促進民間參與公共建設法

This Act is enacted to upgrade the level of public service, to expedite social economic development and to encourage private participation in infrastructure projects.

With regard to the promotion of the private participation in the infrastructure projects, this Act shall prevail. For such matters not specified herein, other relevant laws shall apply.

1The land required for the infrastructure project as referred to in this Chapter shall mean the land required for the whole plan for the project approved by the authority-in-charge, including the land needed for the infrastructure, the ancillary facilities, and the ancillary businesses.

2If the land for an infrastructure project as referred to in the preceding paragraph will be secured through expropriation by zone or section, the authority in charge of the project may, with the prior approval of the Executive Yuan, commission a private institution to draft an urban planning proposal and to handle the matters relating to the expropriation by zone or section.

3Where the operations of an ancillary business require the approval of any other relevant authority, the private institution shall apply for such approval.

4Income derived from the operations of an ancillary business under Paragraph 1 by the private institution shall be counted as the overall revenues of the infrastructure project.

1Where the land required for the infrastructure project involves any change in the urban planning, the authority-in-charge shall cooperate with the relevant authorities in charge of the urban planning to effect prompt changes in accordance with Article 27 of the Urban Planning Act. Where the land required for the infrastructure project involves any changes in the use of non-urban land, the authority-in-charge shall cooperate with the relevant authorities in charge of area planning to effect the relevant changes in accordance with the relevant area planning laws and regulations.

2Where environmental impact assessment, and soil and water conservation treatment and maintenance for the land required for a major infrastructure project are required in accordance with the law, the assessment, treatment and maintenance shall be reviewed in parallel, jointly or concurrently by the authorities concerned in accordance with the laws and regulations governing urban planning and regional planning.

1Where the land required for the infrastructure project is government-owned land, the authority-in-charge may, after completing the allocation process, set a fixed term to allow the use of the land by a private institution by means of lease, creation of superficies, trust, or paying royalties or rental for use of the land, without being subject to the restrictions under Article 25 of the Land Act, Article 28 of the National Property Act, or the regulations governing local governments’ management of government-owned property. Rental in connection with the lease of the land and the creation of superficies on the land mentioned above may be charged on favorable terms.

2Regulations governing favorable rental rates as referred to in the preceding paragraph shall be prescribed by the competent authority in conjunction with the authorities concerned.

3Where the best applicant as selected in accordance with this Act applies for development of a lot of odd government-owned land within the scope of the land for an infrastructure project in accordance with Subparagraph 6 of Paragraph 1 of Article 8, and the authority in charge of the relevant infrastructure project determines that sale of the land to the applicant is necessary for a policy, the authority in charge of selling government-owned land may assign the land to the applicant, without being subject to Article 25 of the Land Act or regulations governing local governments’ management of government-owned property.

4Any assignment or sale of government-owned land may be cancelled, on the grounds that no concession agreement is signed within a specified period.

1Where the land required for the infrastructure project is privately owned, the authority-in-charge or the private institution concerned shall negotiate with the land owner to purchase the land at the arm's length price in the market. If an agreement on purchase of the land cannot be reached and the land is required for a major infrastructure project planned by the government, the authority-in-charge may expropriate such land in accordance with applicable laws.

2If the land subject to expropriation by the authority-in-charge as referred to in the preceding paragraph is urgently needed for the use of an enterprise of national defense, transportation, or water conservancy in public safety, the authority-in-charge may directly expropriate such land in accordance with applicable laws, bypassing the price negotiation process required by the preceding paragraph.

3The authority-in-charge may state in the expropriation plan that the land so expropriated will be used by private institution for development, building and/or operation purposes by means of joint development, commissioned development, cooperative operation, lease, creation of superficies, paying royalties or rental for use of the land, without being subject to the restrictions under Article 25 of the Land Act, Article 28 of the National Property Act, or the regulations governing local governments' management of government-owned property.

4Where the land for an infrastructure project has been acquired through expropriation prior to the promulgation of this Act, the land may be provided to a private institution for development, building or operation in accordance with the preceding paragraph, without being subject to the restrictions under Article 25 of the Land Act, Article 28 of the National Property Act, or the regulations governing local governments' management of government-owned property.

1Where due to the character of a particular infrastructure project, there is a necessity to expedite the acquisition of the land required for any of the major infrastructure projects referred to in the preceding article, the authority-in-charge may coordinate with the relevant authorities in charge of the management of the government-owned land or the government-owned enterprises owning such land for the sale or the transfer of such land, so that the development plan may be formulated and the land concerned may be developed and processed. In addition, a certain portion of the land and buildings so developed shall be made available for retrieval by the uncompensated owners of the expropriated land as an offset of the monetary compensation that they are entitled to.

2The development or processing of the government-owned land as referred to in the preceding paragraph shall not be subject to the restrictions under Article 25 of the Land Act, Article 28 of the National Property Act, or the regulations of the local government governing the management of the government-owned property. The retrieval of the land and buildings by the owners of the expropriated land shall not be subject to the restrictions under Article 7 of the National Property Act or Article 23 of the Budget Act.

3The amount of the compensation for the land expropriated and the value of the land and buildings to be retrieved by the land owners after development of the land as referred to in Paragraph 1 shall be determined on the same basis. When applying for the retrieval of the land and buildings as mentioned above, the land owner shall, during the period of the public announcement of the land expropriation, submit the relevant supportive documents together with a written undertaking addressed to the relevant municipal or county (city) governments undertaking not to receive monetary compensation. When the application is submitted to and approved by the authority-in-charge, the land owner concerned shall be deemed to have been compensated for the land expropriated.

1Where an infrastructure to be built by a private institution needs to pass through over or under any government- or privately owned land, unless otherwise stipulated by other laws, the private institution hereunder shall negotiate with the relevant authority in charge of the management of the government-owned land or the owner of the private land, as the case may be, for creation of superficies on the needed area. If such an agreement cannot be reached on government-owned land, the private institution may apply to the authority-in-charge, which will forward the application to the Executive Yuan for a final decision, without being subject to the restrictions under Article 25 of the Land Act. If such an agreement cannot be reached on a part of privately owned land, the government may acquire the superficies on such land mutatis mutandis in accordance with the regulations governing expropriation of land, and then lease such land to the private institution for use for favorable rental to be determined mutatis mutandis in accordance with Paragraphs 1 and 2, Article 15.

2In the event that the land as referred to in the preceding paragraph becomes unsuitable for proper use because it is traversed by routes of the infrastructure project, the land owners may, from the date of the construction until one year after the commencement of the operations of the infrastructure, apply to the authority-in-charge for expropriation of the ownership of such land, and the authority-in-charge shall not reject such application. The compensation for the land so expropriated shall be decided in accordance with Article 16 and shall be given to the relevant owners after deduction of the compensation receivable by the owners for the superficies created. The land costs increased as a result thereof shall be included in the costs of the infrastructure project.

3The regulations governing the procedures for use of the space over or under the land, the scope of such use, the demarcation of the boundaries, the creation of superficies, the land expropriation, the compensation for expropriation, registration and review of such use as referred to in the preceding two paragraphs shall be prescribed by the central authorities in charge of the relevant industries in conjunction with the Ministry of the Interior.

1With regard to the land required for the infrastructure project and to be expropriated by zone or section, the authority-in-charge may consult with the authority in charge of expropriation by zone or section to effect the expropriation by zone or section in accordance with applicable laws, and shall announce its decision to implement urban planning and to proceed with the land development within one year after expiration of the notice period of such expropriation, without being subject to the restrictions under Article 52 of the Urban Planning Act.

2The land within the scope of the zone or section to be expropriated in accordance with the preceding paragraph, after being mapped out and put in order, shall be handled in the following manners and in accordance with relevant laws and regulations governing expropriation by zone or section:

31. The transportation land for routes, yards/stations, highway interchanges, service areas, bridges and tunnels, and related ancillary facilities shall be registered as state, municipality, or county (city) owned land without any consideration; provided, however, that the title of the land for mass rapid transit systems shall be subject to the provisions under the Mass Rapid Transit Act.

42. The land for the transit area, the harbors and related facilities, and the major tour-site and recreation facilities shall be assigned, at the price of the development costs, to the authority-in-charge or the authority which requires the land.

53. Other land suitable for construction shall be owned by the authority-in-charge and the relevant municipal or county (city) government(s) in proportion to the development costs shared by them.

The use period for the land, of which the ownership or the superficies is expropriated in accordance with Articles 16 and 18 hereof, shall be determined in accordance with the deadline approved for the project concerned. In case the authority in charge fails to use the land in accordance with the deadline approved for the project concerned, the original land owners may, within five (5) years from the day following the expiration of the deadline approved for the project concerned, apply with the relevant municipal or county (city) governments to purchase back the land previously expropriated at the original expropriation price.

1In respect of the land required for any of the major infrastructure projects and the scope of the expropriation by zone or section under Article 19 hereof, the authority-in-charge may, as it may deem necessary and upon approval of its superior authority, notify the municipal or county (city) government where the land is located to make, either concurrently or separately, public announcement(s) prohibiting the following:

21.Transfer of, division of, or creation of encumbrance on, the land.

32.Construction, expansion or reconstruction of buildings on, or excavation of soil or gravel from, or changing the contours of, the land.

4The prohibition period referred to in the preceding paragraph shall not exceed two (2) years.

1To maintain the building and operation safety of the major infrastructure project, the relevant authorities-in-charge may consult with the local municipal or county (city) government(s) to survey and demarcate the restricted areas adjacent to the infrastructure project concerned, and to make a public announcement prohibiting and restricting the construction or erection of the government and/or privately owned buildings and advertising structures within such restricted areas, without being subject to the regulations of the use/zoning control for the urban planning land or the use/zoning control for the non-urban land. With regard to the buildings, the advertising structures and other obstacles which are under construction or already in existence within such restricted areas and which may impede the building or the operation safety of the infrastructure project concerned, the authority-in-charge may consult with the relevant local authorities in charge of construction to set a time limit for modification or removal thereof by the owner in due course. Failure on the part of the owner to comply within the given time limit will cause a compulsory removal thereof; provided, however, that the owner shall be entitled to reasonable compensation. If the owner objects to the amount of the compensation, the case shall be referred to the superior competent authority for a final decision. The compensation thereof shall be included into the costs of the infrastructure project concerned.

2The regulations governing the construction prohibition and restrictions as referred to in the preceding paragraph shall be prescribed by the competent authority in conjunction with the Ministry of Interior.

1Where a private institution hereunder needs to make a site survey, exploration, or to perform engineering work or maintenance work on the government and/or privately owned land or buildings, it may, after obtaining approval of the authority-in-charge and giving a thirty (30) days prior notice to the owner, the possessor, the user or the administrator of such government and/or privately owned land or buildings, have access to or use such land or buildings. The owner, the possessor, the user or the administrator of such land or buildings shall not refuse to provide such access or use. Notwithstanding the above, in case of emergency where a delay is likely to jeopardize major public interest, the private institution may enter or use such land or buildings without following the procedures mentioned above.

2When the private institution hereunder enters or uses the privately owned land or buildings in accordance with the preceding paragraph, it shall invite the local police to attend the scene.

3If any damages or losses are caused as a result of the entry or use of the land or buildings under the first paragraph, reasonable compensation for such damages or losses incurred shall be given. If there is any dispute on the amount of such compensation and such a dispute cannot be settled though amicable negotiations of the parties, the case shall be referred to the authority-in-charge for a final decision. The compensation thereof shall be included into the costs of the infrastructure project concerned.

1In making use of the government and/or privately owned land or buildings pursuant to the preceding article, if it is necessary to destroy or dismantle the buildings or other works on the land in full or in part, the private institution concerned shall report the case to the authority-in-charge for consent first, and then the authority-in-charge shall consult with the relevant local authorities in charge of construction to notify the owner, the possessor or the user thereof to effect such destruction or dismantling within the given period. Failure on the part of the owner to comply within the given period or in case of emergency where a delay is likely to jeopardize major public interest, the authority-in-charge may forthwith, either by itself or entrust the local relevant authorities in charge of construction to, enforce the compulsory destruction or dismantlement.

2Reasonable compensation shall be made for the destruction and dismantlement made under the preceding paragraph and for the losses and damages caused from the destruction or dismantlement thereof. If there is any dispute on the amount of such compensation and such a dispute cannot be settled though amicable negotiations of the parties, the case shall be referred to the authority-in-charge for decision. The compensation thereof shall be included into the costs of the infrastructure project.

A private institution may, if necessary for the performance of the construction work, request the authority-in-charge to coordinate with the relevant administering authorities for the use by the private institution of a river, ditch, culvert, dike, road, park and other land for public use.

1Where a private institution plans to build an infrastructure project above or underneath a city road, highway, railroad, or other transportation systems or public facilities, it shall obtain a prior approval from the relevant authorities in charge of such facilities. If co-installation or co-construction is required, the authority-in-charge shall first coordinate with, and obtain prior consents from, the relevant authorities in charge of such facilities. Then, the proposed co-installation or co-construction work can be proceeded with.

2If the private institution has acted in accordance with the preceding paragraph but cannot obtain the consents from the relevant authorities, the authority-in-charge shall request the competent authority to conduct necessary coordination. Upon the failure of such coordination, the authority-in-charge may report, with reasons, the case to the Executive Yuan for a final decision.

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In case of any private donation to the government of any land required for an infrastructure project and relevant facilities, the authority-in-charge may grant award to the donor.

1If the authority in charge of an infrastructure project determines that a private institution cannot fully self-finance its investment in the infrastructure project even if other incentives under this Act are applicable, the authority-in-charge may, for the insufficiently self-financed portion, subsidize part of the interest on the loan needed by the private institution or grant a subsidy, depending on the operating performance, and stipulate such subsidy in the concession agreement.

2If an authority-in-charge conducts an infrastructure project in accordance with the preceding paragraph, the authority-in-charge shall, prior to working on the project, submit the construction plan, the proposals for the relevant subsidies, and the financial plan to the Executive Yuan or the competent local government for approval.

3The subsidies under Paragraph 1 shall be handled in accordance with the relevant budgeting procedures.

The authority-in-charge may, depending on the financing needed for infrastructure projects, negotiate with financial institutions or special funds for provision of medium- or long-term loans to the relevant private institutions, provided that where the loan guarantees or other measures provided by the authority-in-charge carry contingent liabilities, such guarantees and measures are subject to the review and approval of the relevant civil representative bodies.

Where a financial institution extends credit to a private institution for use in a major transportation infrastructure project to support a government policy, and obtains the approval of the Financial Supervisory Commission (hereinafter referred to as the FSC) for such credit, the line of such credit shall not be subject to the restrictions under Articles 33-3, 38, and 72-2 of the Banking Act.

Where any foreign corporate financial institution participates in the syndication of loans to a private institution hereunder, such foreign financial institution shall have the same ability as a domestic company to enjoy the rights and to assume the obligations arising from the financing.

A private institution participating in the infrastructure project hereunder may offer new shares to the public, without being subject to the restrictions under Subparagraph 1, Article 270 of the Company Act; however, if the private institution has incurred losses in two consecutive years or more, a settlement plan thereof shall be submitted and the relevant information shall be fully disclosed.

A private institution which has become a public offering company according to law may issue specific use corporate bonds to raise the funds required for the infrastructure project concerned, without being subject to the restrictions under Article 247; Subparagraph 2, Article 249 and Subparagraph 2, Article 250 of the Company Act; provided, however, that the total issued amount shall be subject to the consent of the authority in charge of the securities after consultation with the central authorities in charge of the relevant industries.

If, during the building or operation of an infrastructure project, the private institution concerned sustains material damage as a result of a natural disaster, the authority-in-charge shall join the FSC and the relevant competent authorities in negotiating with financial institutions or special funds for extending serious natural disaster recovery loans to the private institution.

1A private institution participating in a major infrastructure project may be exempted from profit-seeking enterprise income tax for a maximum period of five (5) years from the year in which taxable income is derived after the infrastructure begins operations.

2For a major infrastructure project, the private institution as referred to in the preceding paragraph may, within four (4) years from the year in which taxable income is derived after the infrastructure project begins operations, elect at its sole discretion to defer the commencement date of the tax exemption period, provided that the maximum period of such deferral is three (3) years, and the commencement date of such deferred tax-exemption period is the first day of a fiscal year.

3The scope and the period of the tax exemption as referred to in Paragraph 1, and the authority granting the approval, the deadline and the procedure for application, the implementation period, supplemental tax payment, and other relevant matters shall be prescribed by the competent authority in conjunction with the central authorities in charge of the relevant industries.

1A private institution participating in a major infrastructure project may credit five percent (5%) to twenty percent (20%) of the following expenditures on the project against the profit-seeking enterprise income tax payable by it for the then current year. If the amount of the business income tax payable for the then current year is less than the amount of the creditable expenditures, the balance thereof may be credited against the profit-seeking enterprise income tax payable in the four (4) years following the then current year:

21.Capital expenditures invested in building or operating equipment or technology;

32.Capital expenditures invested in procurement of pollution-control equipment or technology; and

43.Capital expenditures invested in research and development, and personnel training.

5The total investment expenditures creditable against the profit-seeking enterprise income tax payable in each year under the preceding paragraph shall not exceed fifty percent (50%) of such income tax payable by the private institution for the then current year, unless otherwise specified in the last year of the four-year period.

6The applicable scope of each subparagraph in Paragraph 1, the authority granting the approval, the deadline and the procedure for application, the implementation period, supplemental tax payment, and other relevant matters shall be prescribed by the competent authority in conjunction with the central authorities in charge of the relevant industries.

1Customs duties on the construction machinery and equipment, special transporting vehicles, training facilities, and the required parts/components thereof imported by a private institution or its direct contractor(s) for use in building a major infrastructure may be exempted if the purpose for use of such items is confirmed by the authority-in-charge, and the Ministry of Economic Affairs confirms that such items have not yet been manufactured or supplied domestically.

2Customs duties on the machinery and equipment, training facilities, and the required parts/components thereof imported by a private institution for use in the operation of a major infrastructure project may be paid in installments one year after the date of the major infrastructure project concerned enters operation, if the purpose for use of such items is confirmed by the authority-in-charge, and the private institution furnishes a guarantee acceptable to the authority.

3If the authority-in-charge proves that the machinery and equipment imported by a private institution in accordance with Paragraph 1 have been manufactured or supplied domestically, customs duties on such imports may be paid in installments one year after the infrastructure is constructed, with a guarantee acceptable to the authority from the private institution.

4If, before the customs duties are fully paid, the ownership of any machinery or equipment on which the customs duties is paid in installments in accordance with Paragraphs 2 and 3 is assigned or used for any purpose other than those originally approved, the outstanding customs duties shall be paid in a lump sum within a given time limit in accordance with the Customs Act, however, if such assignment is specially approved by the competent authority, the assignee thereof may continue to pay the outstanding customs duties in installments.

1The land value tax and the housing tax leviable on the real estate for direct use by a private institution during the building or operations of a major infrastructure project in which the private institution participates, and the deed tax leviable at the time of acquisition of such real estate may be reduced or completely exempted at the discretion of the authorities.

2The tax exemption or reduction period, the scope thereof, the criteria and procedures therefor, and the supplemental tax payment as referred to in the preceding paragraph shall be prescribed by the relevant municipal/county/city governments, submitted to the relevant municipal/county/city councils for approval, and filed with the competent authority for recordation.

1Where a profit-seeking enterprise subscribes for or underwrites registered shares issued by a private institution participating in a major infrastructure project upon its incorporation or expansion, and has held such registered shares for a period of four (4) years or more, such profit-seeking enterprise may credit up to twenty percent (20%) of the subscription price against the profit-seeking enterprise income tax payable for the current year. Where the amount of profit-seeking enterprise income tax payable is less than the amount creditable, the balance thereof may be credited against the profit-seeking enterprise income tax payable in the four (4) years following the current year.

2The total amount of investment credit against the payable profit-seeking enterprise income tax in each year as referred to in the preceding paragraph shall not exceed fifty percent (50%) of the profit-seeking enterprise income tax payable by the profit-seeking enterprise concerned for the current year, unless otherwise specified in the last year of the four-year period.

3The authority approving investment credit, the application time limit and procedures, the implementation period, the rates of tax credit, and the regulations for supplemental payment and the relevant matters shall be prescribed by the competent authority in conjunction with the central authorities in charge of the relevant industries.

Provisions in this Chapter shall not apply to any of the ancillary businesses operated by a private institution hereunder in accordance with Article 13 of this Act.

1In respect of an infrastructure project planned by the government which is evaluated by the authority-in-charge as suitable for private participation, the authority-in-charge shall announce by a public notice the programmed contents of the building and/or the operation thereof, as well as the qualifications of the participants for the infrastructure project concerned, so to invite private participation.

2The applicants of the infrastructure project as referred to in the preceding paragraph shall acquire from the authority-in-charge the relevant information of the programmed project before the expiration of the deadline set forth in the public notice.

To participate in an infrastructure project specified in the preceding article, the applicants shall, before the expiration of the deadline set forth in the public notice, prepare the qualification documents, the relevant land utilization plan, the construction plan, the operation plan, the financial plan, the letter of intent for financing issued by the financial institution and other information as may be required in the public notice concerned, and then submit the same to the authority-in-charge to apply for participation in the infrastructure project concerned.

1To evaluate the applications submitted in response to the public notice inviting private participation, the authority-in-charge shall organize a Selection Committee which shall establish the evaluation criteria based on the purpose of the infrastructure project concerned, examine and evaluate the materials submitted by the applicants on a fair basis and then select the best applicant therefrom within the evaluation period.

2The evaluation criteria referred to in the preceding paragraph shall be announced simultaneously upon the announcement of the public notice inviting private participation. The evaluation period shall be determined on a case-by-case basis and a notice thereof shall be given to the applicants.

3The regulations governing the organization of the Selection Committee and the evaluation thereof as referred to in Paragraph 1 shall be prescribed by the competent authority. One half or more of the members of the Selection Committee shall be specialists and scholars and the evaluation process shall be made public.

1The applicant which is selected as the best applicant in accordance with the preceding article shall complete negotiations for the contract and the preparatory work, and sign the contract within the time limits given by the authority-in-charge, and construct the project and operate the infrastructure in accordance with the law.

2If the best applicant fails to complete negotiations for the contract, the preparatory work, and/or signing of the contract within the given time limits, the authority-in-charge may demand that the best applicant complete the above matters within a given time limit. If the best applicant still fails to do as demanded, the authority-in-charge may replace the best applicant with the second-best applicant who is also qualified for constructing the infrastructure, or announce again by a public notice to re-invite private participation in accordance with Article 42 hereof.

3Before the execution of the contract, if, out of consideration for policy change or public interests, the authority-in-charge does not want to proceed with the negotiation for or the execution of the contract, the authority-in-charge shall notify the best applicant thereof in writing and negotiate the compensation amount with the best applicant. The scope of compensation may cover the reasonable costs and expenses incurred by the best applicant for preparation for the application and in reliance on the selection results.

4If the negotiation for a compensation amount under the preceding paragraph fails to reach an agreement, a lawsuit may be initiated before the administrative court to claim payment.

1Where a private institution takes the initiative to apply for participating in an infrastructure project, the land and facilities needed to support the application may be provided by the applicant itself or be provided by the authority-in-charge.

2For handling a case under the preceding paragraph, the authority-in-charge shall make a policy announcement according to its policy requirements or in reference to the project outlines submitted by private institutions so as to invite private institutions to apply for participating in the infrastructure project by submitting feasibility study reports. Where a private institution’s project outline is considered by the authority-in-charge as not meeting the policy requirements, the private institution’s application shall be dismissed.

3After a feasibility study report submitted in accordance with the preceding paragraph passes the preliminary review of the authority-in-charge, the authority-in-charge shall organize a Selection Committee in accordance with Paragraph 1, Article 44 to conduct the following matters:

41.Where a private institution applicant provides private the land and facilities needed by the project, the authority-in-charge shall notify the applicant passing the preliminary review to submit its investment proposal for review by the Selection Committee.

52.Where the authority-in-charge provides the land and facilities needed by the project, the authority-in-charge shall make an announcement according to the results of the preliminary review to invite applicants and tell the private institution applicants having passed the preliminary review to submit their investment proposals for review by the Selection Committee. Preferential terms may be offered to applicants having passed the preliminary review.

1If an applicant participating in an infrastructure project believes that any of the authority-in-charge’s acts or decisions in the application and evaluation procedures is in violation of this Act or any applicable laws or regulations, which damages the applicant’s rights or interests, the applicant may file a written protest with the authority-in-charge before the following deadline:

21.A protest against the regulations for the announcement of the bidding documents for inviting private participation may be made from the day after the announcement to up to two thirds of the days within the application period; if the two-thirds limit cuts short the final day, then the final day is deemed as a whole day. Nevertheless, the entire time limit for such protest shall not be shorter than 10 days.

32.A protest against the application and evaluation procedures, decisions or results may be made within 30 days after the date of receipt of the authority-in-charge’s notice or the announcement. Where there is no notice or announcement of the procedures, decisions or results, a protest may be made within 30 days of the day the procedures, decisions or results are or can be known.

43.A protest against a decision made after the evaluation results or before the execution of a concession agreement may be made within 30 days after the date of receipt of the authority-in-charge’s notice or the announcement.

5The authority-in-charge shall properly handle a protest and notify the protester of the handling results within 20 days after the date of receipt of the protest. Where the handling results involve amending or supplementing the announcement of the bidding documents for inviting private participation, a new announcement shall be made, and the deadline for application may be extended, if necessary.

With regard to the infrastructure projects which are built or operated by private institutions as approved under this Act, the provisions under the Government Procurement Act shall not apply. Participation by a foreign company in an infrastructure project governed by this Act shall comply with the treaties or agreements to which the R.O.C. is a party.

1The concession agreement shall set forth the formation of a coordination committee for contract dispute coordination, and may stipulate that disputes shall be submitted to arbitration if the coordination fails.

2Unless otherwise provided in the concession agreement, disputes over contract performance may be submitted to coordination by the coordination committee, or application may be filed to request mediation of disputes over contract performance by a contract performance dispute mediation committee organized by the competent authority. Where an application for mediation is filed by the private institution, the authority-in-charge shall not reject such mediation. If the coordination or the mediation fails, the parties may agree to submit the dispute to arbitration.

3Unless otherwise provided in this Act, the provisions for mediation in the Code of Civil Procedure shall apply mutatis mutandis to the procedure for and the effects of the contract performance dispute mediation committee’s handling disputes over contract performance.

4The contract performance dispute mediation committee shall have nine to thirty-five members, who shall be appointed from high-ranking officers of the competent authority or be impartial people having expertise in engineering, finance, or law. Of the members, three at the most may be appointed from high-ranking officers of the competent authority, and such members shall not exceed one-fifth of the total members. The regulations for the organization of the contract performance dispute mediation committee, the term of office and the selection of the members, and other related matters shall be prescribed by the competent authority.

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1Mediation of a dispute over contract performance shall be deemed successful if the parties agree on the mediation results. If the parties disagree with the results, the mediation shall be deemed unsuccessful.

2During the mediation, a mediation committee member may ex officio present a written mediation suggestion in the name of the contract performance dispute mediation committee.

3Either party who disagrees with the mediation suggestion mentioned in the preceding paragraph shall present its disagreement in writing to the committee and the opposite party within 20 days after the service of the mediation suggestion. Any party failing to express its disagreement in writing within the time limit shall be deemed consenting to the suggestion.

4The regulations for application for mediation of disputes over contract performance, the application procedures, and other related matters shall be prescribed by the competent authority.

1Where an infrastructure project participated in by the private institution is a public utility enterprise, the private institution may, based on the following factors, set the fare rate and the schedule and method for fare adjustment in the financial plan submitted in its application:

21.Cost expenditures for planning, construction, operation and other financial matters;

32.Income derived from the operation and the ancillary enterprises;

43.Operation period;

54.Payment of royalty; and

65.Price index.

7The fare rate and the schedule and method for fare adjustment as referred to in the preceding paragraph shall, before the execution of the concession agreement by the authority-in-charge and the private institution, be approved by the relevant authority in charge of the public utilities concerned in accordance with applicable laws. Afterwards, the authority-in-charge shall have such approved fare rate and the schedule and method for fare adjustment included in the concession agreement and then announce the same in a public notice.

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For the infrastructure projects operated under this Act, the government shall not request the relevant private institutions to provide any favorable treatment for reduction of fare price unless otherwise permitted by applicable laws. Where any favorable treatment is provided due to the regulatory requirements under applicable laws, the authorities in charge of the relevant laws shall, unless otherwise specified in the concession agreement, appropriate respective budgets to subsidize the relevant private institutions.

1A private institution shall not transfer, lease out, or create any encumbrance on, the concession obtained under the concession agreement, nor shall it make such concession an object for enforcement in a civil action, unless the authority-in-charge declares that such an act is necessary for the improvement plan specified in Article 52 or the proper measures specified in Article 53.

2Without the consent of the authority-in-charge, a private institution shall not transfer, lease out, or create any encumbrance on, any operating asset and/or equipment obtained from the building and/or the operation of an infrastructure.

3Any transfer, lease, or creation of any encumbrance in violation of any of the preceding two paragraphs shall be null and void.

4Without the consent of the authority-in-charge, a private institution shall not proceed with any merger or spin-off.

1After a major infrastructure has been in operation for an entire year, the authority-in-charge shall evaluate the operating performance of the private institution concerned at least once each of the operation years.

2For an infrastructure that is not a major infrastructure set forth in the preceding paragraph or has not been in operation for an entire year, performance of its operation shall be evaluated in accordance with the concession agreement.

3If the authority-in-charge rates the operating performance of a private institution as “good,” the authority-in-charge may give the institution the priority to extend the concession agreement before the expiration of the operation period. Such priority shall be given only once, and the extension period shall not exceed the term of the original concession agreement.

4The criteria for operating proficiency evaluation items under Paragraphs 1 and 2, the evaluation standards and procedures, and the method of giving good ratings shall be set forth in the concession agreement.

Each year when the authority-in-charge conducts infrastructure projects in accordance with Article 9-1, the competent authority shall submit the implementation status and the performance thereof to the Legislative Yuan for recordation.

1If, during the building or operations of an infrastructure by a private institution, there is any serious schedule delay, material defects in the construction quality, poor operation, or other major events, the authority-in-charge shall take the following actions in accordance with the concession agreement, with a written notice to the private institution:

21.To order the private institution to make improvements within a given period.

32.To suspend part or all of the construction or operations if no improvement is achieved within the given period or if the improvement is ineffective, or allow a financing institution, a guarantor, or any other institution designated by the financing institution or the guarantor to temporarily take over the infrastructure project and continue the building and/or the operations thereof for a certain period.

43.To terminate the concession agreement if after a certain period following the suspension of the construction or operations or the temporary takeover by a financing institution, a guarantor, or any other institution designated by the financing institution or the guarantor under the preceding subparagraphs, no improvement is achieved.

5When taking actions in accordance with the preceding paragraph, the authority-in-charge shall notify the financing institution, the guarantor, and the relevant government agencies of such actions.

6After the concession agreement is terminated upon occurrence of any event specified in Subparagraph 3, Paragraph 1 and the accounts are settled, the financing institution or the guarantor may, with the approval of the authority-in-charge, sign or designate another institution meeting legal requirements to sign a concession agreement with the authority-in-charge to continue the building or operations of the infrastructure.

1If, during the building or operations of an infrastructure, there are serious schedule delays, material defects in the building quality, poor operations, or other major events, and due to the pressing nature thereof, any failure to take immediate action may jeopardize major public interests or result in imminent danger, the central authority in charge of the relevant industries may order the private institution concerned to cease part or all of the construction or the operations of the infrastructure, with a notice to each of the government agencies concerned.

2In the event of suspension of part or all of the operations of an infrastructure under Paragraph 1 of the preceding article, or the cessation of part or all of the operations under the preceding paragraph, or the termination of the concession agreement, the authority-in-charge may take steps at its discretion to maintain the operations of the infrastructure. If necessary, the authority-in-charge may compulsorily take over the operations of the infrastructure. The regulations governing the takeover methods, the scope, enforcement and termination of the takeover, and related matters shall be prescribed by the central authority in charge of the relevant industries.

Where a private institution is required to transfer an infrastructure to the government upon expiration of the operation period, it shall have any and all existing operating assets or the operation concession transferred or reverted to the authority-in-charge with or without consideration in accordance with the concession agreement.

1This Act shall not affect any of the rights and obligations under the concession agreement for a particular infrastructure project executed prior to the promulgation of this Act by and between the government and the private institution. For any matters not specified in the relevant concession agreements, the provisions of this Act may apply if such provisions are more favorable to the private institution concerned.

2With regard to any of the infrastructure projects which was publicly invited by the government for private participation prior to the enforcement of this Act but the concession agreement thereof is executed after the enforcement of this Act, if it has been stated in the public announcement that the then current laws and regulations for encouragement of private investments shall apply to such project and if such applicable laws and regulations have been specifically referred to in the concession agreement, the infrastructure project concerned as well as the rights and obligations under such concession agreement shall be governed by such laws and regulations; provided, however, that the provisions of this Act may apply if such provisions are more favorable to the private institution concerned.

The Enforcement Rules of this Act shall be prescribed by the competent authority and promulgated after the approval of the Executive Yuan.

This Act shall be enforced from the date of promulgation.