the investment policy and also approves the investor without auctioning land use rights or bidding to select investors in the following cases:

– Investors have the right to use land, except in cases where the State recovers land for defense and security purposes, or recovers land for socio-economic development for national and public interests according to the provisions of law and land;

– Investors receive transfers, capital contributions, or leases of agricultural land use rights to carry out non-agricultural production and business investment projects that are not subject to land recovery by the State according to the provisions of land law;

– Investors implementing investment projects in industrial parks and high-tech parks;

– Other cases not subject to auction or bidding according to the provisions of law.

2. Approve the investment policy and select investors

Pursuant to the provisions in Clause 2, Article 29 of Decree 31/2021/ND-CP stipulates:

– Auction of land use rights in case of land allocation or land lease to implement an investment project subject to auction of land use rights according to the provisions of land law and the land area expected to implement the investment project has been cleared. In this case, the agency approving the investment policy assigns the competent state authority to organize an auction of land use rights according to the provisions of land law to select investors to implement the project;

– Bidding to select investors for investment projects that fall into the case of bidding to select investors according to the provisions of the law on bidding, the law on socialization, and specialized laws and do not meet the conditions for auctioning land use rights as prescribed in Point a of this Clause. The agency approving the investment policy assigns the competent state authority to organize bidding to select investors to implement the project according to the provisions of law on bidding. The Decision approving the investment policy is also the Decision approving the List of investment projects according to the provisions of the law on bidding;

– For investment projects specified in Clause 4, Article 29 of the Investment Law and projects not falling into the cases specified in Points a and b of this Clause, the investment policy approval agency shall consider approving the investment policy at the same time as approving the investor to implement the project without auctioning land use rights or bidding to select investors as prescribed in Clause 5 of this Article.

3. Does the project request the state to allocate or lease land through auction or bidding and must carry out investment policy approval procedures from the Provincial People’s Committee?

Regarding the above question, according to Official Dispatch 2541/CV-TCT dated April 18, 2022 guiding some contents on implementing and implementing business investment projects according to the provisions of law, the answer is as follows:

– According to the provisions of Clause 2, Article 29 of the Investment Law, the selection of investors to implement projects according to the provisions of Points a and b, Clause 1 of this Article is carried out after approval of the investment policy, except in cases where the investment project is not subject to approval of the investment policy.

– According to the provisions of Clause 2, Article 29 of Decree No. 31/2021/ND-CP dated March 26, 2021 of the Government detailing and guiding the implementation of a number of articles of the Investment Law, for investment projects subject to investment policy approval specified in Articles 30, 31 and 32 of the Investment Law, the investment policy approval agency shall consider approval. Approve the investment policy and decide on the form of investor selection through auction of land use rights, bidding for investor selection or approval of the investment policy at the same time as approval of the investor.

– According to the provisions of Point a, Clause 1, Article 32 of the Investment Law, the Provincial People’s Committee approves the investment policy for investment projects that require the State to allocate or lease land not through auction, bidding or transfer. transfer, investment projects that request permission to change land use purposes.

Based on the above regulations, investment projects that request the State to allocate land, lease land through auction of land use rights, bidding to select investors that do not fall into the cases specified in Articles 30, 31 and Points b, c, d, Clause 1, Article 32 of the Investment Law do not have to carry out policy approval procedures. Invest before auctioning land use rights or bidding to select investors.