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GOVERNMENT
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SOCIALIST
REPUBLIC OF VIETNAM
Independence - Freedom - Happiness
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No. 114/2021/ND-CP
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Hanoi, December
16, 2021
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DECREE
ON
MANAGEMENT AND USE OF OFFICIAL DEVELOPMENT ASSISTANCE (ODA) AND CONCESSIONAL
LOANS PROVIDED BY FOREIGN DONORS
Pursuant to the Law on Government Organization
dated June 19, 2015; the Law on Amending and Supplementing certain Articles of
the Law on Government Organization and the Law on Local Government Organization
dated November 22, 2019;
Pursuant to the Law on State Budget dated June
25, 2015;
Pursuant to the Law on Bidding dated November
26, 2013;
Pursuant to the Law on Construction dated June
18, 2014; the Law on Amendments and Supplements to several the Law on
Construction dated June 17, 2020;
Pursuant to the Law on Management and Use of
State Capital Invested in Production and Business Activities of Enterprises
dated November 26, 2014;
Pursuant to the Law on Treaties dated April 9,
2016;
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Pursuant to the Law on Public Investment dated
June 13, 2019;
Pursuant to the Law on Investment dated June 17,
2020;
Pursuant to the Law on Enterprises dated June
17, 2020;
Pursuant to the Law on Public – Private Partnership
Investment dated June 18, 2020;
Pursuant to the Law on Environmental Protection
dated November 17, 2020;
Upon the request of the Minister of Planning and
Investment;
The Government herein issues the Decree on
management and use of official development assistance (ODA) and concessional
loans provided by foreign donors.
Chapter I
GENERAL PROVISIONS
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This Decree provides for the management and use of
official development assistance (ODA) and concessional loans provided by
foreign governments, international organizations, inter-government or
international organizations, governmental organizations authorized by foreign
governments (hereinafter referred to as foreign donors) to the State or the
Government of Socialist Republic of Vietnam.
Article 2. Subjects of
application
This Decree applies to agencies, organizations and
individuals that participate in or are related to the management and use of ODA
and concessional loans granted by foreign donors, and counterpart fund on the
Vietnam’s side.
Article 3. Definitions
For the purposes of this Decree, terms used herein
shall be construed as follows:
1. Steering
Committee for programs or projects funded by ODA and concessional loans
(hereinafter referred to as Steering Committee) means an organization
established by the managing agency of a program/project funded by ODA or
concessional loans (hereinafter referred to as “program/project”) in which an
authorized representative of the relevant agency participates to take control
of, cooperating in, and supervising the execution of the program/project. In
some cases where necessary, under an agreement with the foreign donor, the
Steering Committee may include the foreign donor’s representatives.
2. Management
Unit of foreign aid program or project funded by ODA and concessional loans
(hereinafter referred to as Project Management Unit) means an organization
established to help the managing agency or the project owner in managing the
execution of one or some programs/projects.
3. Program
means a series of activities and projects funded by ODA or concessional loans
that are interrelated and might be related to one or some different sectors,
industries, territories or subjects with an aim of achieving one or some
targets, and is executed in one or several phases.
4. Program
associated with a policy framework means a program that is subject to
conditions for disbursement of ODA or concessional loans of foreign donors
associated with the commitment of Vietnam’s government to building and
implementing policies, regulations, solutions for socio-economic development in
accordance with the scale and schedule agreed upon among the parties.
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a) Participation in one or some activities readily
designed by the foreign donor that are embraced in the regional
program/project;
b) Execution of operations for which aid is
provided for Vietnam in order to develop and execute the program/project within
the framework of the regional program/project.
6. Sectoral
approach program means a program funded by ODA or concessional loans in
which the foreign donor provides assistance according to the development
program of an industry or sector in order to ensure concerted, sustainable and
effective development of such industry or sector.
7. Managing
agency of a program/project funded by ODA and concessional loans (hereinafter
referred to as Managing agency) means the central agency of a political
organization; the People’s Supreme Procuracy; the People’s Supreme Court, an
agency of the National Assembly; the National Assembly’s Office; the State
Audit Agency; the President Office, a Ministry, ministerial agency or
Governmental agency, the People’s Committee of a province or
centrally-affiliated city (hereinafter referred to as provincial People’s
Committee); the central agency of Vietnamese Fatherland Front, a
socio-political organization, socio-political-professional organization, or
socio-professional organization that performs the duty assigned by a competent
state authority; other agency or organization assigned the public investment
plan comprising the program/project funded by ODA and concessional loans.
8. Owner of a
program/project funded by ODA and concessional loans means a unit assigned
by the managing agency to directly manage or jointly execute that
program/project.
9. Domestic
financial mechanism applied to programs/projects funded by ODA and
concessional loans (hereinafter referred to as domestic financial mechanism)
means regulations on the use of ODA and concessional loans from the state
budget for the program/project, including:
a) Full grant of 100% of the loan proceeds;
b) Partial on-lending at the predetermined rate;
c) Full on-lending.
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10. Project
means a set of proposals that correlate in order to achieve one or more
specified goals, and is implemented in a specified area within a predetermined
time period and based on defined resources.
Technical assistance project means a project
aimed to assist in study into policies, institutions, professions, improvement
of capacity through activities, such as provision of domestic and foreign
experts, training, provision of equipment and materials, study visits, trips,
domestic and overseas conventions, provision of equipment, development of
demonstration model, preparation and support for execution of the investment
project. Technical assistance projects are
comprised of independent technical assistance projects and technical assistance
projects making preparations for investment projects.
11. Program/project
proposal means a document describing the setting, necessity, objectives,
scope, main outcomes, expected execution duration, estimated total investment
and capital structure, preliminary assessment of economic, social and
environmental impacts (if any), proposed domestic financial mechanism, debt
repayment plan; impacts on the mid-term investment plan of the managing agency
(with respect to public investment programs/projects).
12. International
treaty on ODA or concessional loans means an international treaty defined
by the Law on Treaties on the receipt, management and use of ODA and
concessional loans, which can be either:
a) Framework international treaty on ODA or
concessional loan, which is an international convention related to a strategy,
policy and framework for cooperation, prioritized fields; principles and
standards binding upon the provision and use of ODA or concessional loans;
commitment on ODA or concessional loans for one or several years, and other
matters agreed upon between its signatories;
b) A specific international treaty on ODA or
concessional loan, which is an international convention on specific matters
related to the targets to be attained from, activities involved in, duration
for implementation thereof, achievements; conditions for sponsoring, capital,
capital structure, financial requirements of a loan and loan repayment
schedule; management formalities; duties, responsibilities and powers of the
parties towards management of the program/project funded by ODA or concessional
loan, and other matters agreed upon between the signatories.
13. Agreement
on ODA or concessional loan means a written arrangement on ODA or
concessional loan concluded in the name of the Government of Socialist Republic
of Vietnam and is not an international treaty. Such an agreement can be either:
a) A framework agreement, which is an agreement
related to a strategy, policy and framework for cooperation, prioritized
fields; principles and standards binding upon the provision and use of ODA or
concessional loans; commitment on ODA or concessional loans for one or several
years, and other matters agreed upon between its signatories;
b) A specific agreement, which is an agreement on
ODA or concessional loan related to the targets to be attained from, activities
involved in, duration for implementation thereof, attained outcomes; conditions
for sponsoring, capital, capital structure, financial requirements of a loan
and loan repayment schedule; management formalities; duties, responsibilities
and powers of the parties towards management of execution of the
program/project funded by ODA or concessional loan, and other matters agreed
upon between the signatories.
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15. Service
bank means a bank selected by the user (project owner) to perform business
transactions for ODA or concessional loan-funded projects, based on judgements
about banks that are qualified as service banks for projects run by the State
Bank of Vietnam.
16. Non-project
assistance means a method of providing the ODA grant in the form of a
separate aid without constituting a single project. The aid can be cash, goods
or experts carrying out one of the activities, such as conferences, seminars,
training, research, and surveys.
17. Decision on
implementation policy for a technical assistance project or a non-project
assistance funded by the ODA grant (hereinafter referred to as execution
policy) means a Prime Minister’s written decision on policy for execution
of a technical assistance project or non-project assistance (except technical
assistance projects funded by the ODA grant that make preparations and provide
assistance for execution of investment projects). Such written decision should
contain the following main information: name of the project/non-project
assistance, the foreign donor or co-donor; name of the managing agency; targets;
total investment amount. Implementation policy
decision serves as a basis for the managing agency’s cooperation with the
foreign donor on approval of technical assistance project or non-project
documentation.
18. Document of
a technical assistance project or non-project assistance funded by the ODA
grant (hereinafter referred to as project document) means any document that
describes the context, necessity, targets, content, primary activities,
execution duration, expected economic, social and environmental effects, total
capital, capital sources and structure, other resources, sponsoring method, the
foreign donor’s conditions (if any), approaches for management of execution of
projects approved by the managing agency as a basis for execution of the technical
assistance project or non-project assistance.
19. ODA or
concessional loan means capital provided by a foreign donor for the State
or the Government of Socialist Republic of Vietnam to assist in development,
assurance of welfare and social security, which is either:
a) ODA grant, which is an ODA financing, the
refund of which to the foreign donor is not required, and which is provided in
the form of an independent project or in combination with investment projects
funded by ODA or foreign concessional loans;
b) ODA loan, which is a foreign loan with at
least 35% grant element if the loan is tied to mandatory procurement of goods
or services as required by the foreign donor, or at least 25% grant element if
it is an untied aid. Calculation of the grant element is specified in Appendix
I hereto;
c) Concessional loan, which is a foreign
loan that sets terms and conditions that are more favorable than those of a
commercial loan, but has the grant element of which is lower than that of an
ODA loan mentioned in point b hereof.
20. Counterpart
fund means capital contributed on the Vietnam’s side (in cash or in kind)
in a program/project funded by ODA or concessional loan in order to prepare for
and execute the program/project. Counterpart fund is provided by the central
government budget, the local government budget or the project owner, or
contributed by the beneficiary, or other lawful capital source.
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22. Surplus fund
is the amount of ODA or concessional loan from the foreign donor that come into
existence during the period of implementation of a program or project,
including post-bidding excess capital, excess capital arising due to exchange
rate changes, unused reserve capital and other excess funds.
23. Emergency aid
means an ODA or concessional loan provided to Vietnam by the foreign donor for
relief and mitigation of natural disaster consequences that are not covered by
the Government's regulations on acquisition, management and utilization of
international emergency aid for natural disaster relief and recovery; disaster
relief, disease prevention; performance of urgent national defense, security
and diplomatic tasks in accordance with decisions of competent authorities.
Article 4. Methods for
provision of ODA and concessional loans
Methods for provision of ODA and concessional loans
include:
1. Program.
2. Project.
3. Non-project.
4. Budget support.
Article 5. Priority use of ODA
and concessional loans
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2. ODA loans shall
be prioritized for programs and projects in the fields of health, education,
vocational education, climate change adaptation, environmental protection,
essential economic infrastructure with no direct cost recovery possibility.
3. Concessional
loans are prioritized for on-lending programs and projects in accordance with
the Government’s regulatory provisions on on-lending of foreign ODA and
concessional loans; programs and projects funded by the state budget in the
field of socio-economic infrastructure development.
4. Other priority
cases shall comply with the Prime Minister’s decision on the Orientations to
attract, manage and utilize foreign donors’ ODA and concessional loans from
time to time.
Article 6. Contents and basic
rules for state management of ODA and concessional loans
1. Scope of state
management for ODA and concessional loans:
a) Formulate, promulgate and organize the
implementation of legislative documents on management and use of ODA and
concessional loans;
b) Formulate and implement Proposals for
attracting, managing and using ODA and concessional loans in each stage to
facilitate the implementation of 5-year socio-economic development plans;
measures and policies to effectively manage and use such funding sources;
c) Supervise and provide information about
management and use of ODA and concessional loans;
d) Monitor, evaluate, and inspect the management
and use of ODA and concessional loans according to regulatory provisions.
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a) ODA and concessional loans shall be used to
finance capital expenditures only, and are not available for recurrent
expenditures. Foreign loans must not be used
to carry out activities, such as training or drilling for capacity building,
except transfer of technologies and skills in operating equipment and
machinery; make study visits or trips; pay taxes, fees, and interest expenses
on loans; purchase cars, except for specialized cars decided by competent
authorities, reserve supplies and equipment for operation phase after the
project is completed, except for special ones decided by competent authorities
in accordance with legislative regulations; pay compensation, support and
resettlement expenses; pay operating expenses of the Project Management
Unit;
b) The Government shall unify the state management
of ODA and concessional loans on the basis of ensuring the effective use of
capital and solvency; decentralization associated with accountability, power,
managerial capability of ministries, central and local authorities; ensuring
coordinated management, supervision and evaluation of concerned agencies in
accordance with applicable laws;
c) Ensure information disclosure and transparency;
promote accountability in terms of policies, procedures for raising, managing
and using ODA and concessional loans among industries, sectors and localities;
and the effectiveness of using ODA and concessional loans;
d) Disclose information about cooperation policies,
priority fields of foreign donors on the Government's web portals (chinhphu.vn;
mpi.gov.vn; mof.gov.vn; mofa.gov.vn);
dd) Prevent and combat corruption, losses and
wastefulness in management and use of ODA and concessional loans; prevent and
impose punishments for these acts in accordance with law;
e) Methods of determining capital expenditures
funded by the state budget: Capital
expenditures are determined in compliance with the provisions of the Law on
Public Investment, the Law on State Budget, the Law on Construction and other
relevant legislative documents.
Article 7. Principles of
applying domestic financial mechanism for ODA and concessional loans
1. For
programs/projects funded by central government budget, the method of full grant
of foreign ODA loans and concessional loans from the central budget shall be
applied.
2. For investment
programs/projects funded by local government budget, the method of partial or
full on-lending of foreign ODA and concessional loans as prescribed by
legislation on on-lending of the Government’s foreign ODA loans and
concessional loans shall be applied.
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3. For investment
programs/projects with full or partial cost recoverability, the method of full
or partial on-lending of foreign ODA and concessional loans from the central
budget as prescribed by legislation on on-lending of the Government’s foreign
loans shall be applied.
4. For ODA grants,
including those associated with loans, ODA grants for investment projects,
technical assistance projects (e.g. independent projects, preparatory and
supporting projects), and non-projects, the method of full grant of 100% of the
loan proceeds shall be applied.
Article 8. Order and procedures for management and use of ODA
and concessional loans
1. For
programs/projects funded by ODA and concessional loans:
a) Draft, select and approve the program/project
proposal;
b) Send an official notice of the approved
program/project proposal to the foreign donor;
c) Draft, appraise and decide on the investment
policy for the program/project;
d) Officially notify the foreign donor of the investment
policy decision of the program or project and the sponsoring request;
dd) Draft, appraise and decide on investment in the
program/project;
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g) Carry out the performance management and
financial management;
h) Complete and transfer the results.
2. For technical assistance
projects and non-project assistance funded by ODA grants:
a) Formulate project documents and non-project
documents;
b) Decide on the implementation policy for projects
and non-project assistance specified in clause 1 of Article 23 herein;
c) Appraise and approve project documents and
non-project documents;
d) Officially notify the foreign donor of the
approval the project/non-project document and the request for sponsoring;
e) Depending on foreign donor’s regulations, one of
the following procedures shall be performed: Sign international treaties,
agreements on ODA grants; sign aide memoire on technical assistance projects
and non-project assistance;
e) Carry out the performance management and
financial management;
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3. For budget
support:
a) Make documents and records on the budget
support;
b) Decide on the policy to receive the budget
support;
c) Sign international treaties, agreements on ODA
and concessional loans for the budget support;
d) Carry out the performance management and
financial management;
dd) Complete and transfer the results.
4. For
programs/projects funded by mixed capital: The
managing agency shall follow the order and procedures applied to the programs
and projects funded ODA and concessional loans as specified in clause 1 of this
Article.
5. Programs/projects
following streamlined procedures:
a) Emergency investment projects funded by ODA
grants shall be subject to regulations laid down in Article 42 in the Law on
Public Investment;
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Article 9. Policy to receive
the budget support
1. Order and
procedures for deciding the policy to receive general budget support are
prescribed as follows:
a) The Ministry of Finance shall be in charge of
formulating the document on budget support which specifies the central budget’s
balance, proposed plans to cover budget deficit; shall adhere to the principles
of budget support loans used as capital expenditures, and get comments from the
Ministry of Planning and Investment and other concerned agencies;
b) On the basis of synthesizing these comments, the
Ministry of Finance shall be in charge of reporting to the Prime Minister on
the necessity, objectives, socio-economic efficiency, total capital, funding
sources and structure, conditions for receiving budget support, benefits and
obligations, funding methods and arrangements for management;
c) The Prime Minister shall consider and decide on
the policy to receive the budget support, which will serve as a basis for
negotiation, signing and receipt of the general budget support as per
regulations.
2. Order and
procedures for decision on the policy to receive the central budget support for
implementation of the national target programs approved by competent
authorities shall be subject to the following regulations:
a) Upon receipt of the decision on approval of the
policy for investment in the national target program, the managing agency of
the national target program sends an Official Letter to the Ministry of
Planning and Investment and Ministry of Finance, enclosing the Document on the
budget support, clearly specifying the context, necessity,
targets, total fund, funding sources and
structure, other resources; conditions for
receiving the budget support, benefits and
obligations; funding methods and arrangements for
management; plans to use loans to serve the objectives of the national
target program; principles, criteria, list of the projects funded by the budget
support, plans to assign loan use plans to ministries, central and local authorities
as a basis to allocate midterm and annual public investment capital;
b) The Ministry of Finance evaluates the level of
concession, impacts, financial mechanism of the loan; capability to receive the
budget support for accomplishment of targets determined in the national target
program; conditions for receiving the budget support, and sends the evaluation
report to the Ministry of Planning and Investment;
c) After incorporating opinions of the Ministry of
Finance referred to in point b of this clause and opinions of concerned
agencies, the Ministry of Planning and Investment takes the lead and send a
report to the Prime Minister to seek consent to the policy to receive the
central budget support for implementation of the national target program,
including the principles, criteria, financial mechanism, list of projects
funded by that budget support, plans to assign loan use plans to ministries,
central and local authorities;
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dd) According to the Prime Minister’s decision, the
managing agency of the project carries out procedures for appraising and
deciding to invest in a particular project funded by the budget support that is
part of the national target program as provided by relevant law.
Article 10. Participation in
regional programs and projects
1. In cases where
a managing agency of a regional program or project has not been identified,
based on the foreign donors' proposal on the participation in regional programs
and projects, the Ministry of Planning and Investment shall take the lead and
cooperate with concerned agencies in seeking the Prime Minister’s approval of
Vietnam’s participation in such regional programs/projects and designation of
the managing agency in charge.
2. In cases where
a managing agency of a regional program or project has been identified, the
managing agency shall send the Ministry of Planning and Investment an official
letter, enclosing the regional program/project document of the foreign donor,
clearly specifying the interests and duties of Vietnam as a participant. The
Ministry of Planning and Investment shall take the lead and cooperate with
concerned agencies in seeking the Prime Minister’s approval of Vietnam’s
participation in such regional program/project.
3. Where a foreign
donor provides ODA or concessional loan to develop and implement a
program/project within the framework of a regional program/project, based on
the Prime Minister’s decision on Vietnam’s participation in regional
programs/projects as per clause 1 and 2 of this Article, the managing agency
shall elaborate, appraise and make investment policy decision and investment
decision for the programs/projects funded by ODA and concessional loans in
accordance with Chapter II herein.
Article 11. Private sector access to ODA and concessional loans
1. The private
sector may access ODA and concessional loans in accordance with policies on
provision of ODA and concessional loans of foreign donors.
2. Methods for the
private sector to access and use ODA and concessional loans:
a) Access to ODA and concessional loans that
ministries, central authorities and provincial People's Committees use to
finance project preparation and bidding for investor selection, or finance the
state contribution in PPP projects in accordance with applicable provisions on
PPP and specific international treaties, specific agreements on ODA and
concessional loans;
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Chapter II
DRAFTING, APPRAISING,
AND MAKING INVESTMENT POLICY DECISION AND INVESTMENT DECISION FOR
PROGRAMS/PROJECTS FUNDED BY ODA, CONCESSIONAL LOANS; INVESTMENT PROGRAMS,
PROJECTS FUNDED BY ODA GRANTS AND TECHNICAL ASSISTANCE PROJECTS FUNDED BY ODA
GRANTS FOR INVESTMENT PROJECT PREPARATION
Section 1. DRAFTING, APPRAISING
AND DECIDING ON INVESTMENT POLICY FOR THE PROGRAM/PROJECT
Article 12. Decision making
authority on investment policy for the programs/projects funded by ODA and
concessional loans
1. a) The power to
issue an investment policy decision for a national target program, project of
national importance and public investment program funded by ODA and
concessional loans shall be subject to the regulations laid down in clause 1
and 2 of Article 17 in the Law on Public Investment.
2. The Prime
Minister shall be accorded authority to decide on investment policy for the
following programs/projects:
a) Investment programs and projects funded by ODA
loans and concessional loans, except for those specified in clause 1 of this
Article;
b) Investment programs and projects funded by ODA
grants in the following cases: Category A and Category B investment programs
and projects; programs and projects accompanied by policy frameworks; programs
and projects in the fields of security, national defense and religion;
sector-wide approach programs; procurement of goods subject to permission of
the Prime Minister;
c) Technical assistance projects funded by foreign
donors’ ODA and concessional loans to prepare investment projects.
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Article 13. Proposal for
programs/projects funded by ODA and concessional loans
1. The Prime
Minister shall be accorded authority to approve program/project proposals.
2. Order and
procedures for approval of a program/project proposal:
a) Ministries, central and local regulatory
authorities prepare the proposal for the program/project funded by foreign ODA
and concessional loan for submission to the Ministry of Planning and
Investment, the Ministry of Finance and concerned agencies in accordance with
law; and give clear explanations as to why they make the proposal for the tied
loan of the foreign donor (if any);
b) The Ministry of Finance takes the lead for
determining the grant elements, evaluating the impact of new loans on the
public debt safety thresholds, determining applicable domestic financial
mechanism, and reporting to the Prime Minister in accordance with the Law on
Public Debt Management and concurrently send to the Ministry of Planning and
Investment;
c) The Ministry of Planning and Investment sends a
written request to consult concerned agencies on the program/project proposal. After incorporating the comments of the Ministry of
Finance as prescribed in point b of this clause and the comments of concerned
agencies, the Ministry of Planning and Investment evaluates the necessity of
the programs/projects; makes the preliminary assessment of the feasibility,
socio-economic effectiveness, environmental impacts (if any), and the impacts
of the programs/projects on the midterm public investment plans; thereby
selecting the suitable program/project proposals and submitting them to the Prime
Minister for approval;
d) The Prime Minister considers and approves the
program/project proposal against the following aspects:
Name of the program/project; name of the foreign donor and co-donor (if
any); name of the managing agency; binding terms and conditions of the foreign
donor (if any), expected objectives and scale; expected duration; total
estimated investment and fund structure; domestic financial mechanism;
on-lending method; proposals to use ODA and concessional loan for purchase of
reserve supplies and equipment (if any) and other relevant contents;
dd) The Ministry of Planning and Investment
officially notifies the foreign donor of the Prime Minister’s decision on
approval of the program/project proposal.
3. Dossier and
time limit for reviewing the program/project proposal:
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b) The number of dossiers to be submitted to the
Ministry of Planning and Investment is 08 sets;
c) The number of dossiers to be submitted to the
Ministry of Finance is 03 sets;
d) The time limit for review and submission of the
program/project proposal to the Prime Minister is 45 days from the date that
Ministry of Planning and Investment and the Ministry of Finance receive
complete and valid dossiers.
Where the dossier is invalid or the content of the
program/project proposal does not conform to the provisions of clause 3 of this
Article, the Ministry of Planning and Investment and the Ministry of Finance
must send their written feedback to request the managing agency to fine tune
the program/project proposal within 05 days.
4. Criteria for
selection of the program/project proposal:
a) Compatibility with the relevant socio-economic
development strategies or master plans in accordance with law on socio-economic
development master plans and plans; public debt safety thresholds and repayment
capacity; orientation for attraction of ODA and concessional loans; policies
and orientations for priorities in ODA and concessional loan provision of
foreign donors;
b) Assurance of socio-economic and environmental
effectiveness and sustainability;
c) Compatibility with the availability of ODA,
concessional loans, and counterpart fund;
d) No overlap with the contents of
programs/projects whose proposals, investment policies or investment decisions
have already been approved by competent authorities.
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1. Order and
procedures for making investment policy decisions for national target programs
or projects of national importance funded by ODA and concessional loans shall
be subject to the regulations laid down in clause 5 of Article 25 in the Law on
Public Investment.
2. Order and
procedures for making investment policy decisions for public investment programs
funded by ODA and concessional loans under the Government’s decision-making
authority shall be subject to the regulations laid down in Article 22 and
clause 6 of Article 25 in the Law on Public Investment.
3. Order and
procedures for making investment policy decisions for category A projects
funded by ODA and concessional loans shall be subject to the regulations laid
down in Article 23 and clause 7 of Article 25 in the Law on Public Investment.
4. Order and
procedures for making investment policy decisions for programs/projects funded
by ODA and concessional loans under the Prime Minister’s decision-making
authority, except category A projects, shall be subject to the regulations laid
down in clause 8 of Article 25 in the Law on Public Investment, specifically as
follows:
a) The managing agency sends the Ministry of
Planning and Investment an investment policy proposal report;
b) The Ministry of Planning and Investment presides
over evaluating the investment policy proposal report, funding sources and availability,
and submitting it to the Prime Minister;
c) The Prime Minister considers granting the
investment policy decision.
5. Order and
procedures for making investment policy decisions for programs/projects under
the decision-making authority of heads of managing agencies shall be subject to
the regulations laid down in clause 9 of Article 25 in the Law on Public
Investment, specifically as follows:
a) The managing agency consults the Ministry of
Planning and Investment, the Ministry of Finance and other concerned agencies
about the investment policy proposal report;
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6. The Ministry of
Planning and Investment officially notifies the foreign donor of the decision
of approval of the investment policy for the program/project, and the funding
request.
7. In case there
are changes to the pre-feasibility study report and the report on investment
policy proposal compared to the contents of the approved program/project
proposal, the managing agency shall supplement explanation on the changes
compared to the approved program/project proposal in the letter of transmittal
for appraisal of the feasibility study report and report on investment policy
proposal for the program/project as prescribed in point b of clause 1 of
Article 15 in this Decree.
8. The preliminary
assessment of environmental impacts is part of the pre-feasibility study report
or investment policy proposal report. The competent authority shall consult
that preliminary assessment of environmental impacts to decide on the
investment policy in accordance with Article 99 in the Law on Public
Investment. Preliminary environmental impact assessment shall be
subject to the Government's regulations elaborating on implementation of
several Articles of the Law on Public Investment.
Article 15. Dossiers, contents
and time limit for appraisal of feasibility study reports and reports on
investment policy proposals for the programs/projects funded by ODA and
concessional loans
1. Appraisal
dossiers of feasibility study report and report on investment policy proposal
for the program/project funded by ODA and concessional loan:
a) A letter of transmittal requesting the competent
authority’s approval of the investment policy for the program/project using the
sample given in Appendix IVa to this Decree;
b) The written approval of the program/project
proposal from the competent authority;
c) Report on the internal appraisal results of the
managing agency regarding the investment policy of the program/project funded
by ODA or concessional loan;
d) The pre-feasibility study report or the report
on investment policy proposal for the program/project that is prepared using
the sample given in Appendix IIIa, IIIb and IIIc to this Decree;
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e) Comments of the provincial People’s Council on
category A projects funded by ODA and concessional loans of which
pre-feasibility study report is prepared by the provincial People’s Committee
in accordance with point c of clause 1 of Article 23 in the Law on Public
Investment;
g) Other relevant documents (if any).
2. The required
minimum number of appraisal dossiers to be submitted to the Appraisal Council
or the lead appraising agency is 10 sets.
3. Appraisal
contents of the investment policy for public investment programs funded by ODA
and concessional loans:
a) Alignment with criteria for determination of
public investment program;
b) Regulatory conformance of the dossier submitted
for appraisal;
c) Alignment with objectives of regional and
territorial socio-economic development strategies, plans; relevant master plans
in accordance with the laws on planning;
d) The contents specified in Article 29 of the Law
on Public Investment, including basic details of the program as follows:
objectives, scope, scale, beneficiaries, duration, time lines and fund
allocation plan; funding sources and availability; mobilization of funding and
other resources;
dd) Socio-economic effectiveness, environmental
protection and sustainable development.
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a) Necessity of investment;
b) Regulatory conformance of the dossier submitted
for appraisal;
b) Alignment with objectives of the relevant
strategies, plans and master plans in accordance with law on planning;
d) Alignment with project classification criteria
in accordance with the Law on Public Investment;
dd) The contents specified in Articles 30 and 31 of
the Law on Public Investment, including appraisal of basic details of the
project, such as objectives, scale, form of investment, scope, location, area
of land to be used, duration, time lines, plan for selection of main
technologies, environmental protection solution, funding sources and
availability; cost recovery and debt repayment possibility for loans; and fund
allocation plan;
e) Socio-economic effectiveness, environmental
protection and sustainable development.
5. The lead
appraising agency for the pre-feasibility study report and report on investment
policy proposal for programs and projects shall consult agencies assigned to
appraise funding sources and availability in accordance with Article 33 of the
Law on Public Investment in the process of appraising pre-feasibility study
report and report on investment policy proposal.
6. Time limits for
appraising the report on investment policy proposal and pre-feasibility study
report of the program or project from the date the Appraisal Council or the
lead appraising agency receives complete and valid dossier are as follows
a) National target programs: No more than 60 days;
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c) Category A projects: No more than 45 days;
d) Projects other than those prescribed in point a,
b and c of this clause: No more than 30 days;
In case the dossier is invalid or the content of
the pre-feasibility study report or report on investment policy proposal of the
program or project does not conform with the provisions of Article 29, 30 and
31 of the Law on Public Investment, within no later than 10 days from the day
on which the dossier is received, the Appraisal Council or the lead appraising
agency shall send written feedback to request the proposing agency to fine tune
the pre-feasibility study report or report on investment policy proposal.
7. Where it is
necessary to extend time limit for appraisal of feasibility study report and
report on investment policy proposal for the program/project, the Appraisal Council
or the lead appraising agency shall:
a) Report to the Prime Minister to seek his consent
to the extension of time limit for appraisal of pre-feasibility study reports
and reports on investment policy proposal of programs and projects falling under
the approving competence of the National Assembly, Government, and Prime
Minister;
b) Report to the head of the managing agency to
allow the extension of time limit for appraisal of the report on investment
policy proposal for the programs/projects falling under the investment policy
approving competence of the managing agency;
c) The extended period shall not exceed the
corresponding appraisal time specified in clause 6 of this Article.
8. The Appraisal
Council or the lead appraising agency for pre-feasibility study report of
category A projects and the report on investment policy proposal for the
program or project shall send the appraisal report as per the following
regulations:
a) For public investment programs: Submit it to the
managing agency and competent authority in charge of making investment policy
decision;
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c) For other projects not specified at point a and
b of this clause: Submit it to the appraising agency and competent authority in
charge of making investment policy decision.
Article 16. Dossiers submitted to the competent authority and
time limit for making the investment policy decision for the program/project
funded by ODA and concessional loan
1. Dossiers
submitted to the competent authority for making the investment policy decision
for the program/project funded by ODA and concessional loan, including:
a) Documents specified in clause 1 of Article 15
herein, including the letter of transmittal, the pre-feasibility study report
and report on investment policy proposal specified at points a and b of clause
1 of Article 15 in this Decree have been fine tuned according to the appraisal
report of the Appraisal Council or the lead appraising
agency;
b) The appraisal report by the Appraisal Council or
the lead appraising agency on investment policy for the program/project shall
be prepared using the sample given in Appendix IVb enclosed with this
Decree.
2. The required
number of dossiers submitted to competent authorities to seek their decisions
on investment policies for programs/projects, subject to clause 1 of this
Article, shall be 05 sets.
3. From the date
the competent authority deciding on investment policy receives complete and
valid dossiers, the time limit for making the investment policy decision shall
be as follows:
a) Public investment programs (except national
target programs): No more than 20 days;
b) Category A projects: No more than 15 days;
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4. Within 15 days
from the date the competent authority makes investment policy decision of the
program or project, the managing agency shall send such approved investment
policy to the Ministry of Planning and Investment and the Ministry of Finance.
Article 17. Prior activities
Prior activities performed in the phase of
preparation for implementation of programs/projects funded by financing for
investment preparation, including:
1. Formulate a
resettlement policy framework and submit it to a competent authority for
approval in the process of appraising the pre-feasibility study report or the
program/project document, and making investment decision;
2. Prepare a
contractor selection plan; prepare dossiers of invitation for expression of
interest, dossiers of invitation for pre-qualification, bidding documents, and
requests for proposals.
Article 18. Major contents of
the investment policy for the programs/projects funded by ODA and concessional
loans
1. Name of the
program/project.
2. Name of the
project donor and co-donor.
3. Name of the
managing agency.
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5. Location.
6. Project
execution duration.
7. Total
investment and fund structure (denominated in Vietnamese dong, converted into
base currency), including:
a) ODA grants, ODA loans, concessional loans;
b) Counterpart fund.
8. Domestic financial
mechanism and on-lending method.
9. Implementation
method (as for projects funded by ODA grants).
10. Activities
funded by ODA loans or concessional loans that are other than those prescribed
in clause 2 of Article 6 herein (if any).
Article 19. Amendments to the
investment policy for the programs/projects funded by ODA and concessional
loans
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2. For public
investment programs, projects of national importance:
a) Public investment programs to which amendments
lead to changes to major contents of the investment policy decision as provided
in Article 18 herein: Comply with the regulations laid down in point a of
clause 2 of Article 34 in the Law on Public Investment;
b) Projects of national importance to which
amendments lead to changes to major contents of the investment policy decision
as provided in Article 18 herein: Comply with the regulations of the Law on
Public Investment and the Government’s Decree on order and procedures for
appraisal of projects of national importance, supervision and assessment of
investment.
3. For
programs/projects falling under the Prime Minister's delegated authority to
make investment policy decisions:
a) Where the adjustment of the project
implementation duration does not change the remaining main contents of the
investment policy decision; the decreasing adjustment of ODA loan or
concessional loan incurs financial obligations and does not change the
remaining main contents of the investment policy decision, the managing agency
shall send a written document and report on the reasons for such adjustment in
order for the Ministry of Planning and Investment to incorporate opinions of
the Ministry of Finance for submission to the Prime Minister to seek his
decision;
b) Where the amendment to a program or project
leads to a change in the main contents of the decision on investment policy,
other than provided in point a of clause 3 of this Article, the managing agency
shall adjust the investment policy according to the order and procedures
specified in clause 4 of Article 14 in this Decree.
Required components of the request dossier to be
submitted to the competent authority and the time limit for making the decision
on amendment to the investment policy for the programs/projects shall be
subject to Article 15 and 16 herein. The followings should be clarified: Reasons for amendment to the investment policies
for the program/project; amendments corresponding to main contents of the
pre-feasibility study report or investment policy proposal report.
4. As for the
program/project under the authority to decide on the investment policy of the
head of the managing agency, if any amendment leads to any change in main
contents of the investment policy decision, the managing agency shall amend the
investment policy according to the order and procedures specified in clause 5
of Article 14 herein.
5. Where total
investment in the program/project is adjusted due to exchange rate
fluctuations; the reduction in ODA and concessional loan does not incur
financial obligations and lead to any change in the remaining main contents of
the investment policy decision referred to in Article 18 herein, the managing
agency shall not follow the order and procedures for decision on amendment to
the investment policy.
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Article 20. Decision-making
authority on investment in the programs/projects funded by ODA and concessional
loans
1. The Prime
Minister shall be accorded authority to issue the decision on investment in the
following programs and projects funded by ODA and concessional loans:
a) National target programs and projects of
national importance for which the investment policy decision is made by the
National Assembly;
b) Public investment programs that have already
obtained investment policy decisions from the Government;
c) Public investment programs and projects funded
by ODA and concessional loans of foreign donors in the national defence,
security and religion fields and other programs/projects subject to the
Government’s regulations.
2. The head of the
managing agency shall make investment decision for programs and projects funded
by ODA or concessional loans that are not prescribed in clause 1 of this
Article and take responsibility for the investment efficiency of programs and
projects.
Article 21. Procedures for
drafting, appraising and making decision on investment in the programs/projects
funded by ODA and concessional loans
1. Comply with the
regulations laid down in Article 41 in the Law on Public Investment.
2. The feasibility
study reports of the programs, projects are prepared in accordance with Article
44 of the Law on Public Investment and related regulations, taking into account
the contents of the sample provided by foreign donors, while ensuring the
consistency with the investment policy decision and harmonizing the procedures
between Vietnam and foreign donors.
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a) In case the program/project is eligible for full
or partial on-lending of ODA or concessional loan from the state budget, the
project owner shall enclose proofs of the financial capacity, debt repayment
plans and other documents prescribed by regulations of law on public debt
management;
b) Documents related to the program/project in
foreign language must have attached Vietnamese translations;
c) Within 15 working days from the day on which a decision
on investment in the program/project is issued by a competent authority, the
managing agency shall notify the foreign donor and project owner of the
decision, and send it to the Ministry of Planning and Investment, the Ministry
of Finance and relevant agencies (original or notarized copy) together with the
feasibility study report which has been approved and bears the seal of the
managing agency for their implementation supervision and cooperation.
Article 22. Amendments to the
programs and projects funded by ODA and concessional loans
1. The competence
to make amendments to programs/projects shall be subject to clause 3 of Article
43 in the Law on Public Investment.
2. Amendments to
the programs and projects are made in the cases specified in clauses 1 and 2 of
Article 43 in the Law on Public Investment.
3. For projects of
national importance: Comply with the
regulations of Article 43 in the Law on Public Investment and the Government’s
Decree on the order and procedures for appraisal of projects of national
importance, supervision and evaluation of investment.
4. For category A,
B and C programs/projects:
a) Contents of, order and procedures for
formulating and appraising amendments to the programs/projects shall comply
with Article 43 in the Law on Public Investment and the Government's Decree
elaborating on a number of Articles of the Law on Public Investment;
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5. Where
amendments to the contents of programs/projects in progress result in the amendment,
complement or renewal of specific international treaties, agreements on ODA and
concessional loans:
a) Based on the revised investment policy decision
and investment decision in the program/project approved by the competent
authority, the managing agency shall cooperate with the proposing agency to
sign the updated specific international treaties and specific agreements on ODA
and concessional loans;
b) Where amendments to the contents of
programs/projects do not result in the amendment to the main content of the
investment policy decision, the managing agency shall adjust the investment
decision by incorporating opinions of the Ministry of Planning and Investment,
the Ministry of Finance, and relevant agencies as a basis to amend, update and
renew specific international treaties and specific agreements on ODA and
concessional loans.
Chapter III
FORMULATING, APPRAISING,
DECIDING ON POLICY FOR IMPLEMENTATION AND APPROVING DOCUMENTS OF TECHNICAL
ASSISTANCE PROJECTS AND NON-PROJECT ASSISTANCE FUNDED BY ODA GRANTS
Article 23. Authority to
approve the policy for implementation and documents of the technical assistance
project and non-project assistance
1. The Prime
Minister shall be empowered to approve the policy for implementation of
technical assistance projects and non-project assistance funded by ODA grants
in the following cases: Projects associated with a policy framework; projects
or non-project in the field of national defense, security and religion;
procurement of goods subject to the Prime Minister’s permission in accordance
with relevant law.
2. The head of the
managing agency shall:
a) Approve the documents of the technical
assistance project, non-project assistance based on the implementation policy
decision of the Prime Minister for the cases specified in clause 1 of this
Article; the Prime Minister’s decision on policy for participation in the
regional programs/projects;
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Article 24. Preparation of
documents of technical assistance projects and non-project assistance
The managing agency shall cooperate with foreign
donors in formulating the documents of projects and non-projects by using the
samples given in Appendix V and VI herein.
Article 25. Order and
procedures for decision on investment policy for technical assistance projects
and non-project assistance under the Prime Minister's decision-making authority
1. The managing
agency shall send the competent authority a written request for approval of the
policy, enclosing project or non-project documents sent to the Ministry of
Planning and Investment.
2. Within 05
working days from the day on which valid documents prescribed in clause 1 of
this Article are received, the Ministry of Planning and Investment shall send
written enquiries to relevant authorities in order for them to respond within
10 days from the receipt of the enquiries.
3. Within 05 days
from the day on which the written comments are received from concerned
agencies, the Ministry of Planning and Investment shall incorporate them into a
report to be submitted to the Prime Minister to seek his decision.
4. The Prime
Minister shall consider granting the investment policy decision for the project
or non-project, including the following information:
a) Name of the project or non-project;
b) Donor, co-donor (if any):
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d) Total fund and funding structure (e.g. ODA
grants and counterpart fund);
dd) Implementation method.
5. In case the
project or non-project documents are found to be incomplete after incorporating
those comments, the Ministry of Planning and Investment shall request the
managing agency to complete them.
Article 26. Order and
procedures for appraising and deciding approval of technical assistance project
and non-project documents
1. Appraisal of
the projects and non-projects referred to in clause 1 of Article 23 of this
Decree by their managing agencies is not required. The
head of the managing agency shall decide whether to approve the project or
non-project documents according to the decision on implementation policy.
2. Regarding
projects and non-project assistance other than those specified in clause 1 of
Article 23 of this Decree:
a) The managing agency shall preside over the
appraisal process; send written enquiries, enclosing project or non-project
documents and other relevant documents (if any) to the Ministry of Planning and
Investment, the Ministry of Finance and concerned authorities;
b) Within 10 days from the day on which valid
documents are received, the consulted agencies shall send their written
comments thereon, focusing on the following contents: necessity, key objectives
and outcomes; funding sources and availability, financial mechanisms;
conditions of the foreign donor (if any) and responding capacity of Vietnam;
c) The appraisal contents of the project or
non-project assistance include: the
compatibility of the project and non-project assistance with the specific
development goals of ministries, agencies, localities, implementing agencies
and beneficiaries; the appropriateness of the implementation method; fund and
the availability of fund, financial mechanism; the rationality of funding
structure for major categories; commitments, prerequisites and other conditions
of the foreign donor and the stakeholders (if any); effectiveness, the ability
to apply the results in real practices and sustainability beyond the project or
non-project life cycle; unanimous opinions or discrepancies amongst the
parties;
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dd) Based on the appraisal results, the head of the
managing agency shall decide whether the project or non-project documents are
approved;
e) The appraisal time limit for the project or
non-project document shall not exceed 20 days of receipt of completed and valid
dossiers;
g) Where a project/non-project is funded by an ODA
grant worth USD 200,000 or less, the head of the managing agency may approve
the project or non-project document without having to consult concerned
agencies.
3. After the
project or non-project document has been approved, the managing agency shall
inform the Ministry of Planning and Investment, the Ministry of Finance and
other concerned agencies, enclosing the approved project or non-project
document bearing the affixed seal of the managing agency for implementation
supervision and coordination.
4. Main contents
of the decision on approval of technical assistance project and non-project
document:
a) Name of the project or non-project;
b) Name of the donor and co-donor (if any);
c) Name of the managing agency and project owner;
d) Implementation duration and location;
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e) Arrangements for management;
g) Implementation method;
h) Total fund and funding structure, including ODA
grants (in base currency and VND equivalent) and counterpart funds (in VND);
i) Others.
5. The Ministry of
Planning and Investment shall send an official notice and funding request to
the foreign donor.
Article 27. Revision of the implementation policy
decision and the decision on approval of technical assistance project and
non-project documents
1. For the
implementation policy decision:
a) The managing agency shall deliver to the
Ministry of Planning and Investment the written documents informing the changes
in the contents of the implementation policy decision prescribed in clause 4 of
Article 25 herein, enclosing the revised project or non-project document;
b) The Ministry of Planning and Investment shall
take the lead and consult concerned agencies on relevant changes, and discuss
with the foreign donor on changes in the scale of ODA grant (if any), and
incorporate the comments into a report submitted to the Prime Minister;
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2. For the
decision on approval of the project or non-project document:
a) The managing agency shall send the Ministry of
Planning and Investment, the Ministry of Finance and relevant agencies a
written document to inform them about changes in the contents of the decision
on approval of the project or non-project document, enclosing the updated one;
b) On the basis of the comments of the Ministry of
Planning and Investment, the Ministry of Finance and concerned agencies, the
head of the managing agency shall decide whether to approve these changes;
c) Where a project/non-project is funded by an ODA
grant worth USD 200,000 or less, the head of the managing agency may revise the
decision on approval of the project or non-project document without having to
consult concerned agencies;
d) Where a change in the project or non-project
document leads to disqualification of the approval competence specified in
Article 23 herein, the managing agency shall follow the order and procedures
for decision on the implementation policy stipulated in Article 25 herein;
dd) Regarding projects and non-project assistance
specified in clause 1 of Article 23 of this Decree, the head of the managing
agency shall consult the decision on revision of the implementation policy
prescribed in clause 1 of this Article to decide to approve the changes to the
project or non-project document without having to consult concerned agencies.
Chapter IV
SIGNING OF INTERNATIONAL
TREATIES, AGREEMENTS ON ODA AND CONCESSIONAL LOANS
Section 1. SIGNING OF
INTERNATIONAL TREATIES ON ODA AND CONCESSIONAL LOANS
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1. The basis for
proposing the signing of a framework treaty on ODA or concessional loan is the
result of mobilization, development and cooperation strategies and policies,
priority areas for the use of ODA or concessional loans agreed between Vietnam
and foreign donors, or decisions to approve the investment policy of
programs/projects if specific programs/projects are involved.
2. Basis for
proposal to sign specific international treaties on ODA and concessional loans:
a) For programs/projects funded by ODA,
concessional loans, and programs/projects funded by ODA grants: The approved
feasibility study reports; the decisions on investment in programs/projects;
Prime Minister’s decisions on approval of on-lending (with respect to
appropriate programs/projects);
b) For technical assistance projects and
non-project assistance funded by ODA grants: The decision on approval of
project or non-project documents, and project or non-project documents.
Article 29. Authorities proposing to sign international
treaties on ODA and concessional loans
1. The People’s
Supreme Court, the People’s Supreme Procuracy, State Audit Agency, Ministries,
ministerial agencies, and Governmental agencies, may propose to the Government
conclusion of specific international treaties on ODA grants for their programs
and projects other than those specified in clause 3 of this Article.
2. The Ministry of
Finance may propose to the Government conclusion of framework and specific
international treaties on ODA loans, concessional loans or ODA grants for mixed
programs/projects funded by ODA loans or concessional loans, except for ODA
grants specified in clause 3 and 4 of this Article.
3. The State Bank
of Vietnam may propose to the Government conclusion of specific international
treaties on ODA grants that are not associated with loans granted by
international banks and financial institutions represented by the State Bank of
Vietnam.
4. The Ministry of
Planning and Investment may propose to the Government conclusion of framework
and specific international treaties on ODA grants for programs/projects not
specified in clause 1, 2 and 3 of this Article.
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1. Order and
procedures for signing, amending or renewing international treaties on ODA
financing and concessional loans shall be subject to the regulations laid down
in the Law on International Treaties.
2. In urgent cases
where it is required that international treaties on ODA financing and
concessional loans are signed for the Government and obtain consent from
competent authorities, the negotiation and signing of international treaties on
ODA loans , concessional loans for the Government shall be subject to the
following regulations:
a) According to the provisions of Article 28 of
this Decree and the request of the managing agency, the Ministry of Finance
shall request the foreign donors or lenders to submit draft international
treaties on ODA or concessional loans;
b) The Ministry of Finance shall consult the
Ministry of Foreign Affairs, the Ministry of Justice and relevant agencies on
the draft international treaties on ODA loans and concessional loans. The consulted agencies shall reply in writing to
the Ministry of Finance within 05 days from the date of receipt of complete
consulting dossiers;
b) Based on the comments of concerned agencies, the
Ministry of Finance shall formulate the plans for negotiation of international
treaties on ODA loans and concessional loans and submit them to the Prime
Minister. Transmittal dossiers for negotiation
of international treaties shall be subject to the regulations laid down in
Article 11 in the Law on International Treaties;
d) The Ministry of Finance shall be in charge of,
and coordinate with the Ministry of Foreign Affairs, the Ministry of Justice
and concerned agencies in, negotiating with foreign donors or lenders about
draft international treaties on ODA and concessional loans; promptly reporting
to the Prime Minister on problems that arise in the course of negotiation and
proposing remedial measures;
dd) Based on the negotiation results, the Ministry
of Finance shall seek the Government’s decision to sign international treaties on
ODA loans and concessional loans. Transmittal
dossiers on proposal to sign international treaties shall be subject to the
regulations laid down in clause 1, 2 and 6 of Article 17 in the Law on
International Treaties;
e) Based on the Government’s decision, the Minister
of Finance or the person authorized to act on the Government's behalf shall
sign international treaties on ODA loans and concessional loans with foreign
donors or lenders;
g) Within 10 days from the day on which the
international treaty is signed domestically by both parties, or from the day on
which the mission signing the international treaty abroad arrives in Vietnam,
the proposing agency shall send the Ministry of Foreign Affairs an original
copy of the international treaty; the Vietnamese translation in the event that
the international treaty in foreign language is signed.
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4. Where
programs/projects funded by ODA or concessional loans, which are signed under
multiple international treaties corresponding to the project’s phases:
a) For the international treaty signed for the
first loan: Comply with the provisions of clause 1 or clause 2 of this Article;
b) For the international treaty signed for the
subsequent loans: Based on the managing agency's proposal regarding necessity
of the next loan; ODA loan and concessional loan limits approved by the
competent authorities in the investment decision; project progress and
disbursement results under the signed international treaties, the Ministry of
Finance shall take the lead and coordinate with the managing agency and
concerned agencies in determining the value of the next loan, discuss and agree
with the donors and proceed with the order and procedures specified in clause 1
or clause 2 of this Article.
5. Where an
international treaty requires the legal opinion of the Ministry of Justice,
after receiving complete dossiers in accordance with existing regulatory
provisions on granting legal opinions, the Ministry of Justice shall carry out
procedures for granting legal opinions as per regulations.
Section 2. SIGNING OF AGREEMENTS ON ODA AND CONCESSIONAL LOANS
Article 31. Basis for proposal
to sign agreements on ODA and concessional loans
1. For framework agreements
on ODA and concessional loans: The basis for proposing the signing thereof is
the result of mobilization, development and cooperation strategies and
policies, priority areas for the use of ODA or concessional loans agreed
between Vietnam and foreign donors, or investment decisions of
programs/projects if specific programs/projects are involved.
2. For specific
agreements on ODA and concessional loans: The basis for proposing the signing
thereof is framework international treaties or framework agreements on ODA and
concessional loans (if any) and the decision on investment in the
program/project.
3. For specific
agreements on ODA grants: In case the donor requests to sign, the basis for
signing an agreement on ODA grant is the framework international treaty on ODA
grant (if any) and project-non-project document or feasibility study report
(for investment projects) approved by the competent authorities.
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1. The People’s
Supreme Court, the People’s Supreme Procuracy, State Audit Agency, Ministries,
ministerial agencies, and Governmental agencies, may propose to the Prime
Minister the signing of specific agreements on ODA grants for their programs
and projects, except for those specified in clause 3 of this Article.
2. The Ministry of
Finance may propose to the Prime Minister the signing of framework and specific
agreements on ODA loans, concessional loans or ODA grants for programs/projects
funded by ODA loans or concessional loans, except for ODA grants specified in
clause 3 of this Article.
3. The Ministry of
Planning and Investment may propose to the Prime Minister the signing of
framework and specific agreements on ODA grants for the programs/projects not
specified in clause 1 and 2 of this Article.
Article 33. Order and
procedures for signing, amending, supplementing and renewing agreements on ODA
and concessional loans
1. Order and
procedures for signing of agreements on ODA and concessional loans:
a) According to the provisions of Article 31 of
this Decree and the request of the managing agency, the Ministry of Finance
shall request the foreign donors or lenders to submit draft agreements on ODA
or concessional loans;
b) The Ministry of Finance shall consult the Ministry
of Foreign Affairs, the Ministry of Justice and relevant agencies on the draft
agreements on ODA loans and concessional loans. The
consulted agencies shall reply in writing to the Ministry of Finance within 05
days from the date of receipt of written requests for comments and relevant
documents;
c) The Ministry of Finance shall be in charge of,
and coordinate with the Ministry of Foreign Affairs, the Ministry of Justice
and concerned agencies in, negotiating with foreign donors or lenders about
draft agreements on ODA and concessional loans;
d) Based on the negotiation results, the Ministry
of Finance shall submit proposal to the Prime Minister for decision on signing
the agreement on ODA and concessional loans with the foreign donors or lenders;
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e) Regarding agreements on mixed capital: The
Ministry of Finance shall perform the order and procedures for signing
prescribed under this clause;
g) For programs/projects funded by ODA and
concessional loans, which are signed under multiple agreements corresponding to
the project’s phases: Based on the loan value specified in the respective
framework international treaty already signed, the Ministry of Finance shall be
in charge of, and cooperate with the managing agency and concerned agencies in,
performing the order and procedures for signing prescribed under this clause.
2. Order and
procedures for amending, supplementing and renewing agreements on ODA and
concessional loans shall be as follows:
a) The managing agency shall submit a request to
the Ministry of Finance for amending, supplementing or renewing the agreement
on ODA and concessional loans;
b) The Ministry of Finance shall consult the
Ministry of Foreign Affairs, the Ministry of Justice and concerned agencies on
the request for amending, supplementing or renewing agreements on ODA loans and
concessional loans. The consulted agencies
shall reply in writing to the Ministry of Finance within 05 days from the date
of receipt of written requests for comments and relevant documents;
c) The Ministry of Finance shall report to the Prime
Minister for approval of the content of amendments, supplements and renewal of
the agreements on ODA and concessional loans;
d) Based on the Prime Minister’s decision, the
Ministry of Finance shall proceed with procedures to amend, supplement and renew
the agreement on ODA and concessional loans with foreign donors or lenders;
dd) In case amendments, supplements or renewal of
agreements on ODA and concessional loans lead to changes to the contents of
decision on investment policy for programs and projects that the competent
authority has approved: The managing agency shall adjust the investment policy
in accordance with Article 19 and the investment decision under Article 22
herein before proceeding with the order and procedures for amending, supplementing
and renewing agreements on ODA loans and concessional loans as per point a, c
and d of this clause;
e) In case amendment, supplementation or renewal of
agreements on ODA and concessional loans is closely associated with the
contents of amendments, supplements or renewal of the corresponding framework
international treaty approved by the competent authority, the Ministry of
Finance shall carry out the order and procedures for amending, supplementing or
renewing agreements on ODA or concessional loans as per point c and d of this
clause.
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a) The agency proposing the signing shall discuss
and reach an agreement with the foreign donor on the draft agreement;
b) The agency proposing the signing shall consult
the Ministry of Foreign Affairs, the Ministry of Justice and concerned agencies
on the draft agreement. The consulted agencies shall reply in writing to the
Ministry of Finance within 15 days after receiving written requests for
comments and relevant documents;
c) The agency proposing the signing shall get back
to the foreign donor to finalize the draft agreement and submit it to the Prime
Minister for signing;
d) After obtaining the Prime Minister's approval of
the signing, the head of the agency authorized by the Prime Minister shall sign
the agreements with the foreign donors;
dd) For amendments and supplements to an agreement
on ODA grant: On the basis of synthesizing the comments of the Ministry of
Foreign Affairs, the Ministry of Justice and concerned agencies, the proposing
agency shall submit the draft to the Prime Minister for decision.
4. Where an
agreement on ODA and concessional loan requires the legal opinion of the Ministry
of Justice, after receiving complete dossiers in accordance with existing
regulatory provisions on granting legal opinions, the Ministry of Justice shall
carry out procedures for granting legal opinions as per regulations.
5. In case the
donor does not request to sign agreement on ODA grant, on the basis of the
project/non-project document approved by the competent authority, on the basis
of the project/non-project document approved by the competent authority, the
managing agency or the State Bank of Vietnam (when it involves international
financial institutions and banks where the State Bank of Vietnam acts as the
representative) and the donor exchanges aide memoire on commitment to provide
and receive ODA grant for project and non-project assistance implementation in
accordance with applicable regulatory provisions; and concurrently send an
original copy to the Ministry of Planning and Investment, the Ministry of
Finance and concerned agencies for supervision and coordination.
6. If the donor
requests to sign an agreement on implementation of the project or non-project
assistance, the managing agency shall draft, negotiate and sign the agreement
with the donor on the principle of no contradiction to international treaties,
agreements on ODA and concessional loans and applicable regulatory provisions.
Chapter V
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Article 34. Arrangements for
management over programs/projects/non-project assistance
Depending on the scale, nature, and conditions,
capacity for program/project management, regulations on management of ODA and
concessional loans of the foreign donor, the investment decision maker shall
decide on any of the following arrangements for program/project management:
1. For Investment
programs/projects: Comply with the law on public investment management and
construction investment management.
2. For technical
assistance projects and non-project assistance funded by ODA grants:
a) The managing agency shall directly manage the
project or assign an affiliated unit to act as the project owner and administer
the implementation of the program, project or non-project assistance. For technical assistance projects and non-project
assistance funded by an ODA grant worth USD 200,000 or less, the managing agency
and project owner is not required to establish a Project Management Unit but
may use their own human resource to manage and administer project and
non-project assistance implementation;
b) Foreign donors directly manage the entire
program/project or non-project assistance: Where the program or project
documents or specific international treaties/agreements on ODA and concessional
loans stipulate that foreign donors directly manage the entire
programs/projects or non-project assistance, the head of the managing agency or
project owner shall assign their subordinate units to coordinate with foreign
donors in monitoring the progress and quality, leveraging and using the outputs
of the programs/projects or non-project assistance;
c) Foreign donors directly manage a part of the
programs/projects or non-project assistance: Where the program or project
documents or specific international treaties/agreements on ODA and concessional
loans stipulate that foreign donors directly manage a part of the
programs/projects or non-project assistance and the Vietnamese side manage the
rest, the managing agency or project owner shall decide to establish a Project
Management Unit to manage the work undertaken by the Vietnamese side in
accordance with Vietnam's applicable regulations and commitments with foreign
donors.
3. For other
programs and projects, the managing agency shall decide to apply one of these
following forms:
a) Establishing a new Project Management Unit;
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c) The project owners manage the programs and
projects themselves.
4. Establishing a
Project Management Unit to manage and implement a large-scale program/project,
involving high technology application or related to national defense and
security; a program/project with special funding sources or management model
that needs a Project Management Unit, a program/project that is required to
establish a Project Management Unit under an international treaty or agreement
on ODA and concessional loan.
5. Project owners
shall employ capable personnel to manage and implement small-scale projects and
projects participated by the community.
6. Hire
consultants to manage a part of or the entire implementation of programs and
projects.
Article 35. Project management
1. Within 30 days after
the issuance of the investment decision or the decision on approval of the
project document, the head of the managing agency shall issue a decision to
establish a Project Management Unit by using the sample given in Appendix VII
hereto. In cases where the project owner has
full legal personality, the head of the managing agency may authorize the
project owner to issue a decision on the establishment of the Project
Management Unit (except for specialized Project Management Units, regional
Project Management Units established under the regulations on management of
construction investment).
2. Where a new
Project Management Unit is established under the provisions of point a of
clause 3 of Article 34 in this Decree, the decision to establish a project management
unit shall be enclosed with documents specifying the organizational structure,
functions, tasks, and entitlements of the project management unit; and job
description of some key positions thereof.
3. In case of
using the existing Project Management Unit for the new programs and projects
according to the provisions of point b of clause 3 of Article 34 in this
Decree: Pursuant to the decision on the establishment of the Project Management
Unit, the head of the managing agency or the project owners shall complement
and adjust the functions and tasks of the existing Project Management Unit,
open new account and obtain new seal to manage new programs or projects.
4. Where the
project owners manage the programs/projects on their own account as prescribed in
point c of clause 3 of Article 34 herein, on the basis of the decision of the
head of the managing agency to assign the project owner to manage the project
implementation, within 30 days since the investment decision is issued, the
project owner shall issue the decision to assign additional tasks to the
subordinate unit, individual to perform the management activities in accordance
with the existing regulatory provisions. Accordingly, there must be at least an
officer in charge of management and an officer in charge of financial issues,
who work on a part-time or full-time basis and must have professional skills
and qualifications suitable for the position held.
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Article 36. Responsibilities
and authority of the managing agency in program/project management and
implementation
1. The decision on
organizational structure for the management and implementation of the
program/project, including: project owner; steering committee of the program
and project (if necessary).
2. Approve the
05-year implementation plan for the program/project; compile and approval
annual plans for program/project implementation.
3. Direct the
procurement process in accordance with applicable regulatory provisions,
international treaties, agreements on ODA and concessional loans on
procurement.
4. Organize the
monitoring and inspection of the plan implementation; supervise and evaluate
the performance of implementation and disbursement of funds; ensure progress,
quality and achievement of set objectives in accordance with regulatory
provisions on public investment and regulations on monitoring and evaluation
under this Decree.
5. Bear the
additional costs incurred because of human errors, wastefulness, corruption and
misconducts in management and use of ODA and concessional loans under its
management in accordance with regulations of law on public investment.
6. Perform other
duties and entitlements in accordance with law, specific international treaties
and agreements on ODA and concessional loans for programs/projects.
Article 37. Responsibilities
and authority of project owners in program/project management and
implementation
1. Organize the
structure for program/project management and implementation according to the
decision of the managing agency.
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3. Disburse funds,
manage funds and assets of the programs/projects in case where the project
owners manage and implement the programs/projects by themselves.
4. Formulate and
submit master plans and annual plans for program/project implementation.
5. Formulate
quarterly operation plans serving the management, monitoring and evaluation of
the program/project.
6. Carry out the
procurement process in accordance with applicable regulatory provisions on
procurement, specific international treaties on ODA and concessional loans.
7. Negotiate,
conclude and supervise the implementation of contracts, and resolve
difficulties within their competence.
8. Cooperate with
the local government in compensation for site clearance and resettlement in
accordance with law and the specific international treaty or agreement on ODA
or concessional loan (for construction projects).
9. Organize the
monitoring and assessment of the program/project in accordance with law on
supervision and assessment of public investment and regulations of this Decree,
ensuring progress, quality and achievement of set objectives.
10. Perform
accounting, account finalization and audit of the program/project in accordance
with regulatory provisions; make reports on closing and account finalization of
the program/project; audit and hand-over assets and documents of the
program/project, and ensure compliance with regulations on project closing of
the specific international treaty or agreement on ODA and concessional loans.
11. Take full
responsibility for every loss, wastefulness, corruption, and misconduct that
occurs during the implementation of the program/project if they cause economic,
social, environmental damage, or affect the overall effectiveness of the
program/project.
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13. Perform other
duties and entitlements in accordance with law, specific international treaties
and agreements on ODA and concessional loans for the programs/projects.
14. Take
responsibility to notify the Ministry of Finance of the designated service
banks for its fund withdrawal and disbursement.
15. Bear
responsibility before law and the managing agency within their rights and
obligations prescribed in this Decree and other regulatory provisions.
Article 38. Responsibilities
and entitlements of project management units in program/project management and
implementation
1. Responsibilities
and entitlements of the project management unit are assigned by the project
owner under the decision on project management unit establishment. The project owner may authorize the project
management unit to issue decisions or sign documents within the project owner’s
competence in the process of program/project management and implementation. The
authorization must be specified in the decision to establish project management
unit or made into a specific authorization letter by the project owner.
2. The project
management unit may be assigned to manage multiple programs/projects as long as
it is accepted by the project owner and ensure that: Each program/project is
not interrupted and is managed and accounted for in accordance with applicable
regulatory provisions. If the project
management unit is not capable of some management and supervision tasks, they
may hire consultants to perform such tasks provided that it is accepted by the
project owner.
3. The project
management unit shall perform the tasks assigned by the project owner and be
accountable to the project owner, including:
a) Formulate and submit master plans and annual
plans for program/project implementation;
b) Prepare and implement the program/project;
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d) Disburse funds, manage funds and assets of the
program/project;
dd) Monitor and evaluate the implementation of the
program/project;
e) Prepare the acceptance and transfer of the
completed program/project; finish payment, account finalization and audit work,
transfer assets of the program/project; prepare the completion report using the
sample given in Appendix X hereto and account finalization report of the
program/project; follow regulations on project closing in the applicable
international treaty or agreement on ODA and concessional loan;
g) Perform other tasks assigned by the project owner
within the framework of the program/project.
4. Perform other
duties and entitlements in accordance with law, specific international treaties
and agreements on ODA and concessional loans for the programs/projects.
5. Bear
responsibility before law and the managing agency within their rights and
obligations prescribed in this Decree and other regulatory provisions.
Article 39. Organization and
operation regulations of the project management unit
1. Within 15 days
from the day on which the competent authority issues the decision to establish
the project management unit, the Director of the project management unit shall
submit organization and operation regulations to the managing agency or the
project owner authorized by the managing agency referred to in clause 1 of
Article 35 for approval according to the sample given in Appendix VIII hereto. The managing agency and/or the project owner shall
send these Regulations to the Ministry of Planning and Investment, the Ministry
of Finance, concerned agencies and foreign donors within 05 days from the day
on which the Regulations are approved.
2. With respect to
construction investment programs and projects, the organization and operation
Regulations of the managing agency shall be subject to legislative regulations
on construction.
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a) Appointment to the key positions of the project
management unit shall be made by the managing agency under the decision to
establish the project management unit, including: Director,
Deputy Director (if any), Chief Accountant or Accountant in charge. The Director of the project management unit shall
be accountable to the project owner and/or the managing agency for management
and administration of the project management unit, and implementation of the
project in accordance with law and specific international treaties or
agreements on ODA and concessional loans already signed;
b) Where a new project management unit is founded: Based on the contents, scale, nature, extent of its
operation, and arrangements for management of implementation, the project
management unit must be fully staffed by properly qualified and experienced
members to ensure the effective and sustainable management of implementation of
the projects. The Director of the project
management unit shall propose the organization structure of the project
management unit, which may be composed of functional units in charge of
day-to-day administration, human resource and training, planning, procurement,
finance, monitoring and supervision work in the organization and operation
regulations of the project management unit;
c) Where the project management unit that is in
operation is assigned to manage the new programs/projects: The Director of the project management unit shall
complement and adjust the tasks in the organization and operation regulations
of the project management unit to match assigned duties, and submit revised and
updated tasks to the managing agency and the project owner to seek their
decision;
d) Where the project owner manages the
program/project on their own, the project owner shall assign duties in writing
to subordinate officers to take part in management and implementation of the
programs/projects.
4. Personnel of
the project management unit shall be recruited, appointed and discharged.
Functions, tasks, powers, remuneration package (salaries, bonuses,
allowances,...) are specified according to terms of assignment of jobs
appropriate for positions and relevant law. Nominating,
hiring and appointing officeholders who are not on the payroll of the project
owner or the managing agency to hold posts at the project management unit shall
be aligned with the contents of the program/project document already approved
by the competent authority and comply with relevant law.
5. Seal and
account of the project management unit:
a) The project management unit shall be allowed to
use its own seal according to the regulatory provisions or the seal of the
managing agency or the project owner according to the regulations of the
managing agency or the project owner to serve the management and maintenance of
the program/project;
b) The project management unit shall be entitled to
open Vietnamese dong and/or foreign currency accounts of the programs/projects
at commercial banks or the State Treasury for respective funding sources of the
programs/projects in accordance with regulations of law and specific
international treaties, agreements on ODA and concessional loans already signed
with foreign donors.
6. Operating budget
of the project management unit: The operating
budget of the project management unit shall be allocated by the counterpart
fund for preparation and implementation of the programs or projects specified
in clause 2 of Article 44 in this Decree, or funded by ODA grants in accordance
with the provisions of law and specific international treaties, agreements on
ODA and concessional loans already signed with foreign donors.
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a) Assets of programs/projects assigned by the
managing agency or project owner to the project management unit for management
and implementation of these projects/programs must be used economically,
effectively, and serve correct purposes and beneficiaries in accordance with
law and project documents, specific international treaties or agreements on ODA
and concessional loans already signed with foreign donors;
b) In case where the consultant or consulting
organization or the contractor transferring, donating or assigning the assets
to the project management unit, the project management unit shall send the
managing agency or project owner a written request for management and use
thereof during the course of implementation of the program/project, and
transfer thereof to the managing agency or project owner after the
program/project is completed.
8. Upon completion
of the program/project and dissolution of the project management unit:
a) The deadline for completion of the
program/project funded by ODA or concessional loan is prescribed in the
investment decision, the decision on approval of project documents, specific
international treaty or agreement on ODA and concessional loan already signed
with the foreign donor;
b) Within the maximum duration of 06 months from
completion of the program/project, the project management unit is obliged to
prepare and send the managing agency or the project owner the report on completion
of the program/project in order for the project owner to submit that report to
the managing agency. Program/project completion report shall be made on the
basis of the report on completion of the program/project under law and the
specific international treaty or agreement on ODA and concessional loan;
c) The project management unit shall transfer
assets of the program/project of which the custody is awarded the managing
agency or the project owner by the competent authority in accordance with law;
d) After the completion report or the financial
report of the program/project is approved by the managing agency or the project
owner, and the transfer of assets to the managing agency or the project owner
is completed, the managing agency shall issue the decision on completion of the
program/project and the decision on resolution of the project management unit;
dd) In case where it is necessary to settle
financial obligations and complete all required procedures, the project
management unit shall send the managing agency or the project management unit
the letter of transmittal to request the issuance of the decision to allow
prolonging of the activities of the project management unit, and the provision
of adequate budget for these activities;
e) Where the project management unit manages
various programs/projects, the managing agency or the project owner shall issue
the decision on completion of each program/project, and adjust the
corresponding functions and duties of the project management unit.
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1. The
program/project management consultant shall perform the tasks and commitments
under the contract with the project owner while complying with relevant
applicable regulatory provisions.
2. The project
owner shall select program and project management consultants through bidding
and signing consultancy contracts according to applicable regulations. When hiring a program/project management
consultant, the project owner must designate an affiliated specialized unit or
appoint a unit in charge of inspecting and supervising the consultant’s
contract performance.
Article 41. Formulation,
appraisal, approval and assignment of the public investment plans funded by
foreign funding sources for programs/projects funded by ODA and concessional
loans
1. Formulation,
appraisal, approval and assignment of the medium-term public investment plans
funded by ODA and concessional loans shall be subject to the regulations laid
down in Chapter III of the Law on Public Investment and the Government’s
regulations detailing some articles of the Law on Public Investment.
2. ODA and
concessional loans of foreign donors applying the domestic financial mechanism
for on-lending thereof to domestic public non-business units shall comply with
the provisions of international treaties, agreements on ODA and concessional
loans, and the Law on Public Debt Management and other applicable regulatory
provisions.
3. Programs and
projects already obtaining investment policy decisions from competent
authorities, and new projects, have to ensure that the time limit for
disbursement of capital for implementation of category-A, category-B and
category-C projects is 6, 4 and 3 years, respectively. In case of failing to
meet the aforesaid time limit, the Prime Minister shall decide the
implementation duration of projects funded by the central budget capital.
The implementation duration of a program/project
funded by ODA or concessional loan is determined from the time of allocating
fund to the program or project by a competent authority.
Article 42. Preparing and
approving master plans for implementation of programs/projects funded by ODA
and concessional loans
1. The master plan
for implementation of a program/project shall cover its entire duration, all
components, items, activities, relevant funding sources (e.g. ODA, concessional
loan, counterpart fund) and schedule.
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3. Within 05
working days from the day on which the master plan for program/project
implementation is approved, the managing agency shall send the decision on
approval enclosed with the master plan to the Ministry of Planning and
Investment, Ministry of Finance, concerned agencies, and the foreign donor to
facilitate their monitoring, evaluation, and cooperation in implementing the
program/project.
Article 43. Preparing and
approving annual plans for implementation of programs/projects funded by ODA
and concessional loans
1. Based on the
master plan for the program/project implementation already approved by the
managing agency; Based on the actual disbursement and disbursement plan
specified in the applicable specific international treaties, agreements on ODA
and concessional loans, the project owner shall review and submit annual
implementation plan to the head of the managing agency for approval. The annual
implementation plan for programs and projects funded by ODA and concessional
loan is also part of the annual investment plan of the managing agency.
2. The content of
the annual program/project implementation plan shall contain detailed
information about its components (divided into technical assistance component
and construction component), main activities, items, funding sources including
counterpart fund, and tentative schedule.
3. The annual plan
approved by the managing agency is the basis for the project owner to formulate
quarterly plans serving the management, monitoring and evaluation of the
program/project implementation.
4. Every year,
when formulating the socio-economic development plan and state budget estimate
in accordance with regulations in effect, the managing agency shall incorporate
the annual program/project implementation plan in its annual public investment
plan and annual budget plan. Based on the managing agency’s annual budget plan,
the Ministry of Planning and Investment shall formulate the capital plan and
coordinate with the Ministry of Finance in submitting the annual socio-economic
development plan and annual budget plan to the National Assembly for approval.
5. Procedures for
assigning tasks in the annual program/project implementation plan shall comply
with applicable regulatory provisions on assigning annual socio-economic
development tasks.
6. Within 05
working days from the day on which the annual plan for program/project
implementation is approved, the project owner shall send the decision on
approval enclosed with the annual program/project implementation plan to the
managing agency and seek agreement from the managing agency to send it to
Ministry of Planning and Investment, concerned agencies, and the foreign donor
to facilitate their monitoring, evaluation, and cooperation in implementing the
program/project.
7. Regarding a
program/project eligible for full on-lending from the state budget: Every year
when formulating the socio-economic development plan and state budget estimate,
the project owner shall formulate the program/project implementation plan and
submit it to the managing agency for approval of the ODA or concessional loan
financing plan and submit it to the Ministry of Planning and Investment, the
Ministry of Finance, and the authorized on-lending agency for supervision. The
managing agency and the project owner shall provide sufficient counterpart fund
according to the progress of the program/project.
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Article 44. Counterpart funds for preparing and implementing
the program/project
1. The counterpart
fund must be sufficiently provided in a timely manner and according to the set
schedule to prepare and implement the program/project (including prior
activities, if any). The funding sources, level, and mechanism of the
counterpart fund must be suitable for the expenditures of the program/project
agreed between the managing agency and the foreign donor, and specified in the
feasibility study report and program/project document as appraised and approved
by a competent authority.
2. Counterpart
funds shall cover:
a) Operating costs of the project management unit
(e.g. salaries, bonuses, allowances, offices, work equipment, administrative
costs);
b) Costs of design appraisal, examination of
overall budget estimates, completion of procedures for investment, construction
and other necessary administrative procedures;
c) Costs of contractor selection;
d) Costs of workshops, conferences, training in
management and implementation of the program/project;
dd) Costs of receiving and imparting international
technologies, experience and skills;
e) Costs of communication, advertising and
community activities;
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h) Interest expenses, deposits, commitment fees and
other relevant fees payable to the foreign donor;
i) Costs of receiving and transporting equipment
domestically (if any);
k) Costs of account finalization and verification
of final accounts;
l) Compensation, support and resettlement costs;
m) Costs of some basic activities of the program/project
(e.g. survey, technical design, construction of certain items, procurement of
certain equipment);
n) Costs of monitoring and evaluation; quality
assurance and control, acceptance, hand-over and account finalization of the
program/project;
o) Contingencies and other reasonable expenses.
3. Regarding a
program/project eligible for full grant from the state budget: The managing
agency shall allocate counterpart fund in its
annual budget estimate based on budget
decentralization arrangement and other legitimate
financial sources, which are clearly classified into capital expenditures and
recurrent expenditures corresponding to spending items of
the program/project; ensuring sufficient and
timely counterpart fund as specified in the
feasibility study report and program/project document approved by a competent
authority, the decision on investment, regulatory provisions on state budget
and applicable specific international treaty or agreement on ODA and
concessional loans.
4. Regarding a
program/project eligible for full on-lending:
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b) For enterprises and public non-business units
eligible for full on-lending: The project owner shall provide the counterpart
fund at their own expense or seek the competent authority’s decision to ensure
the adequate counterpart fund for the program/project according to regulations
before signing the on-lending agreement.
5. For a programs/project
with the hybrid financial mechanism (the combined grant and on-lending
mechanism): The managing agency or the project owner shall allocate sufficient
counterpart fund in accordance with applicable regulatory provisions before
signing the on-lending agreement.
6. Regarding the
program/project eligible for grant from the state budget that is not approved
or concluded at the same time as the annual budget estimates, and hence not
provided with counterpart fund: The managing agency shall request the Ministry
of Planning and Investment and the Ministry of Finance in writing to take
actions within their jurisdiction, or seek the competent authority’s decision
on supplementation of the annual budget estimate.
If the counterpart fund plan is not made at the
same time as the annual budget plan, the managing agency shall provide it from
the allocated capital. If the managing agency is not able to provide
counterpart fund, it shall request the Ministry of
Planning and Investment and the Ministry
of Finance in writing to seek
approval of capital advance, which will be then deducted from
the next year’s budget plan.
7. Norms of the
counterpart fund shall be aligned with the state budget spending norms and
conform to the regulations laid down in relevant legislation.
Article 45. Taxes and fees
imposed upon programs/projects
Taxes and fees imposed upon programs and projects
shall comply with applicable regulatory provisions on taxes and fees, and
international treaties to which the Socialist Republic of Vietnam is a
signatory. Where there are discrepancies between Vietnam's domestic law
and a signed international treaty on the same issue, the latter shall prevail.
Article 46. Compensation,
support and resettlement
Compensation, support and resettlement in the
course of implementation of programs/projects shall comply with applicable
regulatory provisions and international treaties on ODA and concessional loan
to which the Socialist Republic of Vietnam is a signatory. Where there
are discrepancies between Vietnam's domestic law and a signed international
treaty on the same issue, the latter shall prevail.
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1. The contractor
selection shall be carried out in accordance with the international treaty between
Vietnam and the foreign donor; where there are discrepancies on contractor
selection between the international treaty to which Vietnam is a signatory and
the Law on Bidding, such international treaty shall prevail. If the
international treaty does not provide for contractor selection procedures, the
contractor selection process shall be carried out in accordance with the Law on
Bidding.
2. Delegation
procedures for submission, appraisal and approval of bidding contents shall
comply with Vietnam's regulations on bidding. The content of appraisal and
approval shall comply with the international treaty under the rules prescribed
in clause 1 of this Article.
Article 48. Surplus funds
1. Surplus funds
may be used only after capital is fully provided for successfully accomplishing
the objectives of a project or project items at an investment stage with
respect to the project involves various staged loans.
2. In cases where
it is really necessary to use the surplus funds to promote the efficiency
without altering major objectives specified in the investment policy decision
of the ongoing program/project:
a) The managing agency shall be in charge of
determining the necessity and efficiency to decide the use of the surplus
funds; send the written proposal or agreement for use of the surplus funds of
the foreign donor and other relevant documents to the Ministry of Planning and
Investment;
b) The Ministry of Planning and Investment shall
take the lead and incorporate the comments of the Ministry of Finance, other
relevant agencies and foreign donors into a report prepared for submission to
the Prime Minister to seek his decision.
3. Where there is
the demand for the surplus funds for implementation of a new program/project,
the managing agency shall send a letter of transmittal to the Ministry of
Planning and Investment, enclosing the report on the investment policy proposal
for that program/project. The Ministry of
Planning and Investment shall take the lead and coordinate with concerned
agencies in working with the foreign donor to reach agreement on use of the
surplus funds and the applicable financial mechanism, and proceeding with the
procedures for decision on the investment policy stipulated in Article 14, 15,
16, 17 and 18 herein.
4. Cancellation of
surplus funds: The managing agency shall synthesize comments of the Ministry of
Planning and Investment and request the Ministry of Finance to cancel the
surplus funds of the program/project. Based on
the proposal of canceling the surplus funds, the Ministry of Finance shall
inform the donor of the cancellation of surplus funds.
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Article 49. Construction
management, acceptance, hand-over, audit and account finalization
1. Regarding a
construction project, the appraisal of the feasibility study report; the
approval of the investment project; the appraisal and approval of the
construction design; the grant of construction permit, construction quality
management, acceptance, hand-over, project warranty and insurance shall comply
with applicable regulatory provisions on construction management and
international treaties on ODA and concessional loan to which the Socialist
Republic of Vietnam is a signatory. Where there are discrepancies between
Vietnam’s domestic law and the international treaty already in effect on the
same issue, then the international treaty shall prevail.
2. Regarding a technical
assistance program/project, upon completion, the managing agency shall carry
out the acceptance procedures and take necessary measures to continuously
operate it and maximize the achievements, as well as comply with applicable
regulatory provisions on financial and asset management of the program/project.
3. The audit and
account finalization of the program/project shall be carried out in accordance
with applicable regulatory provisions and international treaties on ODA and
concessional loans to which the Socialist Republic of Vietnam is a signatory,
or at the request of the foreign donor. Where there are discrepancies between
Vietnam’s domestic law and the signed international treaty on the same issue,
the international treaty shall prevail.
Article 50. Monitoring and evaluation of programs/projects
funded by ODA and concessional loans
1. Monitoring,
evaluation and supervision of programs/projects funded by ODA and concessional
loans:
a) Monitoring, evaluation and supervision of
programs/projects funded by ODA and concessional loans shall be subject to the
regulations laid down in Article 69, 70, 71, 72, 73, 74, 75, 76 and 77 of the
Law on Public Investment and other relevant law. Where there are discrepancies
between Vietnam’s domestic law and a signed international treaty on the same
issue, the international treaty shall prevail;
b) The Ministry of Planning and Investment shall
develop and run the national information system and database on public
investment; the information system for monitoring of investment evaluation;
c) Ministries, central authorities and local
authorities shall develop and run the national information system and database
on public investment; the information system for monitoring of investment
evaluation within their remit.
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a) Monitoring and inspection of the
programs/projects and non-project assistance: The project owner shall monitor
and inspect the implementation of programs, projects and non-project assistance
on the basis of program, project or non-project assistance documents approved
by the competent authorities to ensure achievement of the set objectives, and
periodically report to the managing agency on the monitoring and inspection
results;
b) Evaluation of programs, projects and non-project
assistance: Within 3 months from the end of the program, project or non-project
assistance, the project owner shall complete the evaluation report for the
program, project or non-project assistance, covering the following contents:
Implementation process; implementation results of objectives; resources
mobilized; benefits from the programs, projects and non-project assistance to
beneficiaries; impacts, sustainability; lessons learned and necessary
recommendations; responsibilities of concerned agencies, organizations and
individuals;
c) Reporting requirements on the implementation of
programs, projects and non-project assistance for managing agencies and project
owners: Managing agencies and project owners shall send reports according to
applicable regulatory provisions.
Chapter VI
STATE ENTERPRISES' USE
OF ODA AND CONCESSIONAL LOANS OF FOREIGN DONORS
Article 51. Areas needing and
conditions for use of ODA and concessional loans of foreign donors
1. State
enterprises may use ODA and concessional loans of foreign donors for investment
in the projects in the priority areas referred to in Article 5 hereof according
to the industries and business sectors specified in establishment decisions or
enterprise registration certificates.
2. Conditions for
use of ODA and concessional loans of foreign donors:
a) State enterprises eligible to use ODA and concessional
loans of foreign donors must be enterprises of which charter capital is wholly
held by the State and subsidiaries thereof;
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c) State enterprises shall agree to record
increases in the state capital contributions in enterprises if the state uses
ODA grants associated with ODA and concessional loans (if any) as such capital
contributions for implementation of investment projects.
Article 52. Project proposal
1. Order and
procedures for approval; documentation requirements and time limits for
considering; criteria for selecting the program/project proposal shall comply
with the regulations laid down in Article 13 herein.
2. The managing
agency shall send the Ministry of Planning and Investment and the Ministry of
Finance the proposal for project funded by foreign ODA and concessional loan.
3. The Ministry of
Finance shall take the lead for determining the grant elements, evaluating the
impact of new loans on the public debt safety thresholds, and reporting to the
Prime Minister in accordance with the Law on Public Debt Management and to the
Ministry of Planning and Investment.
4. The Ministry of
Planning and Investment shall incorporate the comments of the Ministry of
Finance, other relevant agencies and foreign donors into a report to be
submitted to the Prime Minister to seek his decision.
5. The Prime
Minister shall consider approving the proposals for program/project funded by
ODA and concessional loan of the state enterprises as per clause 1 and 2 of
Article 29 in the Law on Public Debt Management and clause 1 of Article 13
herein.
6. Based on the
decision on approval of the project proposal issued by the Prime Minister, the
managing agency shall assign concerned agencies and organizations to prepare
the project in accordance with relevant regulations.
Article 53. Assent to
investment policy
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2. Documentation
requirements, order and procedures for assent to the investment policy shall be
subject to Article 33, 34, 35 and 36 of the Law on Investment.
Article 54. Investment
decision
Authority, documentation requirements, order and
procedures for decision on investment in the project funded by ODA and
concessional loans of foreign donors that are fully on-lent to the state enterprises
shall be subject to law on enterprises, construction, management and use of
state capital invested in production and business activities at enterprises,
and other relevant regulations.
Article 55. Signing, amending,
supplementing and renewing international treaties or agreements on ODA and
concessional loans
Signing, amending, supplementing or renewing
international treaties on ODA and concessional loans shall comply with the
regulations laid down in Chapter IV herein and Article 29 of the Law on Public
Debt Management.
Article 56. On-lending of ODA
and concessional loans
On-lending of ODA and concessional loans shall be
subject to the Law on Public Debt Management and the Government’s regulations
on on-lending of ODA and concessional loans of foreign donors.
Article 57. Project
modification
1. Project
modification shall comply with Article 41 in the Law on Investment and the
Government's regulations elaborating on and providing instructions for
implementation of a number of Articles of the Law on Investment.
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Article 58. Setting 5-year on-lending limits, developing annual
on-lending plans and limits
Setting 5-year on-lending limits, developing annual
on-lending plans and limits shall comply with the regulations laid down in the
Law on Public Debt Management and relevant regulatory provisions.
Article 59. Management,
implementation, supervision, evaluation and reporting regime
Management, implementation, supervision, evaluation
and reporting regime shall be subject to regulations currently in force.
Chapter VII
FINANCIAL MANAGEMENT OF
ODA AND CONCESSIONAL LOANS
Section 1. OPENING AND
MANAGEMENT OF PAYMENT ACCOUNTS
Article 60. Opening payment
accounts for programs and projects funded by ODA or concessional loans at State
Treasuries and service banks
1. Accounts for
ODA and concessional loans:
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b) The project owner shall register the project's
account opened at State Treasuries or service banks to receive ODA and
concessional loans for activities of the programs or projects.
2. Accounts for
counterpart funds: The project owner shall open accounts at the State Treasury
that is convenient for their transactions (hereinafter referred to as
transacting State Treasury) so as to control and payment of counterpart fund
(domestic fund) for the project, or at the bank that they choose (if
enterprises are fully on-lent these funds).
Article 61. Criteria for
selection of service banks for programs/projects funded by ODA and concessional
loans
1. The bank
designated as the service bank for the program/project must have experience in
managing ODA and concessional loan withdrawal, based on the domestic credit
rating of the competent authority, meeting banking professional standards and
qualifications, complying with regulations on prudential ratios in banking
operations.
2. Having a
network of branches suitable to the requirements of the programs/projects.
3. Accepting the
responsibilities of service banks as stipulated in Articles 60, 62, 63, 64, 78
and 89 herein.
Article 62. Responsibilities
of service banks
1. Carry out the
procedures for the Ministry of Finance or project owners to open ODA and
concessional loan accounts for the programs or projects in accordance with the
international treaties, agreements on ODA and concessional loans signed by the
competent authorities, as well as regulations laid down in Chapter VI and VII
of this Decree.
2. Monitor and
manage accounts, conduct banking transactions and collect fees according to
regulations, and report information on accounts of the programs or projects
funded by ODA and concessional loans in accordance with Chapter VII and VIII of
this Decree.
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1. The transacting
State Treasury or the service bank shall carry out the procedures for opening
designated accounts for advance payments (transaction accounts) for project
owners or the Ministry of Finance in accordance with the project's payment
requirements, ensuring the direct transfer of funds to the projects, not through
intermediary accounts. In cases where a project is supported by multiple
financial sources, separate accounts must be opened to monitor individual
withdrawals.
2. Where the
managing agency assigns several implementing units, the project owners shall
open branch accounts at the transacting State Treasury or the service bank
branch.
3. The currency of
the account is the borrowing foreign currency (except for cases where the
Ministry of Finance approves the opening of accounts in Vietnamese dong).
4. Management of
interest earned on advance payment accounts:
a) Interest earned on advance payment accounts must
be separately accounted and used for payment of banking service charges
according to regulations. Banking service
charges are considered project expenses. Where
the amount of interest earned is not enough to cover banking service charges,
the project owners shall make a budget estimate and earmark a part of
counterpart fund for payment of the charges not yet fully paid.
b) Upon completion of all spending activities on
the designated account, for projects eligible for full grant from the state
budget, the project owners shall remit the amount of interest earned thereon
into the state budget. For projects eligible for full on-lending, the amount of
interest earned shall be the project owners’ revenue. For projects eligible for
partial on-lending, the amount of interest earned shall be distributed on a pro
rata basis.
Article 64. Responsibilities
of the account opening institutions of programs/projects funded by ODA and
concessional loans
1. At the request
of the project owners as the account holders, the State Treasury or the service
bank shall provide guidance on documentation requirements and procedures for
opening payment accounts of the projects and carrying out payment, fund
withdrawal and other transactions according to the applicable regulations.
2. The State
Treasury or the service bank shall guide and provide project owners with
sufficient information for the payment transaction via the State Treasury or
service bank system.
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4. On a monthly
basis, as agreed upon between the account opening institutions and the account
holders, and upon the account holders’ request, the account opening
institutions shall notify the account holders of the interest earned on the
designated accounts of the projects (if any); banking service charges
collected; the difference between interest earned and service fees paid;
opening and closing balance.
5. Within 02
working days after being informed of the disbursement by the foreign donors,
the account opening institutions shall credit to the accounts of the project
and notify the account holders.
6. Before the 10th
of each month, the State Treasury and the service bank shall submit a synthesis
report to the Ministry of Finance on previous-month changes arising in the ODA,
concessional loan accounts opened throughout the entire system. The report must
detail project names, project owners, accounts, sub-accounts (each account or
sub-account is used for a source of funding); must separate ODA grants and
loans; must provide details about the opening balance, total withdrawal from
foreign donors in the period, total expenditures in the period, the closing
balance, repayments to foreign donors (if any); must provide data on interest
earned on ODA and concessional loan accounts in the period, the amount of
interest used to cover banking service charges, and closing interest balance.
7. At the end of
every fiscal year, account balances shall be reconciled with the project owner.
Section
2. ANNUAL FINANCIAL PLANS FOR ODA AND CONCESSIONAL LOANS
Article
65. Principles of formulation of annual financial plans for programs/projects
funded by ODA and concessional loans
1. Based on the medium-term plans
approved by the competent authorities, the managing agencies shall formulate
annual financial plans for programs/projects funded by ODA and concessional
loans.
2. The annual financial plan
must be detailed by each program, project, international treaty, and agreement
on ODA and concessional loans already signed, including foreign funds granted
from the central budget, on-lent foreign funds, and counterpart fund granted
from the central government budget, the local government budgets. In cases
where the projects are funded according to the pro-rata on-lending approach,
the financial plan must reflect the exact ratio of granted and on-lent amounts
in line with the financial mechanism approved by the competent authorities.
3. The allocation level of
ODA, concessional loans and counterpart fund in the annual budget estimates
must be in line with international treaties and signed agreements on ODA and
foreign concessional loans, and the actual disbursement capacity of programs
and projects funded by ODA, concessional loans.
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Article
66. Synthesis of financial plans for ODA and concessional loans in the annual
state budget estimates
1. For capital investment
programs/projects eligible for full grant from the state budget, Ministries,
central and local authorities shall propose public investment plans in order
for the Ministry of Planning and Investment and the Ministry of Finance to
integrate them in the annual state budget estimates.
2. For on-lent loans to
provincial People's Committees, the provincial People's Committees shall
elaborate the withdrawal plans for on-lent fund, and report to competent
authorities as required by the Government's Decree on the management of local
governments’ debts, and deliver the plans to the Ministry of Finance to be incorporated
into the State budget estimates and report to competent authorities for
decision.
3. For on-lending projects of
enterprises or public non-business units, the project owners shall deliver to
the Ministry of Finance the registration of annual plans on disbursement of
on-lent fund, and concurrently send these plans to the managing and authorized
on-lending agencies. The Ministry of Finance shall synthesize and submit them
to the Government for decision on the limit of ODA and concessional loans for
annual on-lending as per regulations.
Article
67. Entry and approval of annual estimates on the Treasury and Budget
Management Information System (TABMIS)
1. As for the central budget,
based on the budget estimates approved by the National Assembly and assigned by
the Prime Minister, the managing agency shall allocate and enter estimated fund
for the Ministry of Finance's verification and approval of estimates comprising
funds derived from ODA, concessional loans and ODA grants associated with
foreign donors' loans on TABMIS as per regulations on TABMIS operation and
applicable guiding documents.
2. As for
local budget, based on the budget
estimates approved by the provincial People's
Councils and assigned by the provincial People's Committees, the
provincial Departments of Finance shall enter and verify capital investment
plans and recurrent expenditure estimates from ODA loans and ODA grants
associated with foreign donors' loans and concessional loans as targeted local
budget support; the Government's ODA loans and ODA grants associated with
foreign donors' loans for on-lending to local budget on TABMIS according to
applicable regulatory provisions.
3. The entry of estimates
into TABMIS must ensure the correct source of granted ODA and concessional
loans, targeted local budget support via on-lent ODA and concessional loans to
localities as well as assigned portfolio and norms assigned by the competent
authorities (for targeted local budget support).
Section
3. EXPENDITURE REVIEW OF ODA AND CONCESSIONAL LOANS
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The expenditure review and
repayment of ODA and concessional loans (hereinafter referred to as expenditure
review) shall comply with the applicable regulations on state budget fund.
1. Expenditure
review applies to all expenditures of
the project financed by ODA and
concessional loans, including those in the
form of L/C or direct payments
authorized to foreign parties, ensuring
that expenditures are based on estimates and
in compliance with the signed international
treaties on ODA and concessional loans and
applicable domestic regulations on financial management.
2. Expenditure review for the
programs and projects funded by foreign ODA and concessional loans that are
eligible for full grant from the state budget or partial on-lending on a
pro-rata basis are conducted in compliance with applicable regulations on state
budget within the approved estimates of foreign fund, annual on-lending plan,
or revisions thereof made in the year (if any) approved by the competent
authorities.
3. Order, procedures,
documentation requirements for expenditure review, the written request for
certification of eligible non-business expenditures and the written request for
payment of capital expenditures of the project owners shall comply with the
regulatory provisions on administrative procedures in the field of state
treasury.
4. Time limit for expenditure
review of advances and payments in the fiscal year:
a) Statutory advances:
Expenditure review must be conducted not later than December 31 of the planning
year while the project owner shall send dossier and other evidencing documents
to the expenditure review agency by December 31 every year;
b) Payments for completed
quantities are subject to expenditure review until January 31 of the following
year.
5. For on-lending projects
and component subject to credit limits applicable to loan agreements signed in
2017 and earlier: Expenditure review dossiers and procedures for on-lending
projects and components subject to credit limits shall follow regulations of
credit institutions using on-lent loans and the signed specific international
treaties and agreements on ODA and concessional loans. Credit institutions
using on-lent ODA or concessional loans shall be legally responsible for the
eligibility and validity of extended credit and fees in their statements of
expenditures sent to the Ministry of Finance when preparing and submitting
foreign fund withdrawal dossier.
6. Expenditure review
dossiers and procedures for projects or project components applying the full
on-lending mechanism: The on-lending agencies shall comply with clause 3 of
this Article and on-lending agreements.
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Article
69. Expenditure review agencies
1. The State Treasuries at
all levels shall control the payment dossiers of projects or project components
eligible for full grant from the state budget; projects eligible for partial
grant and pro-rata partial on-lending, and on-lending projects of provincial
People's Committees.
2. The on-lending agencies
authorized by the Ministry of Finance shall control the payment dossiers of the
projects or the project components that apply full on- lending mechanism.
3. For other programs and projects
which have not been specified in clause 1 and 2 of this Article yet, the
Ministry of Finance shall determine the appropriate expenditure review agency,
ensuring no overlap where two expenditure review agencies control the same
expenditure activity of the project.
Article
70. Forms of expenditure review
1. Prior review of
expenditures means that the expenditure review agency inspects and validates
the legality and validity of the expenditures before the project owners
withdraw fund to pay the contractors or beneficiaries. Prior review of
expenditures shall apply to the expenditures not covered by clause 2 of this
Article.
2. Post review of
expenditures means that the expenditure review agency inspects and validates
the legality and validity of the expenditures after the project owners withdraw
fund to pay the contractors or beneficiaries. Prior review of expenditures
shall apply in the following cases:
a) Payment from designated
accounts to contractors or suppliers, except for designated accounts for advance
payments owned by the Ministry of Finance that apply prior review of
expenditures;
b) Advance payment transfer
from designated accounts to secondary accounts for the projects having several
management levels;
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d) Payment by L/C for
procurement of goods and equipment, except for the last payment.
3. Within 30 days after the
withdrawal of fund for payment, the project owner shall prepare the complete
payment dossiers for submission to the expenditure review agency for validation
as the basis for the next payment. Where it is deemed necessary, the project
owner may reach an agreement with the contractor to apply the prior review of
expenditures for the expenditures specified in clause 2 of this Article and
deliver the agreement to the expenditure review agency for its coordinated
implementation.
Section 4.
WITHDRAWAL OF FUND, ACCOUNTING MANAGEMENT OF ODA AND CONCESSIONAL LOANS
Article
71. Forms of ODA and concessional loan withdrawal
Forms of ODA and concessional
loan withdrawal are as follows:
1. Withdrawal of budget
support: ODA and concessional loans shall be disbursed to the state budget for
direct budget support or result-based funding.
2. Fund withdrawal for
programs or projects: Fund withdrawal for programs or projects shall apply one
or some of the following forms: Direct payment, payment by L/C, reimbursement,
designated account for advance payment.
Article
72. Time limit for processing withdrawal applications for ODA and concessional
loans
1. The time limit for
processing withdrawal applications at the Ministry of Finance is 04 working
days of receipt of the complete dossier required by law. The time limit for
processing statements of expenditures is 07 working days of receipt of the
complete dossier required by law.
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Article
73. Order and procedures for withdrawal of ODA and concessional loans
1. Order and procedures for
fund withdrawal in the form of budget support:
a) The project owners and
managing agencies shall take the lead or coordinate with the Ministry of
Finance and concerned agencies in fulfilling Vietnam’s commitments as agreed
upon with the foreign lenders to satisfy the prerequisites for withdrawal of
fund stated in specific international treaties, agreements on ODA and
concessional loans already signed;
b) For general budget
support, the Ministry of Finance shall prepare withdrawal applications and send
them to the foreign lenders, and transfer the withdrawn funds to the state
budget for use according to the signed international treaties and agreements on
ODA and concessional loans;
c) For central budget support
for national target programs, after reaching an agreement with the agencies
managing component projects, the agencies managing national target programs
shall agree with the Ministry of Finance on the time and amount of ODA and concessional
loan withdrawal, and ensure that the disbursed amount is incorporated in the
annual financial plans and estimates of programs and component projects;
prepare fund withdrawal applications for submission to the Ministry of Finance
according to the signed international treaties or agreements on ODA and
concessional loans;
ODA and concessional loans
that are disbursed to the state budget shall be allocated to component projects
for use in accordance with the applicable procedures on managing state budget
fund.
2. Order and procedures for
fund withdrawal in the form of result-based funding:
a) The project owners and
managing agencies shall take the lead and cooperate with concerned agencies in
implementing the relevant disbursement linked indicators as agreed upon with
the foreign lenders as a basis for fund withdrawal. Project owners are entitled
to receive advance fund in accordance with the regulations of the foreign
lenders in order to carry out the agreed work towards achieving disbursement
linked indicators;
b) The project owners and
managing agencies shall take the lead or coordinate with concerned agencies in
making reports, documents, or providing documents that prove the fulfillment of
the disbursement criteria prescribed in the signed international treaties or
agreements on ODA and concessional loans, and sending them through to the
foreign lenders. The project owners shall submit fund withdrawal dossiers and
applications to the Ministry of Finance according to the regulations of the
foreign lenders;
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d) When withdrawing funds
under the results-based financing facilities, the project owner may use the
exchange rate between Special Drawing Rights (SDR) and Vietnam Dong (VND)
published on the donor’s website at the time of preparing withdrawal
application.
3. Order and procedures for
fund withdrawal in the form of project financing:
a) Forms of withdrawal:
Direct payment: Transfer
money directly to the contractors and suppliers of the projects;
Payment by letter of credit
(L/C): This payment method means payment by L/C issued by the bank at the
request of the project owner under commitments to the contractor or supplier on
payment of a certain amount if the contractor or supplier can present a set of
valid documents as prescribed in the L/C;
Reimbursement: This method is
a form in which a foreign donor pays to reimburse the eligible expenditures
paid by the project owner for the project;
Designated account for
advance payment: This is a form in which foreign donors pay in advance a sum of
money into a designated account opened for the project at the service bank or
the State Treasury so that the project owner can take initiative in paying for
eligible recurrent expenditures of the project, thereby reducing the number of
loan withdrawals;
For programs/projects funded
in the form of fund withdrawal to the special account, the investor (project
owner) shall report on expenditures and send the letter of transmittal to
return proofs of these expenditures each month. Time limit for returning
proofs of expenditures from the special account to the Ministry of Finance
shall not exceed 06 months. After the 6-month time limit, if the investor
(project owner) does not return these proofs, the method of direct payment for
subsequent disbursements shall be applied.
b) After the foreign donors
announce that they have fulfilled the prerequisites for fund withdrawal under
international treaties, agreements on ODA and concessional loans, the project
owners or the project management units shall submit the dossier on request for
fund withdrawal in line with the sample dossier given by the foreign lenders
and depending on specific forms of fund withdrawal to the Ministry of Finance;
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d) The fund withdrawal
dossier to be delivered to the Ministry of Finance: For each fund withdrawal
transaction, the project owner or the authorized unit shall compile and deliver
to the Ministry of Finance a fund withdrawal dossier in line with each form of
fund withdrawal. The sample dossier on fund withdrawal is prescribed in the
Appendix IX hereto. Project owners shall be responsible for accuracy and
validity of the fund withdrawal dossier, including: expenditure review numbers
that help prevent an expenditure from being reviewed or disbursed twice,
quantities accepted for payment, norms, unit prices, estimates of costs of
different types of work, instructional information about payment to
contractors. This dossier must comply with regulatory provisions on financial
management of ODA and concessional loans;
dd) Procedures for electronic
fund withdrawal meeting prescribed conditions shall be carried out on the
website of the Ministry of Finance in accordance with the Government's
regulations on provision of online information and public services on websites
or web portals.
4. Introduction and
invalidation of specimen signature affixed to ODA and concessional loan
withdrawal application: The managing agency shall send the Ministry of Finance
the letter of introduction or the notice of invalidation of the specimen
signature of the project owner or the project management unit authorized by the
project owner for projects applying the pro-rata partial grant or on-lending
mechanism; the party receiving on-lend fund shall send the Ministry of Finance
the letter of introduction or the notice of invalidation of the specimen
signature of the project owner or the project management unit authorized by the
project owner for projects applying the full on-lending mechanism.
Article
74. Principles for management of accounting of ODA and concessional loans into
the state budget
1. ODA and concessional loans
to offset the state budget deficit must be fully and accurately accounted into
the state budget.
2. For programs and projects
that apply full or partial grant mechanism and subject to expenditure review at
the State Treasury, the accounting of ODA and concessional loans fully granted
or partially on-lent on a pro-rata basis (for provincial People's Committees)
into the state budget shall be carried out by the state treasury where the
transactions are conducted.
3. State budget accounting
shall be carried out based on the disbursement documents of ODA and
concessional loans transferred to agencies, organizations and units for use as
notified by foreign donors. For the payment from designated accounts for
advance payment, the project owners shall prepare written requests for
accounting of ODA and concessional loans for submission to the State Treasury
for validation when the expenditure review procedures are taking place. For
other forms of fund withdrawal, the project owners shall prepare written
requests for accounting of ODA and concessional loans for submission to the
State Treasury for validation within 03 working days after receiving the
disbursement documents from the foreign donors, and send them all to the
Ministry of Finance for monitoring.
Article
75. Accounting of direct budget support
Based on cash receipts or
credit advices of the service banks, the State Treasury shall debit ODA and
concessional loans, and credit ODA and concessional loan revenues to the state
budget as prescribed by regulations; In case of transferring foreign currencies
to the centralized foreign currency reserve, the State Treasury shall account
them according to regulations on revenues or loans of the state budget in
foreign currencies.
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The State Treasury shall
record revenues and expenditures for ODA and concessional loans eligible for
grant and on-lending under programs and projects subject to expenditure review
at the State Treasury, specifically as follows:
1. Keep the accounts under
the correct source codes of ODA, concessional loans granted from the central
budget; targeted local budget support from ODA, concessional loans; ODA,
concessional loans on-lent to the localities and make detailed accounting
entries by types of ODA grants associated with loans.
2. Permissible advances shall
be accounted for as increase in advance expenditures. Recovered advances shall
be accounted for as decrease in advance expenditures.
3. Payments for completed
quantities are accounted for under actual revenues and expenditures for annual
account finalization of the state budget.
4. For expenditures in the
annual budget plan which have been reviewed and paid before January 31 of the
following year, the State Treasury shall record any increase or decrease in these
expenditures in the current year (transaction year). For expenditures which
have been reviewed before January 31 of the following year and paid after
January 31 of the following year, the project owner shall arrange the following
year's plan to record any increase or decrease.
5. Accounting dossiers of
such increase or decrease in expenditures shall be subject to the Government’s
regulations on administrative procedures in the state treasury field. The
project owner shall send the dossier to the transacting State Treasury to
confirm the accounting before February 1 of the following year.
Article
77. Accounting of on-lent ODA and concessional loans at the Ministry of Finance
1. For the Government’s ODA
and concessional loans on-lent by the Ministry of Finance; loans where the
financial institutions and credit institutions are authorized by the Ministry
of Finance to act as on-lending agencies to investment programs and projects:
Based on the donor's disbursement notice and the project owner’s statement of disbursement,
the Ministry of Finance shall account the debt obligations in accordance with
the regulations on accounting regime applicable to the central and local
governments’ loans and repayments; keep track of statistics of on-lent amounts
and Government guarantee.
2. When adjusting accounting
entries of programs and projects falling under the accounting mandate of the
Ministry of Finance, based on the disbursement advice of the foreign donor, the
Ministry of Finance shall make an entry adjustment and send copies thereof to
on-lending agencies and project owners to adjust entry data accordingly on
financial and account finalization reports on foreign capital.
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1. Direct payments and L/C payments
made by the donor in foreign currencies to contractors and suppliers when being
accounted in VND shall apply the transfer buying rate at the beginning of the
day published by the service bank or the bank where the State Treasury opens
the account, or the transfer buying rate at the beginning of the day published
by Joint Stock Commercial Bank for Foreign Trade of Vietnam in the absence of a
service bank on the date when the donor makes loan to the Government.
2. For direct payments made
by the donor in other currencies other than the currency of indebtedness, the
actual exchange rate shall be applied between the currency of indebtedness and
the currency of payment.
3. In case the project
expenditures are made from the designated account for advance payment,
expenditures from the designated account for advance payment in VND and in
foreign currency shall apply the transfer buying rates for the respective
foreign currencies of the service bank or the bank where the State Treasury
opens account at the time of payment.
4. When converting advance
payment to actual payment for completed volume, the transfer buying rate at the
beginning of the day published by the service bank or the bank where the State
Treasury opens the account at the time of accounting advance payment shall be
applied to account for the recovered advances.
5. The project owner is
responsible for determining and applying the exchange rate when requesting the
State Treasury where the transactions are conducted to review expenditures or
requests accounting for any increase or decrease in expenditures in foreign
currencies as per regulations.
6. The project owner shall
revaluate the exchange rates for monetary items denominated in foreign
currencies related to project activities at the end of the accounting period
before preparing financial statements and upon request of the donors according
to regulations of the accounting regime applied by the units.
Article
79. Time limit for state budget accounting
1. Expenditures from ODA and
concessional loans validated under expenditure review procedures and disbursed
until January 31 of the following year shall be accounted at the State Treasury
where transactions are conducted before January 31 within 05 working days.
2. The State Treasury shall
complete the accounting of expenditures from ODA and concessional loans in the
implementation year within 30 days from January 31.
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Section 5.
REPORTING, ACCOUNTING, AUDITING, ACCOUNT FINALIZATION AND INSPECTION
Article
80. Electronic reporting on ODA and concessional loans
1. The managing agency shall
publish information on the Program/Project Proposal, Report on investment
policy proposal or Pre-feasibility study report, Project documents, Feasibility
study report approved by the competent authorities on the National information
system and database on public investment and the Ministry of Finance’s web
portal. The time limit for reporting is not later than 10 days from the date of
approval/decision by the competent authority.
2. The project owner or the
project management unit shall submit an electronic report on the National
Information System and Database on Public Investment, the Ministry of Finance's
web portal on the Program/Project Implementation Master Plan, expected annual
disbursement needs, annual allocated capital plans and revision thereof (if
any), the disbursement of ODA and foreign concessional loans.
a) As for the Program/Project
Implementation Master Plan and revision thereof (if any), the project owner or
the project management unit shall submit a report within 10 days from the date
of receiving the document approved by the managing agency;
b) As for the expected annual
disbursement needs, annual allocated capital plans and revision thereof (if
any), the project owner or the project management unit shall submit a report
within 10 days from the date of receiving the document approved by the managing
agency;
c) Regarding actual fund
disbursement, the project owner or the project management unit shall submit a
report on the disbursement of ODA and concessional loans in the month within 05
days from the end of the month on the National Public Information System and
Database on Public Investment and the Ministry of Finance’s web portal.
3. The Ministry of Planning
and Investment and the Ministry of Finance shall provide guidelines on forms of
electronic reports as prescribed in this Article.
Article
81. Report on disbursement and state budget accounting status
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Enterprises and public
non-business units that receive the on-lent amount shall follow the regulations
on the disbursement reporting requirements under the Government's Decree on
on-lending.
2. Within 30 days from the
closing date of the ODA and concessional loans, the project owner shall send a
report on completion of the withdrawal of ODA and concessional loans to the
Ministry of Finance and the managing agency as a basis for the project’s
account finalization.
3. The project owner shall
compile and deliver the financial reports to foreign donors according to the
provisions at signed international treaties, agreements on ODA and concessional
loans, feasibility study reports, project documents (if any) and concurrently
send these reports to the managing agency and the financial institution of the
same level to promptly monitor and direct the financial management of the
project.
4. Annually, within 60 days
from the end of the reporting period, to facilitate reconciliation between the
accounted data and actual disbursement, the managing agencies shall compile,
synthesize and provide the Ministry of Finance, the State Treasury with
the disbursement reports and accounting notes of the state budget revenues and
expenditures from ODA and concessional loans.
5. The Ministry of Finance
shall provide guidance on the forms of disbursement report.
Article
82. Accounting, auditing and account finalization regimes
Regimes on accounting,
auditing, and account finalization of programs and projects funded by ODA and
concessional loans shall comply with the regulations applicable to state budget
fund and the directions of the Ministry of Finance while ensuring compatibility
with the unique contents of the ODA and concessional loans.
Article
83. Regulations on asset management
Management of public assets
formed from foreign ODA and concessional loans shall be subject to regulatory
provisions on management and use of public assets.
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Article
84. Unique contents of programs/projects funded by ODA and concessional loans
1. Level of contractual
advance, recovery of advances, withheld ratio pending for warranty shall comply
with the contractual provisions between the project owner and the contractor in
accordance with the regulatory provisions on contracts (the project owner may
negotiate with contractors on advance guarantees for contracts with advance
payment value not exceeding VND 1 billion). The project owners are responsible
for managing and recovering the advances made to contractors. In case of
failure to recover advances, the project owners shall be responsible for
repaying the donors.
2. For every request for
certification and payment of the warranty sums to transfer it to the
contractors, the project owner shall send the State Treasury a schedule to
monitor the progress of transfer of these sums and accumulated amounts to be
transferred for reconciliation and confirmation of the warranty amount in
accordance with the contractual provisions so that the project owner can make
the payment to the contractor.
Article
85. Regulations on financial management of projects whose recurrent
expenditures are prescribed in the signed international treaties and loan
agreements
1. Project owners shall
prepare disbursement plans in the planning year and 02 subsequent years for
each program or project with breakdown by ODA loans, concessional loans, and
ODA grants for recurrent expenditures and counterpart funds, and submit them to
the Ministry of Finance.
2. The Ministry of Finance
shall incorporate plans on ODA loans and ODA grants associated with the loans
for recurrent expenditures granted to ministries, ministerial-level agencies,
central agencies and provincial People's Committees into the annual budget
estimates.
3. After the recurrent budget
is approved by the competent authority, concerned agencies shall enter the
recurrent expenditure plan on the TABMIS according to the applicable
regulations.
4. Review of recurrent
expenditures for projects or activities shall comply with the Law on State
Budget and guiding documents.
5. Projects with recurrent
expenditure nature shall apply the administrative and non-business accounting
regime. As for projects with hybrid nature of recurrent and capital
expenditure, the project owner shall report to the managing agency for decision
on the application of suitable accounting regime.
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7. The project owners
(spending units) shall prepare and submit annual account finalization reports,
annual financial statements to the managing agencies (direct accounting
supervisor), or send them to financial institutions (in the absence of any
direct accounting supervisor) according to the guiding documents on
administrative and non-business accounting regime. The approval, appraisal and
notification of annual account finalization shall comply with the Ministry of
Finance’s regulations on approval, appraisal, notification and synthesis of
annual account finalization.
Chapter
VIII
FINANCIAL
MANAGEMENT FOR ODA GRANTS
Article
86. Principles of financial management for ODA grants
1. ODA grants as the state
budget revenues on the Vietnam’s side shall be budgeted, reviewed, accounted,
and finalized in accordance with the laws on state budget and financial
management specified in this Decree. For new ODA grants that have not been
incorporated in the budget estimates allocated and assigned by the competent
authority, the project owners shall make additional estimates in accordance
with the regulatory provisions on state management and relevant legislation.
2. For ODA grants directly
made and managed by donors: The managing agencies are responsible for the tasks
assigned under the signed international treaties, agreements on ODA grants,
program/project documents or feasibility study reports; in line with their
functions and mandates; in compliance with the regulatory provisions on
acceptance of ODA grants. In case the donor transfers ownership of the assets
and equipment of the program or project to the project owner, the project owner
shall establish the ownership over the assets in accordance with applicable
regulations.
3. For mixed ODA grants:
Comply with the regulations on financial management for ODA and concessional
loans prescribed in Chapter VII of this Decree.
4. For ODA grants serving as
emergency aid:
a) For emergency ODA grants
for disaster assistance and relief: Comply with the Government’s regulations on
acceptance, management and use of international emergency aid for disaster
relief and recovery;
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5. In the event of any
discrepancies on financial management between this Chapter and the signed
international treaties on ODA grants, the latter shall prevail.
Article
87. Opening of payment accounts for programs/projects funded by ODA grants
1. Accounts for counterpart
funds: The project owners shall open accounts at the transacting State Treasury
so as to effect the control and payment of counterpart fund of the
projects.
2. Accounts for ODA grants:
The project owner shall open an account to receive ODA grant at the service
bank or the commercial bank. Order and procedures for opening of accounts at
the State Treasury and management and use of accounts shall be subject to the
applicable regulations.
Article
88. Preparation of financial plans for ODA grants
1. Pursuant to the Decision
approving the project/non-project document, or the Investment Decision for the
program or project; international treaty or agreement on ODA grant (if any),
the project owner shall prepare 3-year and annual budget plans for the ODA
grant in accordance with the Law on State Budget and relevant legislation and
send them to the managing agency for incorporation.
2. The annual budget
estimates for revenues and expenditures from ODA grants shall be detailed by
each donor, program, project or non-project assistance, by each international
treaty or agreement on ODA grant.
3. Formulation, synthesis, submission,
approval, assignment and revision of ODA grant budget plan:
a) For ODA grant used for
public capital expenditures, the regulatory provisions on public investment
shall be applied;
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c) For technical assistance
projects and non-project assistance funded by ODA grants in kind, the
formulation and decision on assignment of budget in the estimates or revised
estimates in the year by the competent authorities shall be carried out only
when value of aid assets or goods is determined.
4. Based on the annual budget
limits assigned by the competent authority, the managing agency shall allocate
funds with detailed breakdown by each program, project and non-project
assistance and notify the Ministry of Finance and the Ministry of Planning and
Investment of the detailed allocation plan.
5. The managing agencies
shall direct, organize and report the implementation of budget estimates for
the ODA grants in accordance with applicable regulations.
Article
89. Expenditure review, disbursement, and accounting of ODA grant in cash
1. Project owners shall
perform expenditure review at the State Treasury according to the regulations
on state budget management. The order and procedures for expenditure review and
accounting shall comply with the regulatory provisions on administrative
procedures in the state treasury field.
2. Expenditure review dossier
sent to the State Treasury for the first time:
a) Decision to assign or
supplement budget estimates by the competent authority;
b) Certified true copies of
the Decision on approval of program/project documents or the Decision on
investment in programs/projects and program/project documents or approved
feasibility study reports;
c) Certified true copies of
the international treaty or agreement on ODA grant or aide memoire on projects
funded by ODA grants;
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dd) The written request for
certification of eligible recurrent expenditures or the written request for
payment of capital expenditures of the project owners shall comply with the
Government’s regulations on administrative procedures in the field of state
treasury.
3. Each payment dossier
submitted to the State Treasury shall comply with the regulations on
expenditures from the state budget.
4. Disbursement of ODA grant
in cash for programs/projects: Based on the expenditure review results and at
the request of the project owner, the State Treasury or the commercial bank
where the project account is opened shall disburse funds to the project as per
regulations; notify the Ministry of Finance of the disbursed ODA grant of each
account owner on a monthly basis for each program or project.
5. Accounting of revenues and
expenditures for projects:
a) On a monthly basis or from
time to time, based on the expenditure review results and the written request
for accounting ODA grant sent by the project owner, the State Treasury shall
keep records accordingly as per regulations. In case the project owner opens an
ODA account at the commercial bank where the project account is opened, in
addition to the above-mentioned dossier, the project owner needs to enclose a
list of payment documents from the ODA account opened at the service bank;
b) The State Treasury shall
account ODA grant into the state budget under grant item according to
applicable regulations. Permissible advances shall be accounted for as increase
in advance expenditures. Recovered advances shall be accounted for as decrease in
advance expenditures. Payments for completed quantities are accounted for under
actual revenues and expenditures for annual budget account finalization;
c) Time of accounting shall
comply with applicable regulations on state budget funds.
6. The payment of advances
and expenditure review from ODA grant in cash shall be made in conformance to
applicable regulations on state budget.
7. Interest earned on ODA
grant deposited in accounts must be separately accounted and used for payment
of banking service charges according to the regulations. Banking service
charges are considered project expenditures.
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Article
90. Receipt of ODA grant in kind and service support
1. The receipt of imported
relief goods shall comply with the Law on Customs, the Law on Import and Export
Tax and the Law on Tax Administration. In addition to import dossiers
prescribed in law on customs, legislation on export and import tax, dossiers
sent to customs authorities to carry out the customs clearance procedures for
imported relief goods include:
a) Specific international
treaties or agreements on ODA grants or aide memoire on commitment and receipt
of ODA grants: 01 copy certified by the importer’s seal;
b) Decision on approval of
the documents of the projects, non-project assistance or the decision on
investment in programs and project documents or approved feasibility study
reports: 01 copy certified as true copy by the competent authority in
accordance with applicable regulatory provisions.
2. Tax refund or exemption
dossier for goods and services purchased domestically by using ODA grant sent
to the tax authorities include:
a) Specific international
treaty or agreement on ODA grant or aide memoire on commitment and receipt of
ODA grant: 01 copy;
b) Decision on approval of
the documents of the projects, non-project assistance or the decision on
investment in programs and project documents or approved feasibility study
reports: 01 copy;
c) Other documents prescribed
by laws related to tax refund or exemption;
d) The written request for
certification of legitimate non-business expenditures or the written request
for payment of investment capital of the project owner prescribed in the
Government’s regulations on administrative procedures in the field of state
treasury (with respect to ODA grant managed and carried out by Vietnam).
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a) Specific international
treaty or agreement on ODA grant or aide memoire on commitment and receipt of
ODA grant: 01 copy certified as true copy by the competent authority in
accordance with relevant law;
b) Decision on approval of
the documents of the projects or the decision on investment in programs and
project documents or approved feasibility study reports: 01 copy certified as
true copy by the competent authority in accordance with applicable regulatory
provisions;
c) Written request for
recording of revenues and expenditures prescribed in the Government’s
regulations on administrative procedures in the state treasury field;
d) For imported goods:
Contracts, bills of lading or other equivalent transport documents, commercial
invoices or customs declarations of imported goods for cases where commercial
invoices are not available: 01 copy certified as true copy of the competent
authority in accordance with applicable regulatory provisions. For goods
purchased domestically: Procurement contracts, VAT invoices, goods delivery
records: 01 copy certified as true copy by the competent authority in
accordance with applicable regulatory provisions;
dd) Decision on assignment of
ODA grant estimates or revisions thereof in the year by the competent
authorities that is required if value of the goods and items is determined.
4. When accounting for value
of imported goods, the State Treasury shall record the price exclusive of
taxes, fees and charges prescribed in applicable regulations.
Chapter
IX
DUTIES,
ENTITLEMENTS AND RESPONSIBILITIES OF AGENCIES AND ORGANIZATIONS INVOLVED IN
MANAGEMENT AND UTILIZATION OF ODA AND CONCESSIONAL LOANS
Article
91. Duties and entitlements of the Ministry of Planning and Investment
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2. Take the lead in
formulating, submitting for promulgation or promulgating legislative documents
on management and use of ODA and concessional loans within its competence.
3. Take the lead in
determining the capital investment needs to be financed by ODA and concessional
loans; synthesizing and submitting to the Prime Minister proposals on programs
and projects funded by ODA and concessional loans.
4. Take the lead and
coordinate with concerned agencies in appraising funding sources and
availability for investment projects funded by ODA or concessional loans.
5. Take the lead and
coordinate with concerned agencies in proposing the Government to sign
framework/specific international treaties and framework agreements on ODA
grants defined in clause 4 of Article 29 of this Decree; seek the Prime
Minister’s approval for signing of framework/specific agreements on ODA grants
defined in clause 3 of Article 32 of this Decree.
6. Synthesize and propose the
investment policy for programs and projects funded by ODA and concessional
loans falling under the approving competence of the Prime Minister to seek his
decision, except for Category A projects; send official notices to foreign
donors on approval of the program/project proposal, decisions on investment
policy, and request for support.
7. Synthesize and propose the
implementation policy for technical assistance projects and non-project
assistance funded by ODA and concessional loans falling under the approving
competence of the Prime Minister; send official notices to foreign donors on
approval of the technical assistance projects and non-project assistance, and
request for support once the implementation policy and project/non-project
documents have been approved by the competent authorities.
8. Coordinate with the
Ministry of Finance in elaborating framework and specific international
treaties, agreements on ODA and concessional loans.
9. Coordinate with the State
Bank of Vietnam in formulating international treaties on ODA grant not
associated with loans with international financial institutions.
10. Coordinate with the
Ministry of Finance and concerned agencies in determining the grant elements,
assessing the impacts of new loans on public debt safety thresholds and
domestic financial mechanisms applicable to programs/projects in accordance
with the regulatory provisions.
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12. Act as the agency in
charge of resolving bottlenecks arising in the course of program/project
implementation; issues related to multiple ministries or agencies to ensure
progress and accelerate disbursement of ODA and concessional loans; propose the
Prime Minister to decide solutions for issues related to ODA and concessional
loans falling under the approving competence of the Prime Minister.
Where necessary, establish an
interdisciplinary working group to work directly with managing agencies,
project owners, project management units, and foreign donors to review, assess,
and promptly address the issues within its competence.
13. Submit biannual, annual,
and ad-hoc reports on mobilization, management, and use of ODA and concessional
loans to the Prime Minister; propose solutions for bottlenecks arising in the
course of program/project implementation.
Article
92. Duties and entitlements of the Ministry of Finance
1. Coordinate with the
Ministry of Planning and Investment and concerned agencies in developing
cooperation strategies and policies with foreign donors.
2. Take charge of preparation
of contents related to conditions for use of capital, domestic financial
mechanism, financial management of programs and projects; financial appraisal
of on-lending projects.
3. Take the lead in
determining the grant elements, evaluating the impacts of ODA and concessional
loans on public debt safety thresholds, determining domestic financial
mechanisms for programs and projects funded by ODA and concessional loans.
4. Take the lead and
coordinate with the concerned agencies in proposing the Government to sign
framework and specific international treaties on ODA, concessional loans, and
ODA grants for ODA and concessional loan-funded programs/projects specified in
clause 2 of Article 29 of this Decree; propose the Prime Minister to sign
framework and specific agreements on ODA, concessional loans, and ODA grants
for ODA and concessional loan-funded programs/projects specified in clause 2 of
Article 32 of this Decree.
5. Coordinate with the
Ministry of Planning and Investment in appraising funding sources and
availability for investment projects funded by ODA or concessional loans.
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7. Synthesize and submit
proposal to the Prime Minister for decision on cancellation the surplus funds;
send an official written notice to the donor of the cancellation of the surplus
funds as specified under clause 5 of Article 47 of this Decree.
8. Financial management of
programs/projects:
a) Take the lead and
coordinate with concerned agencies in providing instructions on financial
management of programs and projects;
b) Provide instructions on
the format and reports on financial management of programs and projects in
accordance with applicable regulatory provisions and the international treaties
and agreements on ODA and concessional loans signed with foreign donors;
c) Provide capital from state
budget and other funding sources to repay ODA loans and concessional loans when
they are due;
d) Monitor and inspect
financial management in the use of ODA and concessional loans and organize
accounting work for these funding sources into the state budget;
dd) Comply with the reporting
regime on disbursement, fund withdrawal and repayment of ODA and concessional
loans in accordance with the laws on public investment, public debt management
and applicable regulations;
e) Take the lead and
coordinate with the Ministry of Planning and Investment in promptly providing
sufficient counterpart fund from administration funding sources for preparation
and implementation of the programs and projects eligible for grant from central
government budget in the annual budget plans;
g) Organize on-lending and
on-lent fund collection activities of the programs/projects applying mechanism
for on-lending of fund from the state budget.
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1. Coordinate with the
Ministry of Planning and Investment and concerned agencies in developing
cooperation strategies and policies with foreign donors; developing master
plans and plans for attraction, coordination, management, and use of ODA and
concessional loans; analyzing and evaluating the effectiveness of such funding
sources.
2. Coordinate with the
Ministry of Planning and Investment and the Ministry of Finance in assessing
sources of ODA, concessional loans, counterpart fund, and their availability
(for capital provided by the World Bank, Asian Development Bank, international
financial institutions, and other international banks in which the State Bank
of Vietnam acts as a representative).
3. Take the lead and
coordinate with concerned agencies in proposing the competent authorities to
sign international treaties on ODA grants that are not associated with loans
from international financial institutions, as stipulated in clause 3 of Article
29 of this Decree.
4. Coordinate with the
Ministry of Finance in proposing the competent authorities to sign framework and
specific international treaties and agreements on ODA and concessional loans
for financial institutions and international banks in which the State Bank of
Vietnam acts as a representative.
5. Provide comments on banks
eligible to become service banks for the programs or projects funded by ODA and
concessional loans.
Article
94. Duties and entitlements of the Ministry of Justice
1. Appraise the draft
international treaties and agreements on ODA and concessional loans as
prescribed by law.
2. Participate in negotiation
and development of draft international treaties and agreements on ODA and
concessional loans.
3. Provide comments on
investment policy proposal reports for programs/projects for judicial
cooperation with foreign donors.
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Article
95. Duties and entitlements of the Ministry of Foreign Affairs
1. Coordinate with concerned
agencies, based on general diplomatic policies, in developing and implementing
policies on raising ODA and concessional loans, cooperation policies;
participate in raising ODA and concessional loans.
2. Coordinate with the
Ministry of Planning and Investment and concerned agencies in directing
concerned agencies and diplomatic missions of Vietnam in other countries or at
international organizations to raise ODA and concessional loans in accordance
with policies and plans for attraction, coordination, management, and use of
ODA and concessional loans in each period.
3. Participate in negotiation
and provide comments on international treaties and agreements on ODA and
concessional loans; provide inputs for proposals to sign international treaties
and agreements on ODA and concessional loans.
4. Carry out foreign affairs
procedures on the signing and implementation of international treaties;
organize the filing, copy and publication of treaties on ODA and concessional
loans in accordance with the Law on International Treaties.
5. Grant authorization to
sign agreements on ODA and concessional loans.
6. Participate in evaluation
of the programs and projects at the request of competent authorities.
7. Monitor and inspect
compliance with procedures for signing and implementing international treaties
and agreements on ODA and concessional loans as prescribed by law.
Article
96. Duties and entitlements of Ministries, Ministry-level agencies and
Governmental bodies
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2. Formulate program/project
proposals and reports on investment policy proposal or pre-feasibility study
reports, documents of the projects or non-project assistance and submit them to
the competent authorities for approval under their competence.
3. Coordinate with the
proposing agency in proposing the competent authorities to sign specific
international treaties and agreements on ODA, concessional loans for the
programs or projects in which they act as the managing agency as stipulated in
clauses 2, 3, and 4 of Article 29 and clauses 2 and 3 of Article 32 of this
Decree, and execute such international treaties and agreements according to the
regulatory provisions.
4. Propose the Government to
sign specific international treaties on ODA grant as prescribed in clause 1 of
Article 29 hereof and implement such international treaties in accordance with
regulatory provisions on international treaties; propose the Prime Minister to
sign agreements on ODA grant as prescribed in clause 1 of Article 32 hereof and
implement such agreement as prescribed by law.
5. Perform state management
tasks regarding ODA and concessional loans under their mandate as prescribed by
law.
6. Ensure information
disclosure, transparency and accountability for effectiveness of ODA and
concessional loans provided for the programs and projects under their mandate.
Article
97. Duties and entitlements of provincial People’s Committees
1. Coordinate with the
Ministry of Planning and Investment, other Ministries and concerned agencies in
developing strategies and plans for attraction, coordination, management, and
use of ODA and concessional loans; develop policies and measures on
coordination and improvement of effectiveness of ODA and concessional loans
within their provinces/cities.
2. Formulate program/project
proposals and reports on investment policy proposal or pre-feasibility study
reports, documents of the projects or non-project assistance and submit them to
the competent authorities for approval under their competence.
3. Coordinate with the
proposing agency in proposing the competent authorities to sign specific
international treaties and agreements on ODA, concessional loans for the
programs or projects in which they act as the managing agency as stipulated in
clauses 2, 3, and 4 of Article 29 and clauses 2 and 3 of Article 32 of this
Decree, and execute such international treaties and agreements according to the
regulatory provisions.
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5. Direct and organize land
acquisition, site clearance, and compensation tasks of programs and projects in
their provinces in accordance with law and international treaties on ODA and
concessional loans to which the Socialist Republic of Vietnam is a
signatory.
6. Perform state management
tasks regarding ODA and concessional loans in their provinces as prescribed by
law.
7. Ensure information
disclosure, transparency and accountability for effectiveness of ODA and
concessional loans provided for the programs and projects under their mandate.
8. Provide capital for central
government budget to fully repay foreign lenders by due dates with regard to
the programs and projects applying on-lending of ODA and concessional loans
from the central government budget to the local government budgets.
Chapter
X
IMPLEMENTATION
PROVISIONS
Article
98. Transition provisions
1. For programs and projects
funded by ODA loans and concessional loans whose portfolio of projects have
been approved by the competent authorities, any amendments or supplements in the
course of implementation shall follow the regulations on revising investment
policy under this Decree.
2. Programs and projects
whose Proposals and investment policies have been approved before the effective
date of this Decree may proceed with subsequent order and procedures prescribed
under this Decree.
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4. For technical assistance
projects/non-project assistance funded by ODA grants whose implementation policies
and project/non-project documents have been approved before the effective date
of this Decree, if any amendments in the course of implementation does not lead
to transformation into technical assistance projects or non-project assistance
falling under the approving competence prescribed under clause 1 of Article 23
of this Decree, the managing agency shall proceed with the order and procedures
for revising project/non-project documents prescribed under clause 2 of Article
27 of this Decree. If the amendment leads to transformation into technical
assistance projects or non-project assistance falling under the approving
competence prescribed under clause 1 of Article 23 of this Decree, the managing
agency shall proceed with the order and procedures for approving and revising
prescribed under Article 25, 26 and 27 of this Decree.
5. For specific international
treaties on the signed ODA and concessional loans, these treaties shall continue
to apply. In case of revision thereof, regulations laid down in this Decree
shall prevail.
6. For currently ongoing
umbrella projects, the managing agency of the umbrella project does not have
the function of allocating and assigning fund plans to component projects.
7. Regarding revision of
investment policies:
a) For umbrella programs and
projects whose funding portfolios or investment policies are approved by
competent authorities, amendments to investment policies shall be subject to
the regulations laid down herein. Managing agencies of component projects of
umbrella program or project shall send written documents, enclosing explanatory
reports, relevant dossiers and documents, to the managing agency of the latter
for compiling purposes, and proceed with the order and procedures for revision
of investment policies in accordance with applicable regulations;
b) For projects where state
enterprises are on-lent all ODA and concessional loans, if their funding
portfolios or investment policies have been approved before the effective date
of this Decree: Amendments to investment policies and use of surplus fund for
improvement of their efficiency shall be subject to the regulations laid down
in Chapter II herein according to the principles that the previous managing
agency is the agency proposing revision or amendments; the level at which the
authority previously decided investment policy and investment policy is the
level at which the authority has the competence in deciding amendments to the
investment policy or decision. In case of use of surplus fund
for new projects, regulations laid down in Chapter VI hereof shall prevail.
8. As for programs/projects
or non-project assistance funded by ODA grants, if they are approved before the
effective date of this Decree, the financial management regime shall be subject
to regulations of applicable law on financial state management for foreign
grants classified as state budget revenues.
Article
99. Implementation
1. Ministers, Heads of
Ministry-level agencies, Heads of Governmental bodies, Chairpersons of People’s
Committees of provinces and centrally-affiliated cities, other concerned
organizations and individuals shall be responsible for implementing this
Decree.
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Article
100. Entry into force
1. In case where reference
documents mentioned in this Decree are replaced or revised, the substitute or
revised document shall prevail.
2. State enterprises using
on-lent ODA and concessional loans of foreign donors shall be subject to
Chapter VI herein.
3. This Decree shall take
effect as from the signature date and replace the Government’s Decree No.
56/2020/ND-CP dated May 25, 2020, regarding management and use of the official
development assistance (ODA) and concessional loans of foreign donors.
FOR GOVERNMENT
PP. PRIME MINISTER
DEPUTY PRIME MINISTER
Pham Binh Minh