CHỦ ĐẦU TƯ DỰ ÁN NHÀ Ở XÃ HỘI VẪN ĐƯỢC THAM GIA ĐẤU THẦU KHI CHƯA CÓ QUY HOẠCH CHI TIẾT XÂY DỰNG ĐƯỢ (2024)

Lawyer Than Trong Ly - Le Thị Dung - Le Thi An

With the orientation of further removing obstacles and promoting the development of the social housing market, and realizing the target of constructing at least one (01) million social housing (“Social Housing”) for the period 2021 – 2030, relevant regulations governing Social Housing have been improved. Specifically, on 28 April 2023, the Minister of Construction issued Circular 03/2023/TT-BXD (“Circular 03”) amending Article 3 of Circular 09/2021/TT-BXD (“Circular 09”) guiding the implementation of content pertaining to Social Housing development and management. Circular 03 shall take effect on 15 June 2023, expected to resolve present problems regarding detailed construction planning conditions, ensuring clarity and facilitating developers in biding Social Housing projects.

Accordingly, Circular 03 and Circular 09 set out the principles and conditions for selecting developers of Social Housing construction projects as follows:

1. Construction investment projects on Social Housing must select a developer via bidding under conditions specified in Clauses 2, 3, 5 and 6, Article 11 of Decree No. 25/2020/ND-CP, specifically:

i. The project is on the list of projects that need land expropriation as prescribed by land laws or located in a land area under the management of the State which is approved by the provincial People's Committee or the Management Board of economic zones to be allocated, leased to the approved investors;

ii. Under the housing development programs and plans in accordance with the law on housing; urban development programs (if any) in accordance with the law on urban development;

iii. Not eligible to organize an auction of land use rights in accordance with the law on land; an

iv. Not in the cases of contractor appointment when there is only one investor who is able to implement the project due to concerning intellectual property, trade secrets, technology or capital arrangement; and selection of contractors in particular and separate cases.

2. The project must not use state budget capital, national bonds, official development assistance funds, concessional loans from donors, and development investment credit fund of the State on the land area determined to erect Social Housing;

3. Not falling into the following cases:

i. In case an enterprise or cooperative has the lawful land use right, conformed to the housing construction planning, eligible to act as a developer, and wishes to build Social Housing then such enterprise or cooperative is assigned as the developer in the construction project of Social Housing;

ii. In case where the Social Housing is built to accommodate employees working in an industrial park, an industrial park infrastructure enterprise or a production enterprise in the industrial park or businesses with real estate business functions shall be assigned by the State to be the project developer (unless two or more investors jointly submit valid dossiers of application for the investment projects on Social Housing construction at the same location).

4. Having a detailed construction plan approved by a competent authority in accordance with law.

In case there is no approved detailed construction plan then such construction must be located in areas for which zoning planning has been approved, for areas requiring zoning planning, or general planning has been approved for areas that do not require zoning planning.

Simultaneously, the land area expected to implement the Social Housing project must have detailed planning approved by the competent authority based on the National Technical Regulations on construction planning, technical and social infrastructure conditions of said area in order to stipulate planned land use norms and related requirements on joining social and technical infrastructure.

It is notable that the fourth condition regarding the detailed construction planning supplemented by Circular 03 flexibly facilitates project developer in the absence of approved construction detailed planning on a case-by-case basis, allowing leniency and eliminating rigid regulations in Circular 09 which demand strict pursuant of "construction detailed regulations approved by competent authorities" to participate in the selection of bidding, thus creating contention between the prevailing regulations and restricting the participation of investors in bidding selection.

In special cases as prescribed in Article 14 of Decree No. 37/2010/ND-CP, Article 10 of Decree No. 44/2015/ND-CP, small-scale projects of less than 5 hectares (under 2 hectares for apartment housing projects) shall not require an approved detailed planning but it is mandatory under Circular 09. Thus, numerous localities seeking investment in Social Housing projects of less than 2 hectares are dumbfounded because of the aforementioned "legal contradiction".

In short, Circular 03 has addressed the limitation mentioned above, concretizing cases of detailed planning, zone planning or general planning for the sake of consistency and transparency in the implementation of legal regulations, ensuring the right of developers to participate in bidding.