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MINISTRY OF FINANCE OF VIETNAM
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SOCIALIST REPUBLIC OF VIETNAM
Independence – Freedom – Happiness
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No. 08/2022/TT-BTC
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Hanoi, February 9, 2022
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CIRCULAR
MANAGEMENT AND USE OF REVENUES AND EXPENDITURES ON
SELECTION OF INVESTORS
Pursuant to Decree No.
163/2016/ND-CP dated December 21, 2016 of the Government of Vietnam elaborating
the Law on State Budget and its implementation guidelines;
Pursuant to Decree No.
25/2020/ND-CP dated February 28, 2020 of the Government of Vietnam elaborating
the implementation of a number of Articles of the Law on Bidding on investor
selection;
Pursuant to Decree No.
10/2021/ND-CP dated February 9, 2021 of the Government of Vietnam on management
of construction investment costs;
Pursuant to Decree No.
15/2021/ND-CP dated March 3, 2021 of the Government of Vietnam elaborating the
management of construction investment projects;
Pursuant to Decree No.
28/2021/ND-CP dated March 26, 2021 of the Government of Vietnam on mechanisms
for financial management of public-private partnership investment projects;
Pursuant to Decree No.
31/2021/ND-CP dated March 26, 2021 of the Government of Vietnam elaborating the
Law on Investment and its implementation guidelines;
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Pursuant to Decree No.
60/2021/ND-CP dated June 21, 2021 of the Government of Vietnam prescribing
financial autonomy of public service providers;
Pursuant to Decree No.
99/2021/ND-CP dated November 11, 2021 of the Government of Vietnam on
management, payment, and final settlement of public investment projects;
Pursuant to Decree
No.87/2017/ND-CP dated July 26, 2017 of the Government of Vietnam on functions,
duties, entitlements and organizational structure of the Ministry of Finance of
Vietnam;
At the request of the
Director of Department of Investment;
The Minister of
Finance of Vietnam hereby promulgates the Circular on management and use of
revenues and expenditures on selection of investors.
Chapter I
GENERAL PROVISIONS
Article 1. Scope
This Circular provides
for the management and use of revenues and expenditures during the process of
selecting investors for:
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2. Investment projects with the use of land and investment
projects subject to bidding according to relevant laws and laws on private
investment prescribed in Decree No. 25/2020/ND-CP dated February 28, 2020 of
the Government of Vietnam elaborating the implementation of a number of
Articles the Law on Bidding on investor selection (hereinafter referred to as “Decree
No. 25/2020/ND-CP”) and Decree No. 31/2021/ND-CP dated March 26, 2021 of the
Government of Vietnam elaborating the Law on Bidding and its implementation
guidelines (hereinafter referred to as “Decree No. 31/2021/ND-CP”).
Article 2. Regulated
entities
Organizations and
individuals participating in or are involved in the investor selection for
investment projects prescribed in Article 1 hereof.
Article 3. Principles
of management of revenues and expenditures on selection of investors
1. Revenues and expenditures on selection of investors must
stay true to their purposes and comply with policies of the State and
regulations of the law.
2. Advance payment, payment, and final settlement of revenues
and expenditures during the selection of investors shall comply with
regulations of the law on management, use, payment, and final settlement of the
public investment capital, recurrent expenditures from the state budget
prescribed hereof and relevant laws.
Article 4.
Expenditures on selection of PPP investors
1. Expenditures on selection of PPP investors include:
a) Expenditures on
preparation and appraisal of documents for pre-qualification invitation;
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c) Expenditures on
assessment of results of the pre-qualification;
d) Expenditures on
preparation and appraisal of documents for invitations to negotiate and bidding
documents;
dd) Expenditures on
assessment of applications for negotiations and bid envelops;
e) Expenditures on
appraisal of results of the selection of investors;
g) Expenditures on
settlement of complaints about the result of investor selection from investors.
2. Norms of expenditures prescribed in Clause 1 of this
Article shall comply with regulations prescribed in Article 32 and Point e
Clause 2 Article 73 of Decree No. 35/2021/ND-CP.
Article 5.
Expenditures on selection of investors for projects with the use of land or
projects subject to bidding according to relevant laws and laws on private
investment
1. Expenditures on selection of investors for projects with
the use of land or projects subject to bidding according to relevant laws and
laws on private investment include:
a) Expenditures on
preparation and appraisal of bidding documents and request documents;
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c) Expenditures on
appraisal of results of investor selection;
d) Expenditures on
settlement of complaints about the result of investor selection from investors.
2. Norms of expenditures prescribed in this Article shall
comply with regulations prescribed in Clause 1 Article 7 of Decree No.
25/2020/ND-CP amended by Clause 5 Article 89 of Decree No. 35/2021/ND-CP.
Article 6. Revenues
from the selection of investors
1. Revenues from bidding document sale and other revenues (if
any) after performing tax obligations shall be submitted to the state budget
according to the Law on State Budget by the procuring entity.
2. Revenues from the refund of costs prescribed in Article 4
and Article 5 hereof by selected investors shall be submitted to the state
budget according to regulations of the Law on State Budget within 15 days from
the signing date of the PPP contract, contract between competent state agencies
and investors for projects with the use of land, or projects subject to bidding
for selection of investors according to relevant laws and laws on private
investment.
Chapter II
MANAGEMENT OF EXPENDITURES ON SELECTION OF
PPP INVESTORS
Article 7. Budget for
selection of PPP investors
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Article 8. Management
and use of the budget for bidding for selection of PPP investors
1. In case the procuring entity is the Management Board of
Projects: the management, use, and final settlement of the budget for bidding
for selection of PPP investors shall comply with regulations of the Ministry of
Finance of Vietnam on management and use of revenues for project advisory and
management activities of investors and management boards of public investment
projects.
2. In case professional or affiliated units of competent
agencies hire advisory services in the selection of investors for a part or all
of the work prescribed in Clauses 2, 3, 4 Article 32 of Decree No.
35/2021/ND-CP, the advisory service fees are as follows:
a) The total expenditures
on selection of investors with tax (including costs created by the Procuring
Entity) shall not exceed the estimate approved for advisory service.
b) The value of payment
for the advisory unit shall comply with the Contract between the Procuring
Entity and the advisory unit.
c) The management, use,
payment, and final settlement of the budget prescribed in Point b of this
Clause shall comply with current regulations on management, payment, and final
settlement of public investment capital.
3. In case professional or affiliated units of competent
agencies are capable and approved for implementation of a part or all of the
work prescribed in Clauses 2, 3, 4 Article 32 of Decree No. 35/2021/ND-CP by
competent agencies: Such units shall be assigned to implement the management
and use of the budget for the organization of bidding for investor selection
according to the financial mechanism approved by competent agencies.
Article 9.
Expenditures on settlement of complaints about the result of investor selection
from investors
1. If investors have complaints about the result of investor
selection and want competent persons to settle such complaints, submit the fee
for complaint settlement to the standing assistance body of the Advisory Board
as prescribed in Point e Clause 2 Article 73 of Decree No. 35/2021/ND-CP.
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3. The estimate of expenditures on complaint settlement shall
be approved by the Chairman of the Advisory Board as prescribed in Clause 2 of
this Article and not exceed the submitted amount prescribed in Clause 1 of this
Article.
4. The Chairman of the Advisory Board shall decide on the
provision of fixed funding according to the approved estimate to members of the
Advisory Board and the standing assistance body of the Advisory Board and other
expenditures on complaint settlement.
5. The standing assistance body of the Advisory Board shall be
responsible for the expenditures on complaint settlement according to the
estimate approved by the Chairman of the Advisory Board.
6. At the end of the complaint settlement, the Chairmen of the
Advisory Board shall determine the actually spent amount from the budget. The
Chairman of the Advisory Board shall determine the difference between the
amount submitted by the investor and the spent amount (if any), and the
standing assistance body of the Advisory Board shall refund such amount to such
investor within 7 days after the spent amount is determined.
7. In case the complaint of the investor is correct after
conclusion, the decision on the settlement of complaints about the result of
investor selection of the competent agency must have the conclusion of the
amount and deadline for the procuring entity to refund such amount to the
investor. The amount the procuring entity has to refund to the investor is
equal to the amount submitted by the investor for complaint settlement minus
the refunded amount prescribed in Clause 6 of this Article (if any).
8. When the complaint is correct as concluded by competent
agencies:
a) If the procuring
entity is an administrative unit or public services provider: The budget for
the refund to the investor shall be allocated from the estimate of recurrent
expenditures of the unit.
b) If the procuring
entity is not an administrative unit or public services provider: The budget
for the refund to the investor shall be allocated from the operating budget of
the unit.
9. Organizations and individuals that commit violations
against the decision on settlement of complaints about the results of investor
selection issued by competent agencies shall pay compensation to the procuring
entity as prescribed by law.
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MANAGEMENT OF EXPENDITURES ON SELECTION OF
INVESTORS FOR PROJECTS WITH THE USE OF LAND OR PROJECTS SUBJECT TO BIDDING
ACCORDING TO RELEVANT LAWS AND LAWS ON PRIVATE INVESTMENT
Article 10. Budget for
selection of investors for projects with the use of land or projects subject to
bidding according to relevant laws and laws on private investment
1. The budget for selection of investors for projects with the
use of land prescribed in Points a, b, c Clause 1 Article 5 of this Circular
shall be allocated from the budget for recurrent expenditures from the state
budget of the professional agency of the People’s Committee of the province,
the agency affiliated to the People’s Committee of the province or the People’s
Committee of the district assigned as the procuring entity by the People’s
Committee of the province, or from the budget for recurrent expenditures of
state budget of the unit affiliated to the Management Board of Industrial Zones
assigned as the procuring entity by the Management Board of Industrial Zones as
prescribed in Article 13 of Decree No. 25/2020/ND-CP amended by Clause 6
Article 108 of Decree No. 31/2021/ND-CP.
2. The budget for selection of investors for projects subject
to bidding according to relevant laws and laws on private investment prescribed
in Points a, b, c Clause 1 Article 5 of this Circular shall be allocated from
the budget for recurrent expenditures from the state budget of the professional
agency, the agency affiliated to the Ministry, central authority, People's
Committee of the province, or People’s Committee of the district assigned as
the procuring entity by the People’s Committee of the province, or the unit
assigned as the procuring entity according to relevant laws and laws on private
investment as prescribed in Clause 2 Article 16 of Decree No. 25/2020/ND-CP.
Article 11.
Preparation, approval, and compliance with estimates
1. Principles of preparing, approving, and complying with
estimates
The preparation,
approval, and compliance with estimates of expenditures on bidding for
selection of investors prescribed in Points a, b Clause 1 Article 5 of this
Circular shall comply with current regulations on preparation, approval, and
compliance with estimates of recurrent expenditures from the state budget.
2. The preparation of estimates of expenditures on bidding for
investor selection for projects with the use of land or projects subject to
bidding according to relevant laws and laws on private investment shall be
based on:
a) The list of projects
with the use of land approved by competent authorities and disclosed according
to Article 12 of Decree No. 25/2020/ND-CP amended by Clause 5 Article 108 of
Decree No. 31/2021/ND-CP; the list of projects subject to bidding according to
relevant laws and laws on private investment approved by competent authorities
as prescribed in Article 16 of Decree No. 25/2020/ND-CP amended by Clause 7
Article 108 of Decree No. 31/2021/ND-CP;
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c) Policies and
regulations according to corresponding current regulations.
3. Preparing, approving, and complying with estimates
a) Pursuant to
regulations of the Law on State Budget of Vietnam and regulations prescribed in
Clause 1 and Clause 2 of this Article: Professional agencies of the People's
Committee, agencies affiliated to the People's Committee of the province,
People's Committee of the district; units affiliated to the Management Board of
Industrial Zones shall prepare estimates of specific expenditures as prescribed
in Article 5 hereof, summarize, include them in their annual estimate of the
budget, and present them to competent authorities for approval as per
regulation;
b) After the estimate of
the annual budget is approved by competent authorities; the People's Committee
of the province, People's Committee of the district, and Management Board of
Industrial Zones shall allocate the estimate of recurrent expenditures to
assigned units as per regulations;
c) In case there are
projects with the use of land or projects subject to bidding according to
relevant laws and laws on private investment approved by competent authorities
during the year: Professional agencies of the People's Committee, agencies
affiliated to the People's Committee of the province, People's Committee of the
district; units affiliated to the Management Board of Industrial Zones shall
prepare additional estimates and present them to competent authorities for
approval according to current regulations.
Article 12. Management
of expenditures on bidding for the selection of investors for projects with the
use of land or projects subject to bidding according to relevant laws and laws
on private investment
1. In case the procuring entity is a public service provider
that organizes the implementation of the selection of investors for projects
with the use of land as prescribed in Article 7 of Decree No. 25/2020/ND-CP
amended by Clause 5 Article 89 of Decree No. 35/2021/ND-CP: The management,
use, and final settlement of the budget for the selection of investors for
projects with the use of land or projects subject to bidding according to
relevant laws and laws on private investment shall comply with regulations on
the financial autonomy of public service providers.
2. In case the procuring entity is an administrative unit that
organizes the implementation of the selection investors as prescribed in Clause
7 of Decree No. 25/2020/ND-CP amended by Clause 5 Article 89 of Decree No.
35/2021/ND-CP: The management, use, and final settlement of the budget for the
selection of investors for projects with the use of land or projects subject to
bidding according to relevant laws and laws on private investment shall comply
with the Law on State Budget of Vietnam.
3. In case the state competent agency or procuring entity hire
advisory service to implement a part or all of the work prescribed in Article 7
of Decree No. 25/2020/ND-CP amended by Clause 5 Article 89 of Decree No.
35/2021/ND-CP, the budget for advisory service is as follows:
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b) The value of payment
for the advisory unit shall comply with the Contract between the procuring
entity or state competent authority and the advisory unit.
c) The management, use,
payment, and final settlement of budget prescribed in Point b of this Clause
shall comply with current regulations of the Law on Stage Budget of Vietnam.
Article 13.
Expenditures on settlement of complaints about the result of investor selection
from investors
1. If investors have complaints about the result of investor
selection and want competent persons to settle such complaints, submit the fee
for complaint settlement to the standing assistance body of the Advisory Board
as prescribed in Clause 6 Article 7 of Decree No. 25/2020/ND-CP.
2. The standing assistance body of the Advisory Board shall
make and present the Chairman of the Advisory Board with the estimate of
expenditures on settlement of complaints of investors by each case for
approval.
3. The estimate of expenditures on complaint settlement shall be
approved by the Chairman of the Advisory Board as prescribed in Clause 2 of
this Article and not exceed the submitted amount prescribed in Clause 1 of this
Article.
4. The Chairman of the Advisory Board shall decide on the
provision of fixed funding according to the approved estimate to members of the
Advisory Board and the standing assistance body of the Advisory Board and other
expenditures on complaint settlement.
5. The standing assistance body shall be responsible for the
expenditures on complaint settlement according to the estimate approved by the
Chairman of the Advisory Board.
6. At the end of the complaint settlement, the Chairmen of the
Advisory Board shall determine the actually spent amount from the budget. The
standing assistance body of the Advisory Board shall refund the difference
between the amount submitted by the investor and the spent amount (if any) to
such investor within 7 days after the Chairman of the Advisory Board determines
the spent amount.
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8. The standing assistance body of the Advisory Board shall
send a written request to the procuring entity to consider refunding an amount
equal to the amount submitted by the investor for complaint settlement minus
the refunded amount prescribed in Clause 6 of this Article (if any).
9. The budget for refund to investors according to the
decision on settlement of complaints about the result of investor selection:
a) If the procuring
entity is an administrative unit or public services provider: The budget for
the refund to the investor shall be allocated from the estimate of recurrent
expenditures of the unit.
b) If the procuring
entity is not an administrative unit or public services provider: The budget
for the refund to the investor shall be allocated from the operating budget of
the unit.
10. Organizations and individuals that commit violations
against the decision on settlement of complaints about the results of investor
selection issued by competent authorities shall pay compensation to the
procuring entity as prescribed by law.
Chapter IV
IMPLEMENTATION
Article 14.
Responsibilities of relevant agencies
1. Competent agencies, agencies, or units assigned as the
procuring entity shall:
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b) Prepare the estimate
of costs during the process of selecting investors and the report on the final
settlement of use costs and present them to competent authorities for appraisal
and approval;
c) Refund expenses spent
by the Advisory Board in case the complaint of the investor is determined to be
correct.
2. Payment agencies shall:
Control and pay costs
incurred during the process of selecting investors according to regulations on
payment of the state budget, the Law on Public Investment, current regulations
on financial management of the state, and regulations prescribed hereof.
3. Responsibilities of the Chairman and standing assistance
body of the Advisory Board
a) The Chairman of the
Advisory Board shall manage and use the amount submitted by investors as
prescribed in Clause 1 Article 9 and Clause 1 Article 13 of this Article,
ensuring efficiency, thrift, and compliance with the law.
b) The standing
assistance body of the Advisory Board shall receive the amount submitted by
investors, prepare and present the estimate of expenditures to the Chairman of
the Advisory Board for approval, and manage expenditures on the operation of
the Advisory Board according to the approved estimate and the refund as
prescribed in Articles 9 and 13 hereof.
4. Ministries, central agencies, other agencies, and
administrative divisions shall:
Inspect the management
and use of the budget for the selection of investors for PPP projects, projects
with the use of land, or projects subject to bidding according to relevant laws
and laws on private investment; adopt measures according to the law to handle
violating individuals or units regarding the management and use of the budget
for investor selection.
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Submit the amount
prescribed in Article 6 of this Article and the Law on State Budget of Vietnam
to the state budget.
Article 16.
Implementation provisions
1. This Circular comes into force as of March 25, 2022.
2. Regulations on investor selection cost prescribed in
Circular No. 88/2018/TT-BTC dated September 28, 2018 of the Ministry of Finance
of Vietnam on the financial management of PPP projects and investor selection
costs shall expire when this Circular comes into force.
3. In case the estimate of the budget for investor selection
has been approved by competent agencies before the effective date of this
Circular, the payment and final settlement of the budget for investor selection
shall comply with this Circular without having to obtain approval for the
estimate again.
4. If any document cited in this Circular is amended,
supplemented, or replaced, comply with its new edition.
5. The Ministry, central agencies, other agencies, People's
Committees at various levels, Management Boards of Industrial Zones, and
relevant organizations and individuals shall implement this Circular.
6. Difficulties that arise during the implementation of this
Circular should be reported to the Ministry of Finance of Vietnam for
appropriate amendments./.
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PP. MINISTER
DEPUTY MINISTER
Ta Anh Tuan