Mechanism to remove difficulties for loss-making BOT traffic projects

There are 10 groups of issues in the Draft Decree detailing the removal of obstacles for BOT traffic projects that the Ministry of Finance has requested the drafting agency to supplement and clarify before submitting to the Government for approval.

Fair to all applicable subjects

The sense of responsibility can be seen in Official Dispatch No. 12835/BTC-PTHT that the Ministry of Finance has just sent to the Ministry of Construction to provide comments on the Draft Decree detailing the removal of obstacles for BOT traffic projects. There are up to 10 groups of issues raised by the Ministry of Finance and all of them are contents that will help this Decree, when issued, to be more feasible.

Previously, in the dossier requesting opinions from relevant ministries, branches and localities, the Ministry of Construction has drafted a Decree detailing the removal of obstacles for BOT traffic projects, including 13 articles and 3 chapters. Chapter I provides general provisions; Chapter II provides for handling obstacles to revenue reduction of BOT traffic projects signed before January 1, 2021; Chapter III provides for the termination of BOT traffic project contracts signed before January 1, 2021.

Regarding the scope of regulation, in Official Dispatch No. 7356/BXD-CDBVN, the Ministry of Construction determined that the Decree will detail the Law on Investment under the public-private partnership (PPP) method on handling difficulties of BOT projects investing in transport infrastructure signed before January 1, 2021, including Article 99a of the PPP Law on handling difficulties in reducing revenue of BOT projects in the road sector; Article 52 of the PPP Law on early termination of contracts for BOT transport projects.

However, the Draft Decree stipulates in the direction of expanding the scope of regulation on early termination of BOT contracts for BOT transport projects signed before January 1, 2021 (all transport sectors, including roads, railways, waterways, maritime, and aviation).

Therefore, the Ministry of Finance requests the Ministry of Construction to clarify the compliance with the provisions of the PPP Law on expanding the scope of the Draft Decree to BOT contracts terminated before the deadline for all BOT transport projects signed before January 1, 2021.

“At the same time, it should be noted that the Decree, when issued, must ensure feasibility and fairness for all applicable subjects (avoiding discrimination against BOT contracts signed before January 1, 2021 and BOT contracts signed after January 1, 2021), avoiding group interests, waste, and loss of State resources,” the Ministry of Finance stated in Official Dispatch No. 12835.

Need more specific instructions

Another important content that the Ministry of Finance requested the agency in charge of drafting the Draft Decree to clarify and review for appropriate regulation is the rate of sharing the reduced revenue.

Specifically, Clause 1, Article 6 of the Draft Decree stipulates that for BOT transport projects signed before January 1, 2021, the State will share the revenue reduction at a rate determined not exceeding 75% of the average ratio between the reduced revenue and the revenue in the project's financial plan in the last 3 years; in which, the reduced revenue is determined by the revenue in the financial plan minus the actual revenue.

However, Clause 2, Article 82, Law No. 64/2020/QH14, amended and supplemented by Law No. 90/2025/QH15 stipulates: “When actual revenue is lower than the revenue in the financial plan in the PPP project contract with a ratio within the framework from below 90% to below 75%, the State shares with the investor and PPP project enterprise 50% of the difference between the revenue in the financial plan and the actual revenue. The competent authority shall specifically determine the ratio of sharing the reduced revenue during the negotiation process with the investor and project enterprise”.

Thus, the State's sharing ratio between PPP projects applied according to the provisions of PPP Law No. 64/2020/QH15, amended and supplemented in Clause 30, Article 2, Law No. 90/2025/QH15, is different from the proposal to apply to BOT road projects signing BOT contracts before January 1, 2021 mentioned in the Draft Decree.

The Ministry of Finance requested the Ministry of Construction to study and consider adding specific guidelines on the level of "reducing the rate of return on equity" and "reducing loan interest rates" (in Clause 1, Article 7, Draft Decree) to ensure fairness and feasibility in the negotiation process.

Source: https://baodautu.vn/co-che-go-kho-cho-cac-du-an-bot-giao-thong-thua-lo-d368088.html