Mr. Kim Phuong Nam's company (Vinh Phuc) is interested in a social housing project. He asked, is the Circular No. 09/2021/TT-BXD requiring detailed planning in the project area to serve the selection of project investors in the form of bidding, in accordance with the Law on Housing, the Law on Urban Planning and Decree No. 25/2020/ND-CP?

If the area is planned to arrange a social housing project (located on the lawful land of the enterprise) but there is a zoning plan, how to do it? Which agency or unit is responsible for making detailed planning at the scale of 1/500?

The Ministry of Construction responded to this issue as follows:

Regarding the selection of investors in social housing construction projects in the form of bidding: At Point b, Clause 7, Article 108 of Decree No. 31/2021/ND-CP dated March 26, 2021 of the Government regulating detailing and guiding the implementation of a number of articles of the Investment Law (amending and supplementing Clause 3, Article 16 of the Government's Decree No. 25/2020/ND-CP dated February 28, 2020 detailing the implementing a number of articles of the Law on Bidding on investor selection) has the following provisions:

"3. For projects specified at Point c, Clause 1, Article 1 of this Decree, based on specialized laws, ministries, ministerial-level agencies and government-attached agencies shall promulgate regulations or submit to the Prime Minister for promulgation regulations on formulation, approval and publication of the list of projects; methods and criteria for evaluation of bids, proposals and other contents (if any), ensuring assurance competitive, fair, transparent and economic goals, which include content".

Clause 7, Article 1 of Decree No. 49/2021/ND-CP dated April 1, 2021 of the Government amending and supplementing a number of articles of Decree No. 100/2015/ND-CP dated October 20, 2015 of the Government. The Government on social housing development and management has regulations: "The Ministry of Construction shall guide regulations on conditions and criteria for selecting investors in social housing investment projects".

In Clause 1, Article 3 of Circular No. 09/2021/TT-BXD dated August 16, 2021 of the Ministry of Construction guiding the implementation of a number of contents of Decree No. 100/2015/ND-CP dated October 20/ 2015 of the Government on development and management of social housing and Decree No. 49/2021/ND-CP dated April 1, 2021 of the Government amending and supplementing a number of articles of Decree No. 100/2015/ ND-CP has regulations:

"1. An investment project to build social housing must select an investor in the form of bidding and must satisfy the conditions specified in Clauses 2, 3, 5 and 6, Article 11 of Decree No. 25/ 2020/ND-CP dated February 28, 2020 of the Government detailing the implementation of a number of articles of the Bidding Law on investor selection (amended and supplemented in Clause 4, Article 108 of Decree No. 31/2021/ND-CP dated March 26, 2021 of the Government detailing and guiding the implementation of the Investment Law) and the following conditions:

a) Failing to use the capital sources specified in Clause 1, Article 53 of the Law on Housing to invest in the construction of works;

b) Not falling into the cases specified at Points c and d, Clause 2, Article 57 of the Law on Housing (except for the case specified in Clause 3, Article 8 of this Circular);

c) There has been a decision approving the investment policy of the project in accordance with the law on investment;

d) Having a detailed construction planning approved by a competent authority.

Thus, based on the above-mentioned legal provisions, the selection of investors in social housing construction projects in the form of bidding shall comply with the provisions of Circular No. 09/2021/TT-BXD dated 16 August 2021 of the Ministry of Construction is in accordance with the legal provisions on housing, bidding and investment.

Accordingly, one of the conditions for a social housing investment project to select an investor in the form of bidding is a detailed construction planning approved by a competent authority.

Choosing an investor in a social housing project for an enterprise with land use rights

At Point c, Clause 2, Article 57 of the Law on Housing stipulates: "In case an enterprise or cooperative has the lawful land use right, conforms to the housing construction planning, is eligible to act as an investor and have a need to build social housing, such enterprise or cooperative shall be assigned to act as the investor in the social housing construction project;".

Clause 7, Article 1 of Decree No. 49/2021/ND-CP stipulates: "For the case specified at Point c, Clause 2, Article 57 of the Law on Housing, the provisions of the investment law shall apply. Investors who register as investors in social housing projects must satisfy the conditions for having the function of real estate business as prescribed by the law on real estate business and in the written approval of investment policies and at the same time identify that investor as the investor in the social housing construction project;".

According to Article 7 of Circular No. 09/2021/TT-BXD: "1. For social housing construction investment projects specified at Point c, Clause 2, Article 57 of the Law on Housing, investors must register to do so. Investors in social housing construction investment projects must satisfy the conditions for having the function of real estate business in accordance with the provisions of the law on real estate business.

2. The competent authority shall approve the investment policy and at the same time approve the investor to implement the project as prescribed in Clause 5, Article 29 of Decree No. 31/2021/ND-CP for the selected investor in the social housing construction investment project as prescribed in Clause 1 of this Article".

Thus, the law on housing only stipulates cases where an enterprise has a lawful land use right, in accordance with the housing construction planning, and meets the conditions for having the function of real estate business in accordance with the provisions of law, the law on real estate business, the competent authority shall approve the investment policy and concurrently approve the investor to carry out the project to build social housing on that legal land area.

The formulation and approval of detailed planning at the scale of 1/500 shall comply with the provisions of the 2009 Law on Urban Planning (Clause 7, Article 19).

The approval of urban planning falls under the authority and responsibility of state agencies, complying with the provisions of the 2009 Law on Urban Planning and amended and supplemented in Law No. 35/2018/QH14.