Circular No. 166/2011/TT-BTC dated November 14, 2011 of the Ministry of Finance defining on the management and use of project preparation costs and funding for operations of competent state agencies during the management of projects; some financial targets of project contracts; conditions and payment method for investor to implement project in the form of contract of Build - Transfer; settlement of project building value in the form of contracts of Build - Operation – Transfer, Build - Transfer – Operation, Build – Transfer

CIRCULAR

DEFINING ON THE MANAGEMENT AND USE OF PROJECT PREPARATION COSTS AND FUNDING FOR OPERATIONS OF COMPETENT STATE AGENCIES DURING THE MANAGEMENT OF PROJECTS; SOME FINANCIAL TARGETS OF PROJECT CONTRACTS; CONDITIONS AND PAYMENT METHOD FOR INVESTOR TO IMPLEMENT PROJECT IN THE FORM OF CONTRACT OF BUILD - TRANSFER; SETTLEMENT OF PROJECT BUILDING VALUE IN THE FORM OF CONTRACTS OF BUILD - OPERATION – TRANSFER, BUILD - TRANSFER – OPERATION, BUILD – TRANSFER

Pursuant to the State Law No.02/2002/QH11 dated 16/12/2002;

Pursuant to the Decree No.108/2009/ND-CP dated 27/11/2009 of the Governmenton investment in the form of build-operate-transfer (BOT), build-transfer-operate (BTO), build-transfer (BT) contracts; the Decree No.24/2011/ND-CP dated 5/4/2011 of the Government amending, supplementing a number of Articles of the Decree No.108/2009/ND-CP dated 27/11/2009 on investment in the form of contracts of BOT, BTO, BT;

Pursuant to the Decree No.118/2008/ND-CP dated 27/11/2008 defining the functions, tasks, powers and organizational structure of the Ministry of Finance;

The Ministry of Finance guides some contents related to the implementation of the projects in the form of contracts of BOT, BTO, and BT as follows:

Chapter 1.

GENERAL PROVISIONS

Article 1. Scope of governing:

This Circular guide some contents related to the implementation of projects in the form of contracts of BOT, BTO, and BTincluding:

1. The management and use of project preparation costs and operating funds of competent state agencies in the management of the projects of BOT, BTO, BT stipulated in Decree No.108/2009/ND-CP dated 27/11/2009 of the Government;

2. A number of key financial targets of the project contracts to follow the form of BOT, BTO, BT (hereinafter referred to as the project contract);

3. Conditions and method of payment made for investor performing the BT project;

4. Settlement of value of the projects implemented in the form of contracts of BOT, BTO, and BT.

Article 2. Subjects of application

Investors, competent state agencies to sign and implement the project contract, agencies, organizations, individuals and enterprises related to the implementation of projects under the concerned provisions of the State and provisions of this Circular.

Chapter 2.

MANAGEMENT AND USE OF PROJECT PREPARATION COSTS AND OPERATING FUNDS OF COMPETENT STATE AGENCIES

Article 3. Funding for the operation of competent state agencies:

1. State budget sources balance in the annual regular expenditure plan of the ministries, branches, and provincial-level People s Committees for the State management activities of competent state agencies to implement the projects of BOT, BTO, and BT.

2. State budget sources balance in the annual expenditure plan for investment and development of the ministries, branches and provincial-level People s Committees for expenses related to the preparation, implementation of project, including: the formulation, appraisal of feasibility study report or project proposals, preparation of another project, formulation of tendering dossiers and organization of bidding for the projects bidding for selection of investors, project quality appraisal, inspection and supervision of the site and other expenses.

3. The competent state agency establishs specialized department or appoints subordinate professional agencies to exercise their rights and perform obligations as stipulated in the project contracts; and also be responsible for allocating funds for specialized department or professional agencies to exercise the rights and perform obligations assigned.

Article 4. The items of expenditure, collection of the competent state agencies

The items of expenditure, collection of the competent state agencies in the management and implementation of investment projects of BOT, BTO, BT and performance of other duties include:

1. The spending items to serve the State management tasks:

a) Spending for formulation and publication of lists of project.

b) Spending for the purchase of stationaries.

c) Spending for communication information.

d) Spending for conferences, seminars, and talks.

đ) Spending for the joint working group and the costs of leasing, hiring employees, experts in case of necessity.

e) Other expenses.

2. The items of expenditure for preparation, management of project implementation:

a) Expenses for hiring consultants for making the feasibility study report of project or project proposal (if any), including expenses related to the preparation of other projects; and tenderring dossiers for selection of investors.

b) Expenses for organizing bidding for selection of investors. Where having revenues from the sale of tenderring dossiers, the cost for this work is done from the revenue obtained from sale of tenderring dossiers under the provisions of the state.

c) Expenses for work quality irregular appraisal and before handover in accordance with the contract provisions.

d) Expenses for inspection and supervision of the site.

đ) Other expenses.

3. Collection items of the competent state agencies

a) Collection from the project preparation costs paid by the selected investor (if any).

b) Proceeds from sale of tendering dossiers.

c) Other collections (if any).

Article 5. Formulation, approval, and assignment of estimates for the activities of the competent state agencies:

1. Bases for formulation of estimates:

a) The list of projects which have been approved by competent authorities or proposal of projects out of the list has been approved by competent authorities added to the list done.

b) Plan for implementation of projects approved by competent authorities.

c) The policies, regimes and standards and norms defined by the competent state agencies.

2. Principles of making estimates:

a) The expenditure items which have been provided for in construction investment expenditure, including spending for formulation, appraisal of project feasibility study report or project proposal (if any) and expenditure for preparing other projects and expenditures for making tendering dossiers and spending for quality appraisal of works: formulation of estimates is made in accordance with the State provisions in estimating construction investment costs.

b) The expenditure items for the state management of the competent state agencies of the regular expenditure on the activities of the state agencies shall comply with state regulations regarding the estimation of regular expenditures from the state budget.

3. Formulation and execution of the estimates:

a) Each year, based on the the time of making estimates of state budget in accordance with the Law on State Budget, the competent State agencies make expenditure estimate to perform the tasks specified in Clause 1, Clause 2 Article 4 of this Circular, synthesize generally in the annual budget estimates of agencies and units according to each type of capital source submitting to the competent authorities for approval.

b) The approval of the annual budget estimates of the competent state agencies comply with current regulations of the State for each capital source.

c) Allocation of budget estimates: After the annual budget estimates are approved by the competent authorities, heads of agencies, units shall allocate and assign the operation funding estimates of the competent State agencies according to the principle of ensuring the specialized department or professional agency to use in accordance with policy, funding regime to exercise the rights and perform obligations assigned. Estimate expenditure after being approved, to be sent a copy to the State Treasury where the competent state agency opens its account for control and payment.

d) During the implementation of the approved estimates, if there is anything arose due to additional projects out of the list which have been approved by competent authorities, the competent state agency conducts to submit for approval, additional adjustment of estimates according to provisions to make the works arose.

Article 6. Management, payment

The management and payment of costs for the operations of the competent State agencies shall comply with current regulations of the State on management, payment of capital of investment and development of the state budget and management, payment for regular expenses on operating expenses of the state agencies.

Article 7. Handling revenues of the compentent state agencies

All revenues generated in the year of the competent State agencies including revenues from the project preparing costs paid by the selected investor (if any), revenues from the sale of left tendering dossiers (after made payment for the organization of investment as prescribed) shall be remitted into the state budget.

Article 8. Settlement

1. The end of plan year, ministries, branches and provincial-level People s Committees shall settle the use of state budget funds for the management of the implementation of the projects of BOT, BTO and BT in accordance with provisions of the state; and settle the investment expenditures made by the competent state agencies.

2. For the projects implemented in the form of BTO, BT contracts, when the projects are completed and put into use, the competent state agencies sum investment expenditures made by the competent state agencies settled annually in settlement of completed projects in accordance with provisions of the Ministry of Finance.

Article 9. Inspection of the management and use of funds

Every year, regularly or irregularly, the ministries, branches and provincial People s Committees, financial agencies at all levels inspect the use of funds for management for the activities under the responsibility of the competence state agencies in the management of the implementation of the projects of BOT, BTO and BT under their management scope to promptly detect and handle violations in the management of the concerned agencies.

Chapter 3.

SOME KEY FINANCIAL TARGETS OF PROJECT CONTRACTS

Article 10. Equity of investors

1. Investors must ensure equity ratio of the project enterprise on the total project investment capital as stipulated in Article 5 of Decree No.108/2009/ND-CP of the Government to participate in project implementation.

2. Equity of the project enterprise is the equity of investor committing to contribute capital according to the charter of the project enterprise. Equity of the investor is determined on the basis of the latest year financial report of the investor audited by independent audit.

3. If at the same time the investor simultaneously performs many different projects, it must ensure that total equity must satisfy all the projects at the rate specified.

4. The investor must commit and take responsibility before law for the accuracy and legality of the data and documents related to equity, portfolio of ongoing projects, and allocation of equity for the projects being implemented to the time of the project contract negotiation.

Article 11. Raising capital of investors

1. To implement the project, apart from equity under the provisions of Decree No.108/2009/ND-CP of the Government, investors, project enterprises may mobilize other lawful capital sources for implementing the contract. This is the capital raised by investors to implement the project to the time of contract negotiation committed or agreed in writing by the investors and capital providers.

2. Investors and project enterprises must raise capital in accordance with the investment schedule specified in the contract of project and report the capital mobilization to the competent state agencies signed the project contract in accordance with provisions.

3. The targets of capital mobilized by the investor:

a) The mobilized capital (ordinary credit, preferential credit, foreign loans, and other mobilization capital sources).

b) The total mobilization rate, the mobilization level of each capital source.

c) Time of borrowing, making payment, of which the grace period.

d) Interest rates, average interest rate in case of borrowing many capital sources.

đ) The loan currency and payment rate.

e) The conditions to ensure the mobilization capital source.

f) Other necessary expenses related to the mobilization capital source: guarantee expenses, commitment fees, credit insurance fee, and brokerage (if any).

Article 12. Interest of mobilizing investment capital of the investors

1. Interest of mobilizing investment capital of the investors in the project construction period is included in the total project investment. The time to calculate interest does maximum not exceed the project construction period under the contract, calculated at the rate of commitment and progress of the loans mobilization under the contract, but the maximum loan rate of investors is determined by the ratio of capital required to raise a part from the equity as stipulated in Article 5 of Decree No.108/2009/ND-CP of the Government.

2. Interest of mobilizing investment capital of the investors may only apply to the capital that investors must borrow for investment in projects of BOT, BTO and BT; not to calculate loan interest for the equity that investors must take as prescribed.

3. Interest rates raising investment capital identified in the following cases:

a) In case of bidding for selection of investors: interest rates for capital mobilized by the investor are determined on the basis of the results of the bid winning of the tendering dossiers for the investor won the bid.

b) In case of appointing investors to negotiate contract: reasonable interest rate is determined by unified negotiation between the competent State agencies and investors. The competent State agencies take responsibility for this interest rate.

c) To determine the reasonable interest rate applicable to the project, the competent State agencies shall be responsible for the reference of the following grounds:

- The interest rate for medium term loan with the same medium term of at least three independent credit institutions not related to investors in the area.

- The reasonable interest rate is determined maximumly not exceeding 1.3 times the interest rate of government bonds with the longest term at the time closest to the time of contract negotiations.

Article 13. The investor s profit

1. In case of bidding for selection of investors, the investor s profit is determined by the results of selection of contractors for winning investors.

2. In case of contractor appointment: The investor s profit calculated on the basis of the feasibility study report of the project is determined by the principle of ensuring the effectiveness targets of the project and the results of negotiations between the competent State authorities and investors. The competent State authorities shall be responsible for consulting the average profit level of the enterprises operating in the respective fields, the profit of the similar projects compared with the regional market of project, and profit of other branches, sectors to consider calculating a reasonable profit level proposed in the feasibility study report.

3. Particularly for the project bidding appointment made in the form of BT contract and created conditions by the State for investor to implement other projects to recover capital and profit, the investor s profit is determined in the implementation result of other projects. The formulation and implementation of other projects shall comply with the current provisions on project management of investment and construction.

Article 14. Other financial targets

In addition to financial targets mentioned above, the competent State management agencies may define additionally other necessary financial targets but must ensure that investment activities have been most effective. The other financial targets such as coefficient of liabilities on charter capital, receivable debts, payable debts, capital preservation measures are implemented in accordance with provisions of current legislation.

Chapter 4.

CONDITIONS AND PAYMENT METHOD TO INVESTOR TO IMPLEMENT PROJECTS

Article 15. Conditions for payment of projects implemented under the form of BT contract

1. The projects made in the form of BT contract must be invested in construction, completion, and handover in accordance with commitments stated in the project contract.

2. Payment condition is stipulated in the project contract. The competent State agency may pay to investor a lump sum or many times of value of the project contract, but the time of the first payment is made after the BT project is completed, accepted and handed over; value of the final payment is at least equal to 15% of the project contract value.

3. Where the BT contract stating the payment of several times, settlement report of the project contract must be approved before the final payment.

4. Plans of investment capital source to pay for the project made in the form of BT contract decided by the competent state agency is allocated in the annual investment capital plan of the competent state agency for payment in case of paying in cash.

Article 16. Payment for BT contract

1. Payment dossier

Project enterprise must send to the agency of controlling payment the basic documents of the project (as the originals or copies certified true copy and send only 01 time until the end unless there is a supplement, adjustment) including:

a) The decision of the competent authority on the implementation of project under contract of BT; on the selection of investor in the form of bidding, bidding appointment and decision on payment form in cash or in other projects.

b) The decision of the competent authorities for the assignment of other projects, the decision to approve another project value in case of payment by other projects.

c) Project contract between the competent State agency and investor.

d) Minutes of acceptance of BT project completed and handed over.

2. Payment for project contract in cash

a) Dossiers of requesting for lump sum payment in cash after the BT project is completed and handed over:

- A Minute of BT project acceptance completed and handed over according to schedule of commitment in the project contract.

- A Minute of determining the mass value arising out of the contract approved by the competent state agency (if any).

- A written request for payment of the competent state agency: Contract value proposed payment; the value of the works generated (if any); value proposed payment.

- A settlement report of completed project contract.

- An audit report on settlement report of completed project contract.

- An approval of the contract settlement for the completed project of the competent authorities.

b) In case of payment more than once:

- A minute of BT project acceptance completed and handed over according to schedule of commitment in the project contract.

- A minute of determining the mass value arising out of the contract approved by the competent state agency (if any).

- A written request for payment of the competent state agency.

- In case of final payments, payment dossiers are added settlement report of completed BT work approved by the competent authorities, the settlement report of completed project contract.

c) Method of payment:

- After completion of the BT project contract, the competent state agency makes payments to the investors, the project enterprise of the total value of the contract signed and amounts arising out of contract (if any). In case of payment in many times, the payment schedule is conducted according to commitments under the project contract. The final payment at least equal to 15% of the contract value shall be paid after the contract settlement is approved.

- Within 07 days after receiving complete dossiers as prescribed by the competent State agency, the State Treasury based on the payment terms in contract, to inspect and make lump sum payment or pay several times under the conditions of payment, payment value recommended. The competent State agency takes responsibility for the accuracy and legality of the payment value of the project contract, the quality of project handed over. The State Treasury is not responsible for this content.

3. The payment for BT contract by assigning other projects:

a) The principle of payment:

- In principle: As defined in clause 3, Article 2 of Decree No.108/2009/ND-CP dated 27/11/2009 of the Government, after the construction of BT project, investors transfer the project to the State, the competent state agency makes payment to investors by other projects. Payment shall be made according to the following provisions:

+ Payment is made through the principle of offsetting the value of BT project and other project value assigned to the investor by the competent state agency.

+ Other project value is determined by the competent authority and approved under the provisions of relevant laws.

+ Time for making payment is the time after the BT project contract is finished, the competent State agency issues officially decision on the allocation of other project to the investor.

- If the competent State agency decides on temporary assignment of other project to the investor before the BT project is completed and it shall handover to implement the planning and implementation of compensation for ground clearance, valuation of other project must be considered to decide by the Ministers; heads of ministerial-level agencies, Governmental agencies and the presidents of the People s Committees of provinces and cities directly under the Central Government. In this case, the competent state agency and investors must calculate the payment terms to ensure the State s interests and the interests of investors, which ensures the condition not modifying the total BT project investment which have been approved by the competent authority (unless otherwise adjusted in accordance with the law on construction investment).

b) Dossiers of payment:

- Contract between the competent state agency and investor.

- A minute to identify BT project contract completed according to the progress committed in the contract.

- A minute to identify the mass value arising out of the contract approved by the competent state agencies (if any).

- A decision of the competent authority to approve value of other project.

c) Payment for project contract:

- The competent State agency sends payment dossier for BT project to the State Treasury to control expenditure. Within 7 days, the State Treasury Agency based on the dossier sent by the competent state agency to control and make the certification of value of construction volume completed requesting for payment completely dossiers and procedures as prescribed. The competent State agency based on certified value of the volume of sufficient conditions to be paid by the State Treasury, to make payments by other projects to the investors.

- Competent State agency monitors the capital paid to the investors, quarterly, annually notify the local finance agency for monitoring and cross-check and accounting the payment by the value of other project.

4. Accounting and management of payment for BT project contracts

a) After having decision to approve other project’s value, the decision to assign the investor to implement other project, the local finance agency based on the property of other project, shall account the revenue recording of local budget on collection from other project and expenditure recording for payment of investment capital. In case of not clearly defined value of BT project or other project value, it can be recorded temporarily for revenue and expenditures. After determining exactly value of the project, it will be calculated for official revenue and expenditure.

b) End of the annual state budget year (on 31/01 every year), based on the notice of the the competent State agency on cumulation of capital paid for the project contract in year identified by the state treasury agency; local finance agency makes procedures to tranfer the remaining fund (if any) to the following year to continue to make payment for BT project contract.

c) After settling the contract, if value of other project paid to the investor more than the BT project contract value and the value arising out of contract approved by the competent State agency, the Investor must pay the difference in cash into the state budget. Particularly the contract value increased by other causes, not covered in the BT contract, should be self-ensured funds for payment by the investor. If value of other project paid to the investor less than BT project contract value and the value arising out of contract approved by the competent State agency, state budget shall make payment for the difference in cash or supplement by other project.

Chapter 5.

SETTLEMENT FOR INVESTMENT PROJECTS IN THE FORM OF CONTRACTS OF BOT, BTO AND BT

Article 17. Settlement for investment projects in the form of contracts of BOT, BTO, BT includes:

1. The costs implemented by the state agencies: the State agencies are assigned to make settlement report for expenses from formulation, evaluation of feasibility study report of the project or project proposal ( if any), costs related to preparation of other project together with other costs related to management of project implementation to submit to competent authorities for verification and approval.

2. Settlement for value of the completed BOT, BTO and BT contracts: Investors shall compile dossiers of settlement for all items of costs as agreed in the project contracts and in accordance with the provisions of law on investment and construction submitting to the competent State agencies for consideration, approval for contracts of BTO, BT and consideration, agreement for the BOT contract.

3. The value of the project contract settlement is the entire the value to implement the project contract signed by the competent state authority and investor in accordance with the provisions of the law on investment and construction.

Article 18. Settlement for the value of BOT, BTO and BT contracts.

1. For BOT contract:

- The competent State agency deals with investor on the selection of independent auditing institution having the capacity and experience to conduct audits of expenditures for construction investment, other costs of project contract to be signed.

- Based on the value of the audit, the competent State agency considers and approves reports on the settlement of the project contract value.

2. For the contracts of BT, BTO:

- The competent State agency deals with investor on the selection of independent auditing institution having the capacity and experience to conduct audits of expenditures for construction investment, other costs of project contract to be signed.

- The competent State agency verifies and approves the same as for the projects using State budget capital.

Article 19. Dossier for settlement

1. Dossier for cost settlement shall be made by the State agency:

- A summarized table of value proposed for settlement, in which record completely the expense items made.

- A set of legal documents involved (originals or copies).

- A consultancy contract (if any) together with records of acceptance test, the finished product, and the settlement of contract (the original).

- All related documents and vouchers of payment (originals or copies).

2. Dossier for settlement of BOT, BTO, BT contracts:

- A written submission requesting for consent or approval of the settlement of the investor;

- A project contract;

- The Appendices and papers, documents attached to the project contract;

- All other relevant documents and receipts.

Chapter 6.

IMPLEMENTATION PROVISIONS

Article 20. Effect

This Circular takes effect from 15/01/2012 and replaces Circular No.149/2007/TT-BTC dated 14/12/2007 of the Ministry of Finance guiding the management and use of state budget funds for the activities of the competent State agencies in the management of investment projects in the form of BOT, BTO and BT contracts.

Article 21. Transitional provisions

1. For project contracts which are being negotiated, not yet been signed, the competent state agencies based on the provisions of this Circular to review and adjust and update the relevant provisions in the project contracts.

2. For project contracts which were signed before the effective date of this Circular, it shall continue to comply with project contract signed.

3. For other cases, the ministries, branches, and provincial-level People s Committees send notice in writing to the Ministry of Finance for study and guidance./.