Circular No. 107/2018/TT-BTC dated November 15, 2018 of the Ministry of Finance prescribing management and final accounts of investments in construction projects financed by public investments of Vietnams overseas representative missions and other Vietnamese overseas agencies

THE MINISTRY OF FINANCE

Circular No. 107/2018/TT-BTC dated November 15, 2018 of the Ministry of Finance prescribing management and final accounts of investments in construction projects financed by public investments of Vietnams overseas representative missions and other Vietnamese overseas agencies

Pursuant to the Law on State Budget dated June 25, 2015;

Pursuant to the Law on Public Investment dated June 18, 2014;

Pursuant to the Law on Overseas Representative Missions of the Socialist Republic of Vietnam dated June 18, 2009;

Pursuant to the Law on Amendments and Supplements to the Law on Overseas Representative Missions of the Socialist Republic of Vietnam dated November 21, 2017;

Pursuant to the Government’s Decree No. 77/2015/ND-CP dated September 10, 2015 on Mid-term and Annual Public Investment Plans;

Pursuant to the Government s Decree No. 136/2015/ND-CP dated December 31, 2015guiding the implementation of a number of articles of the Law on Public Investment;

Pursuant to the Government’s Decree No. 37/2015/ND-CP dated April 22, 2015 prescribing in detail construction contracts;

Pursuant to the Government s Decree No. 163/2016/ND-CP dated December 21, 2016 on detailing a number of articles of the Law on the State Budget;

Pursuant to the Government’s Decree No. 104/2018/ND-CP dated August 8, 2018 on detailing a number of articles of the Law Amending and Supplementing a Number of Articles of the Law on Overseas Representative Missions of the Socialist Republic of Vietnam;

Pursuant to the Government’s Decree No. 120/2018/ND-CP dated September 13, 2018 on amendments to a number of articles of the Government’s Decree No. 77/2015/ND-CP dated September 10, 2015 on annual and medium-term public investment plan, No. 136/2015/ND-CP dated December 31, 2015 guiding the implementation of a number of articles of the Law on Public Investment and No. 161/2016/ND-CP dated December 02, 2016 on stipulating a special mechanism for construction investment management of a number of projects under national target programs during 2016-2020;

Pursuant to the Government’s Decree No. 117/2017/ND-CP dated October 19, 2017 stipulating on management and use of state budget for some external activities;

Pursuant to the Government s Decree No. 87/2017/ND-CP dated July 26, 2017 on defining the functions, tasks, powers and organizational structure of the Ministry of Finance;

Upon the request of the Director of the Investment Authority;

The Minister of Finance hereby promulgates the Circular that prescribes the management and final accounts of investments in construction projects financed by public investments of Vietnam’s overseas representative missions and other Vietnamese overseas agencies.

Chapter I

GENERAL PROVISIONS

Article 1. Scope of adjustment and subjects of application

1. This Circular addresses matters related to the management, payment and final accounts of investments in investment and construction projects financed by public investments of Vietnam’s overseas representative missions and other Vietnamese overseas agencies (hereinafter referred to as overseas Vietnamese bodies) under the provisions of Article 3 in the Government s Decree No. 117/2017/ND-CP dated October 19, 2017 prescribing the use and management of state budget for diplomatic activities, including projects in purchase, construction and renovation of offices and houses; investment projects for renting land, house for a long term (above 30 years) of overseas Vietnamese bodies.

2. Subjects of application of this Circular shall comprise organizations and individuals related to the management, payment and final accounts of investment and construction projects of overseas Vietnamese bodies financed by public investments.

3. Investment and construction projects of overseas Vietnamese bodies that are financed by other funding sources shall be encouraged to apply payment principles prescribed herein.

Article 2. Management principles

1. The management, payment and final accounts of public investments in investment projects in construction of overseas Vietnamese bodies shall be subject to specific regulations set forth herein. Matters related to management, payment and final accounts which are not prescribed herein shall be subject to applicable regulations on management, payment and final accounts of state budget-funded investments.

2. Advance on and payment of investments in projects of overseas Vietnamese bodies in foreign countries may be based on contracts that have already signed and are conformable to regulations of laws of host countries and Vietnam.

3. Presiding ministries and sectoral administrations (hereinafter referred to as presiding ministry) shall act on behalf of project owners to make payment transactions with the State Treasury. The State Treasury shall make payments to projects at the requests of presiding ministries.

Chapter II

SPECIFIC PROVISIONS

Article 3. Inspection of distribution of annual investments

The inspection of distribution of the investment budget to investment and construction projects of overseas Vietnamese bodies financed by the state budget-funded capital shall be subject to regulations on the Inspection of distribution of investments laid down in clause 1 of Article 2 in the Circular No. 52/2018/TT-BTC dated May 24, 2018 of the Ministry of Finance on amendments and supplements to certain articles of the Circular No. 08/2016/TT-BTC dated January 18, 2016 of the Ministry of Finance prescribing the management and payment of state budget-funded investments, the Circular No. 108/2016/TT-BTC dated June 30, 2016 of the Ministry of Finance on amendments and supplements to certain articles of the Circular No. 08/2016/TT-BTC dated January 18, 2016 of the Ministry of Finance.

(Table of distribution of the investment budget given in Appendix No. 01 hereto).

After the investment budget is approved, the presiding ministry shall be responsible for inputting its data into the TABMIS program, even in case of using the Fund for temporary custody of state budget revenues at overseas Vietnamese bodies.

Article 4. Account opening

1. The presiding ministry (or the project owner in case of a domestic project owner) shall open an account used for payment of investments to projects at the State Treasury.

2. The opening of accounts shall be subject to regulations of the Ministry of Finance on the regime for opening and using accounts at the State Treasury.

Article 5. Project’s legal documents for single submission

In order to serve the needs of performing the tasks of management and payment of investments, the presiding ministry shall send the State Treasury branch, where a current account is opened, basic project-related documents (original copies or certified true copies with attestation by the presiding ministry which are sent one time until an investment project is completed, except in case where these documents need to be revised or supplemented), including:

1. Local documentation requirements for pre-investment capital:

a) Decision to give permission to make investment preparations and estimate of pre-investment capital of a competent authority;

b) Decision on approval of results of selection of contract-winning bidders in accordance with regulations in force;

c) Contract between the project owner and the contractor.

2. Legal documentation requirements for capital used for implementation of investments:

a) Legal documentation requirements for investment projects in construction, repair and renovation:

- Decision on approval of an investment project (or Decision on approval of a technical and economic report on projects subject to only one requirement for preparation of economic-technical reports), issued by a competent authority, and decisions on modification of projects (if any);

- Decision on approval of results of selection of contract-winning bidders; In particular, if these projects are implemented at project owners expense, written documents stating permission of competent authorities to implement them on their own (in the absence of investment decisions of competent authorities) must be submitted;

- Contract between the project owner and the contractor or the supplier and other associated documents such as: Contract annexure, specific and general terms and conditions relating to the advance payment and settlement of contract, contract on supplements or modifications (if any); In particular, in case of implementation of projects at project owners’ expense, internally-used task assignment or lump-sum payment documents must be submitted;

- Cost estimate and decision on approval of cost estimate of competent authorities in case projects are implemented through bidder appointment procedures or at project owners expense and other tasks are performed without contracts (except projects subject to only one requirement concerning the preparation of economic - technical reports).

b) Legal documentation requirements for projects in the purchase of real property for the construction of offices and houses:

- Decision on approval of an investment project (or Decision on approval of a technical and economic report on projects subject to only one requirement for preparation of economic-technical reports), issued by a competent authority, and decisions on modification of projects (if any);

- Agreement in principle on the purchase of real property which is used as a basis for payment of deposits (if any);

- Real property sales contract;

- Deposit guarantee (if deposits are prescribed in contracts).

c) Legal documentation requirements for projects in both purchase of real property and construction or renovation of real property: Above-stated basic documents.

d) Legal documentation requirements for investment projects in the long-term renting of real property (above 30 years) for implementation of investment and construction projects:

- Decision on approval of an investment project (or Decision on approval of a technical and economic report on projects subject to only one requirement for preparation of economic-technical reports), issued by a competent authority, and decisions on modification of projects (if any);

- Agreement in principle on the hiring of real property which is used as a basis for payment of deposits (if any);

- Real property lease contract;

- Deposit guarantee (if deposits are prescribed in contracts);

- Decision on approval of results of selection of contract-winning bidders; In particular, if these projects are implemented at project owners expense, written documents stating permission of competent authorities to implement them on their own (in the absence of investment decisions of competent authorities) must be submitted;

- Contract between the project owner and the contractor or the supplier and other associated documents such as: Contract annexure, specific and general terms and conditions relating to the advance payment and settlement of contract, contract on supplements or modifications (if any); In particular, in case of implementation of projects at project owners’ expense, internally-used task assignment or lump-sum payment documents must be submitted;

- Cost estimate and decision on approval of cost estimate of competent authorities with respect to project workloads and items in case projects are implemented through bidder appointment procedures or at project owners expense and other tasks are performed without contracts (except projects subject to only one requirement concerning the preparation of economic - technical reports).

Article 6. Payment of advances and recovery of advances

Payment of advances and recovery of advances for investment and construction projects of overseas Vietnamese bodies shall conform to regulations on payment of advances and recovery of advances on state budget-funded investments laid down in the Circulars of the Ministry of Finance such as Circular No. 08/2016/TT-BTC dated January 18, 2016, Circular No. 108/2016/TT-BTC dated June 30, 2016 and Circular No. 52/2018/TT-BTC dated May 24, 2018.

As regards construction contracts signed abroad, if they are executed under regulations of host countries and laws of Vietnam on payment of advances, recovery of advances and contract advance guarantee, signed contracts must apply.

In specific cases where projects of particular nature need advances greater than the prescribed limit, the State Treasury shall pay advances which do not exceed the limit of investments to be allocated to a project in a financial year upon the presiding ministry’s request.

In specific cases where projects of particular nature need advances even when documents evidencing advances prescribed herein are not sufficient in accordance with regulations of host countries, the presiding ministry must send explanatory documents to the Ministry of Finance to request its review and grant of its decision.

In this case, the presiding ministry shall send the written request for advances on investments specific to project items (specifying monetary amount, accounts and beneficiaries). The written request for payment of investments made by the presiding ministry shall be subject to the Appendix No.05 hereto.

Article 7. Payment of costs of completed project workloads

1. As for workloads executed through construction contracts, the contract settlement must be relevant to contract types, prices and terms and conditions thereof. The number of times of payment, stage in which payments are made, payment time, payment duration, payment documents and requirements must be clearly regulated in each contract. The project owner shall be responsible for complying with requirements for application of contract prices under applicable state regulations.

As regards construction contracts signed abroad, if they are executed under regulations of host countries and laws of Vietnam, payments shall be made under terms and conditions of signed contracts.

2. In case of demanding payment of investments, a project owner may send the presiding ministry the following documents:

a) Documentation requirements for investment projects in construction, repair and renovation:

- Bill of quantities already completed under contract terms and conditions (Appendix No. 02A; 02B hereto or sample bill of quantities agreed upon in a contract in case that contract is signed abroad).

- Request for payment of the project owner – Appendix No. 04 hereto;

- If quantities are greater than those primarily specified in a contract, the project owner must send a Bill of additional quantities as a basis for requesting payments with endorsement by the representative of the contract procuring party and the contract winning party (Appendix No. 03 prescribed herein or according to the sample bill of additional quantities as agreed upon in a contract if that contract is signed abroad).

b) Documentation requirements for projects in the purchase of real property or the long-term renting of real property (above 30 years): Payment (including payment of deposits if any) shall be subject to real property sale and rent contracts. The project owner shall send the presiding ministry the written request for payment made by the project owner.

c) Documentation requirements for projects in both the purchase of real property and the construction, repair or renovation of real property: Payment documents on both aforesaid projects.

3. Based on the aforestated documents submitted by the project owner, the presiding ministry must prepare payment request documentation for submission to the State Treasury, including:

a) A written request for payment of investments made by the presiding ministry based on specific project items (specifying monetary amount, accounts and beneficiaries);

b) As regards projects in construction, repair and renovation, attached payment request documentation shall include:

- Bill of quantities already completed under contract terms and conditions (Appendix No. 02A; 02B hereto or sample bill of quantities agreed upon in a contract in case that contract is signed abroad).

- Bill of additional quantities as a basis for requesting payments with endorsement by the representative of the contract procuring party and the contract winning party (Appendix No. 03 prescribed herein or according to the sample bill of additional quantities as agreed upon in a contract if that contract is signed abroad) must be submitted if additional quantities are greater than the quantities specified in the primary contract.

c) In case of demanding payments in the domestic currency (VND), the presiding ministry shall prepare the Request form for withdrawal of investments(according to the form approved by the State Treasury).

d) In case of demanding payments in a foreign currency, the presiding ministry shall prepare the Request form for withdrawal of estimated state budget-funded amounts in a foreign currency(according to the form approved by the State Treasury).

dd) Other documents evidencing money transfer (if any).

4. As for workloads already completed without contracts, based on the Bill of completed quantities prepared by the project owner, the presiding ministry shall submit the payment request documentation to the State Treasury. The request documentation for payment of investments shall be subject to clause 2 of Article 9 in the Circular No. 08/2016/TT-BTC dated January 18, 2016 of the Ministry of Finance.

5. Inspection and payment at the State Treasury:

Based on payment request documentation of the presiding ministry, the annual investment budget allocated to each project, documents and materials in each project, within a duration of 4 working days of receipt of all required documents, the State Treasury shall carry out the inspection of payment of investments in projects in accordance with regulations in force.

The State Treasury shall carry out the inspection of payments behind the principle "pay first, check later" applied to each payment installment and the principle "check first, pay later" applied to the final payment installment in a contract. Based on these principles, the State Treasury shall provide specific instructions on the method of control of payments in the State Treasury system and ensure advantages given to the project owner and contractor and compliance with regulations of the State. Total advance and payment arising in a year shall not be allowed to exceed the annual investment budget allocated to projects.

In case where documentation fails to meet regulations, within the maximum duration of 04 working days of receipt of payment request documentation, the State Treasury shall send a written notification to the presiding ministry to request it to prepare completed documentation.

6. Payments made in foreign currencies:

If the project owner needs to pay the contractor or the seller or lessor of real property in a foreign currency, the following regulations must be observed:

a) In case of none of the payments in a foreign currency made from the concentrated foreign currency fund of the State, the presiding ministry or the project owner may take initiative in using amounts paid in advance or paid by the State Treasury to purchase foreign currency cash from banks to pay beneficiaries. In case of purchasing foreign currency cash from commercial banks, the State Treasury making advance payments or payments must transfer money to accounts of commercial banks with which the presiding ministry has signed contracts to purchase foreign currency cash for projects.

b) In case of demanding foreign currency payments from the concentrated foreign currency fund of the State:

- On the basis of the plan for investments in and demands of annual foreign currency spending on projects within its jurisdiction, the presiding ministry shall prepare the general chart of allocations of the annual public investment budget in Vietnamese dong converted into US dollars at the exchange rate quoted by the Ministry of Finance at the time of allocation, which does not exceed the annual investment budget allocation, for submission to the Ministry of Finance and the State Treasury.

(Table of budget expenditures in foreign currency given in Appendix No. 01 hereto).

- In case of demanding payments in a foreign currency, the presiding ministry shall prepare the Request form for withdrawal of state budget funds in a foreign language for submission to the State Treasury (sample table No. C2-06/NS attached to the Circular No. 77/2017/TT-BTC dated July 28, 2017 of the Ministry of Finance, providing instructions on the accounting regime of the State Budget and operations of the State Treasury).

- Overseas Vietnamese bodies shall be entitled to use the Fund for temporary custody of state budget revenues retained at these bodies for payment of investments approved by competent authorities through the notification of the Ministry of Foreign Affairs. When needing to spend foreign currency cash from the Fund, prepare 02 copies of the form of request for withdrawal of investments and recording of state budget revenues (used in case of spending such cash from the Fund for temporary custody of state budget revenues at overseas Vietnamese bodies) regulated by the Ministry of Finance for submission to the State Treasury.

c) The State Treasury shall disburse foreign currency cash upon the request of the presiding ministry, specifically as follows:

- In case of foreign currency payments from the concentrated foreign currency fund of the State: Based on annual public investment budget allocations in Vietnamese dong converted into the US dollar deposited by the presiding ministry from the beginning of each year and the request form for withdrawal of state budget-funded cash in a foreign language of the presiding ministry as prescribed above, the State Treasury shall make cash withdrawal from the concentrated foreign currency fund for payment purposes.

- In case of using the fund for temporary custody of state budget revenues at overseas Vietnamese bodies: Based on annual state budget allocations in Vietnamese dong converted into the US dollar which are deposited by the presiding ministry from the beginning of a year and copies of evidencing documents that the Ministry of Foreign Affairs has been submitted according to the above-stated regulations, the State Treasury shall carry out the inspection of all related information, sign on copies of evidencing documents and take the following steps: Using the first copy "Form of request for withdrawal of investments and recording of state budget revenues" for recording state budget revenues "Diplomatic fees and other revenues abroad" and posting accounting entries indicating expenditures of the Ministry of Foreign Affairs (equivalent to chapters, accounts, items and sub-items of the Index of State Budget). The remaining copies shall be returned to the Ministry of Foreign Affairs for its posting of entries in its balance sheet and inform overseas Vietnamese bodies to set aside amounts from the Fund for temporary custody of state budget revenues at overseas Vietnamese bodies for uses.

Article 8. Reporting regime

1. As for project owners, presiding ministries shall follow the reporting regime specified in the Circular No. 82/2017/TT-BTC dated August 15, 2017 of the Ministry of Finance prescribing the regime and form of reporting of payment of the public investment budget.

2. Reporting regime of the State Treasury:

a) Perform the reporting regime specified in the Circular No. 82/2017/TT-BTC dated August 15, 2017 of the Ministry of Finance prescribing the regime and form of reporting of payment of the public investment budget.

b) At the end of the budgetary year, the State Treasury shall consolidate investment payment data into the report to the same-level finance institute according to the regulations on final accounts of the state budget. Concurrently, the State Treasury shall confirm the number of payments arising in a year, the cumulative amount of investments paid from the date of commencement of projects to the end of the state budget year for specific projects developed by project owners.

Article 9. Final accounts of investments

1. Annual final accounts of investments

The annual final accounts of investments shall be subject to regulations of the Law on State Budget and instructions of the Ministry of Finance in the Circular No. 85/2017/TT-BTC dated August 15, 2017 prescribing the annual final accounts of state budget-funded investments specific to budgetary years).

2. Final accounts of investments in completed projects

The final accounts of investments in completed projects shall follow instructions of the Ministry of Finance in the Circular No. 09/2016/TT-BTC dated January 18, 2016 providing instructions on the final accounts of costs of completed projects covered by the state budget funds and the Circular No. 64/2018/TT-BTC dated July 30, 2018 amending and supplementing certain Articles of the Circular No. 09/2016/TT-BTC dated January 18, 2016 providing instructions on the final accounts of costs of completed projects financed by the state budget funds.

Article 10. Rights and responsibilities of relevant bodies

1. All-level financial institutions:

a) Collaborate with competent authorities in providing guidance on and inspecting payment and final accounts of investments in investment and construction projects financed by public investments of overseas Vietnamese bodies.

b) Have the right to request the State Treasury and presiding ministries to provide documents, materials and information necessary to perform the tasks of state management of financing for investments, including documents serving the needs of inspection of distribution of investments and documents on reporting of implementation of plans and investments according to regulations on the reporting regime and materials serving the needs of audit of final accounts of investments in accordance with regulations in force.

c) Implement regulations on inspection of the distribution of investments under the provisions of Article 3 herein.

2. State Treasury:

a) Instruct presiding ministries to open accounts used for payment of investments.

b) Inspect investments and pay them on a timely and sufficient manner to projects if all prescribed requirements and schedule are met.

c) Send written opinions to presiding ministries on payment reductions or refusals, and respond to queries of presiding ministries about payment of investments.

d) The State Treasury shall control payments on the basis of documents provided by presiding ministries or project owners, and according to principles of payment already prescribed in regulations in force, shall not bear responsibility for the application of bidder selection forms; shall not assume responsibility for accuracy of unit prices, quantities and values of payment requests. In case where decisions of competent authorities are in breach of regulations in force, it shall be necessary to make written appeals for revision of these decisions and clarify suggestions. In case of excess of the prescribed time without receipt of responses or responses which do not conform to regulations, it shall be necessary to report to higher-level competent authorities and financial institutions to request their consideration and possible actions.

dd) Regularly push presiding ministries to request project owners to comply with regulations of the advance payment and recovery of advances in order to immediately recover advances which are overdue or are used for incorrect purposes.

e) Carry out reporting regimes and final accounts of investments in accordance with regulations in force.

3. Presiding ministries:

a) Guide, inspect and encourage project owners under their jurisdiction to carry out plans for investments, receive and use investments for right purposes and in conformance to the State s regulations. Bear responsibility to the Government and laws on the number of investments requested to be paid in advance and to be paid to projects within their jurisdiction.

b) Bear responsibility for inspecting legality of records, materials and evidencing documents on projects before submitting them to financial institutions and State Treasury. Before sending records, materials and evidencing documents written in foreign languages to financial institutions and state treasuries, they must be translated into Vietnamese (or their important information shall be translated upon the request of the financial institution) and must be original copies or certified true copies with the presiding ministry’s endorsement stamp. In urgent cases where Vietnamese translation is not made on time, the signature and stamp of the presiding ministry held responsible for accuracy and legality of these documents must be affixed.

c) Bear responsibility for inspecting the accuracy of quantities, unit prices and values of payment requests; ensure the legality of data and materials contained in documentation provided for State Treasury and other State agencies.

d) On a quarterly basis, act on behalf of the project owner to preside over collaboration with the State Treasury in reporting and assessing implementation of advance payment of investments and recovery of advances on investments.

e) Carry out reporting regimes and final accounts of investments in accordance with regulations in force.

4. Project owners:

a) Implement functions and duties assigned under regulations in force. Strictly comply with legislative regulations on the regime for financial management of investments.

b) Carry out the acceptance testing of quantities and prepare documentation on and requests for payment to contractors according to the schedule prescribed in the contract. Bear responsibility for the accuracy of completed quantities, unit prices and values of payment requests; ensure the legality of data and materials contained in documentation submitted to presiding ministries.

c) Bear responsibility before laws and to competent authorities for the organization of the selection of contractors in accordance with regulations in force.

d) Report in time and fully according to regulations to bodies making investment decisions and relevant state agencies; provide required documents and materials to serve the needs of performing the tasks of management and payment of investments; submit to the inspection by the investment decision-making agency on the use of investment capital and comply with the State s investment policies and regimes.

dd) Regularly check the implementation of advance capital and recover advance capital from contractors, have obligations to check before, during and after making advance payments to contractors.

e) Receive and use investment capital for the right purposes and in accordance with the State’s regimes; implement the reporting regime and final accounts of investments used according to regulations.

Chapter III

IMPLEMENTATION PROVISIONS

Article 11. Transitional provision

As regards contracts already signed and currently implemented prior to the entry into force of this Circular, payment and final accounts of investments in investment and construction projects of overseas Vietnamese bodies may be continued according to previous regulations.

Article 12. Implementation provisions

1. This Circular takes effect on January 01, 2019 and replaces the Circular No. 120/2008/TT-BTC dated December 09, 2008 of the Ministry of Finance providing guidance on payment and final accounts of investments in investment and construction projects of overseas Vietnamese bodies and other agencies of Vietnam abroad.

2. In the course of implementation, in case where legislative documents used as referents in this Circular are amended, supplemented or replaced by other legislative documents, the latter shall be applied.

3. In the course of implementation of this Circular, if there is any difficulty likely to arise, entities concerned should send timely feedbacks to the Ministry of Finance for its review and decision on any necessary amendment or supplement./.

For the Minister

The Deputy Minister

Tran Van Hieu 

* All Appendices are not translated herein.