Decree No. 131/2015/ND-CP dated December 25, 2016 of the Government guiding the projects on national significance

THE GOVERNMENT

Decree No. 131/2015/ND-CP datedDecember 25, 2016 of the Government guiding the projects on national significance

Pursuant to the Law on Government Organization dated December 25, 2001;

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

Pursuant to the Law on Public Investment dated November 26, 2014;

Pursuant to the Law on Procurement dated November 26, 2013;

Pursuant to the Law on Construction dated June 18, 2014;

Upon the request of the Minister of Planning and Investment;

The Government hereby introduces the Decree specifying guidance on projects of national significance.

Chapter I

GENERAL PROVISIONS

Article 1. Scope ofadjustment

This Decree shall specify guidance on projects of national significance, including: Organization and operational modality of the State Assessment Council; documentation and procedure for application for assessment and contents of assessment of projects of national significance; hiring of inspection consultants, and costs of assessment and inspection of projects of national significance.  

Article 2.Subject of application

This Decree shall apply to agencies, organizations or individuals involved in projects of national significance.

Article 3. Definition

For the purposes of this Decree, terms used hereunder shall be construed as follows:

1. Projects of national significance defined in the 2014 Law on Public Investment, the 2014 Law on Construction and those in which policies for making investments are decided by the National Assembly under the provisions of the 2014 Law on Investment are hereinafter referred to as projects of national significance.

2. Investment certificate issued under the provisions of the 2005 Law on Investment or an investment registration certificate, or a written consent to an investment policy issued by a competent authority under the provisions of the 2014 Law on Investment, is hereinafter referred to as investment registration certificate).  

3. Project owner defined in the 2014 Law on Construction or investors defined in the 2014 Law on Investment is hereinafter referred to as stakeholder.

4. Credit-based loans secured by the Government, loans secured by state-owned assets, state enterprises’ investment and development funds, value of land use rights, and capital derived from the administrative development fund, are hereinafter referred to as other state capital which does not belong to the public investment capital.  

Chapter II

ORGANIZATION AND MODALITY OF OPERATION OF STATE ASSESSMENT

Article 4. Organization, responsibility and authority of the State Assessment Council

1. The State Assessment Council established under the Prime Minister s decision for specific projects shall be tasked with conducting assessment of projects of national significance (pre-feasibility study report or feasibility study report) for submission to the National Assembly with a view to seeking its decision on investment policy or for reporting to the Prime Minister to apply for the investment decision (hereinafter referred to as Council).  

2. The State Assessment Council is composed of the Chairperson, the Vice Chairperson and other members of the Council. The Chairperson of the State Assessment Council is the Minister of Planning and Investment; the Vice Chairperson and other members of the Council are representatives of Ministries, industrial authorities and other relevant agencies decided by the Prime Minister upon the request of the Ministry of Planning and Investment.

3. The Chairperson, Vice Chairperson and members of the State Assessment Council shall be held accountable to the Prime Minister for organizing assessment and assessment activities according to their assigned duties; giving the Council’s assessment opinions on assessment results, conclusions and recommendations regarding elements of projects of national significance. 

4. The State Assessment Council shall be vested with the following powers:

a) Consider, decide issues relating to work contents, programs and plans of the Council and other related matters during the process of assessment of projects of national significance;

b) Request the project owner to provide important documents during the process of assessing projects of national significance, pay costs of inspection and assessment according to the approved budget estimate and progress of assessment contents;

c) Request the consultancy contractor to provide relevant documents during the process of inspecting projects of national significance.

5. The State Assessment Council shall work on a collective basis and shall be subject to the direction of the Chairperson of the Council. The meeting of the State Assessment Council shall be considered valid if it is attended by at least 50% of members (including authorized persons). Conclusive opinions must be unanimously approved according to the majority rule. In the event that the voting ratio is 50/50 per the Council’s membership (including those making their presence at the meeting and those casting their votes by sending their documents to the Council), the issue shall be passed by the Chairperson s casting his deciding vote.

The final resolution in which assessment elements of projects of national significance are passed for submission to the Government and the Prime Minister must be voted for by at least 2/3 of the State Assessment Council’s membership.  Opinions obtained from members of the State Assessment Council shall be delivered by voting at the meeting or in writing to the State Assessment Council.

6. The State Assessment Council shall be automatically dissolved after all stipulated assessment duties have been completed.

Article 5. Responsibility and authority of the Council’s Chairperson

1. Consider approving the assessment plan after receiving opinions from the Council, decide to convene the Council’s meetings, preside over such meetings; assign responsibilities to the Vice Chairperson and members of the Council.

2. Decide to establish the interdisciplinary Assessment Expert Group or the Assistance Group for the Council, depending on work duties in specific projects of national significance.

3. Whenever necessary, the Council’s Chairperson can authorize one Vice Chairperson to convene and preside over the Council’s meetings or report to the Government on certain contents or work duties directly undertaken by the Vice Chairperson.

4. Decide to hire and select a consultant in inspection of projects of national significance in accordance with regulations laid down in Article 10 and 11 hereof.

Article 6. Responsibility and authority of the Council’s Vice Chairperson

1. Assist the Council’s Chairperson in directing operations of the Council; monitor and perform duties of the Council assigned by the Council s Chairperson; regularly make a review report on the Council s performance.

2. Assist the Council’s Chairperson in reviewing and assessing reports on specialized matters and the Council s other activities for submission to the Prime Minister.

Article 7. Responsibility and authority of the Council’s members

1. Consider opinions as to contents of assessment of projects of national significance within their functions and duties of Ministries, agencies and localities under their management and as to general matters of projects of national significance.

2. Mobilize workforce, working equipment and research facilities under their management to fulfill their assigned duties.

3. Fully participate in the Council’s meetings, exchange contributed opinions as to contents of review and assessment as well as cast their votes for the Council’s conclusions.In some special cases, where it is impossible to participate in a meeting, a Council member must send a written explanation and authorize a competent representative to participate in the Council’s meeting.

Article 8. Duties of the standing body of the Council

The standing body of the Council is the Ministry of Planning and Investment assigned the following duties:

1. Rally the Ministry’s machinery to assist the Council’s Chairperson in conducting assessment of projects of national significance and general operations of the Council; cooperate with relevant agencies, interdisciplinary Assessment Expert Group, Inspection Consultancy Group to perform assessment tasks.

2. Receive and examine project documents, and deliver them to the Council’s members, agencies and affiliations involved.

3. Draw up the plan for assessment of projects of national significance by adopting the form stipulated in Appendix issued together with this Decree for submission to the Council.

4. Perform other duties assigned by the Council s Chairperson.

Article 9. Duties of the interdisciplinary Assessment Expert Group

1. The interdisciplinary Assessment Expert Group is an organ established to give assistance to the Council which is composed of experts of Ministries, industrial authorities and localities and other relevant agencies.

2. The interdisciplinary Assessment Expert Group shall assume the following duties:

a) Prepare elements of an assessment which are delivered to the Council s members;

b) Prepare modifications or amendments to documentation upon the request of the Council’s members, other Assistance Groups during the process of assessment for submission to the Council;

c) Carry out necessary work contents to assist the Council in choosing an inspection consultant in accordance with Article 11 hereof whenever it is necessary to employ such inspection consultant;

d) Prepare contracts for inspection consultancy, contract settlement records and other relevant documents used for the purpose of payment or settlement of costs of assessment and inspection of projects of national significance;

dd) Synthesize opinions obtained from the Council’s members, and suggest and request the Council’s Chairperson to review and decide any issue that may arise during the assessment process;

e) Draft an assessment report of the Council for submission to the Council’s Chairperson for review and filing of such report to the Government;

g) Implement other work duties assigned by the Council.

Chapter III

HIRE OF INSPECTION CONSULTANT AND COST OF ASSESSMENT, INSPECTION OF PROJECTS OF NATIONAL SIGNIFICANCE

Article 10. Authority to decide hire of a consultant in inspection of projects of national significance

1. Inspection consultant refers to a domestic or foreign organization or individual, or a joint venture which is formed by domestic and foreign partners (hereinafter referred to as consultancy) hired by the Council to perform one or several part(s) of elements of assessment of projects of national significance. 

2. The Council’s Chairperson shall decide hire of domestic consultant in inspection of projects of national significance in the form of selection as referred to in Article 11 hereof; approve the plan for selection of inspection consultant.

3. The Prime Minister shall consider approving the policy on permission for hire of foreign consultant or domestic-foreign joint venture to carry out inspection upon the request of the Council s Chairperson.

Hire and selection of foreign consultant or domestic-foreign consultancy joint venture for the purpose of inspection of projects of national significance shall be consistent with regulations laid down in Article 11 hereof.

Article 11. Process, procedure for selection of consultant in inspection of projects of national significance

1. The interdisciplinary Assessment Expert Group shall determine the consultancy contractor that has sufficient competence and experience to immediately render consultancy services and recommend such contractor to the Council s Chairperson to obtain his/her approval.

2. Within 15 days from the contract-awarding date, the interdisciplinary Assessment Expert Group must complete the direct appointment procedure, including:

a) Prepare and send a draft agreement to the consultancy contractor under which requirements regarding extent and scope of work to be carried out, work schedule and work quality that must be met and equivalent value based on which the agreement is negotiated and finalized should be included;

b) Proceed to negotiate and complete that agreement;

c) Submit the result of direct appointment of the consultancy contractor for specific projects to the Council s Chairperson for his/her ratification.

d) Prepare conclusion of the agreement with the appointed contractor. The agreement is signed by three parties, including the representative of the Council, the project owner (or the agency assigned the task of making preparations for investment in projects) and the selected contractor;

dd) Make the result of direct appointment of the contractor known to the public in accordance with the law on procurement.

Article 12. Cost of assessment and hire of inspection consultant for projects of national significance conducted by the Council

1. Cost of inspection refers to cost of hire of inspection consultant for projects of national significance conducted by the Council.

2. Cost of assessment refers to costs used for assisting in assessment of projects of national significance conducted by the Council (exclusive of cost of inspection referred to in paragraph 1 of this Article). Cost of assessment shall include remuneration paid to the Council’s members, the interdisciplinary Assessment Expert Group and other Assistance Group (if any); cost of meeting, stationery supplies and site survey (if any), other relevant and provisional costs. 

3. Cost of inspection and assessment of projects of national significance shall be determined as follows:

a) Limit on cost of inspection of pre-feasibility study report is calculated to be equal to the limit on cost of inspection of feasibility study report;

b) Cost of assessment equals 20% of the limit on cost of inspection;

c) The limit on cost of inspection is applied in accordance with the law on construction.

4. Cost of assessment and hire of consultant in inspection of projects of national significance shall be included in the investment outlay and paid by project owners or agencies assigned the task of making preparations for investment in such projects upon the request of the Council, which ensures that any requirement regarding assessment and inspection progress is met according to the stipulated plan. 

Project owners or agencies assigned the task of making preparations for investment shall be liable for paying cost of inspection to inspection consultants as agreed upon in the signed agreement after receiving opinions from the Council.

5. The Council shall allow the Council members, the interdisciplinary Assessment Expert Group and other Assistance Group (if any) to autonomously take control of their spending and other relevant expenses with a view to assuring the Council s assessment activities. 

Chapter IV

PROCESS, PROCEDURE FOR AND ELEMENTS OF ASSESSMENT OF THE INVESTMENT POLICIES FOR PROJECTS OF NATIONAL SIGNIFICANCE

Section 1: PROCESS, PROCEDURE FOR AND ELEMENTS OF ASSESSMENT OF THE INVESTMENT POLICIES FOR PROJECTS OF NATIONAL SIGNIFICANCE FINANCED BY PUBLIC INVESTMENT FUNDS

Article 13. Process and procedure for filing of application for assessment by project owners or agencies directly affiliated to agencies assigned the task of making preparations for investment

1. Documentation submitted to apply for assessment shall be composed of the followings:

a) Application form for assessment;

b) Pre-feasibility study report;

c) Other relevant documents.

2. Project owners or agencies directly affiliated to agencies assigned the task of making preparations for investment (hereinafter referred to as project owner) shall be required to send 15 sets of project documents under the provisions of paragraph 1 of this Article to their governing body or agencies assigned to make preparations for investment to carry out the internal assessment as stipulated in subparagraph b paragraph 1 Article 19 of the 2014 Law on Public Investment. The duration of internal assessment shall last less than 30 days of receipt of all required documents.

3. Projects owners or agencies directly affiliated to agencies assigned the task of making preparations for investment must complete project dossiers based on predetermined assessment elements and prepare complete application for submission to the Prime Minister.

Article 14. Process and procedure for filing of application for assessment by governing bodies or agencies assigned the task of making preparations for investment

1. Documentation filed to apply for assessment by governing bodies or agencies assigned the task of making preparations for investment (hereinafter referred to as governing body) shall be composed of the followings:

a) Application form filed to the Prime Minister by the governing body;

b) Pre-feasibility study report;

c) Internal assessment report stipulated in subparagraph b paragraph 1 Article 19 of the 2014 Law on Public Investment;

d) Other relevant documents.

2. The governing body shall send 01 set of documents as provided for in paragraph 1 of this Article as a report to the Prime Minister, and concurrently send 20 sets of documents to the Ministry of Planning and Investment.

3. No later than 05 working days of receipt of project dossiers, the Ministry of Planning and Investment shall report to the Prime Minister on establishment of the Council in accordance with regulations laid down in Article 4 hereof.

4. The Council shall assess the investment policy for projects of national significance within a period of 90 days of receipt of all valid project dossiers.

Article 15. Documentation submitted to apply for assessment by the Council and Government

1. Documentation submitted to apply for assessment by the Council shall be composed of the followings:

a) Application form sent to the Government by the governing body (prepared by the governing body after taking into consideration and completing project dossiers based on assessment opinions obtained from the Council);

b) Pre-feasibility study report that is completed on the basis of assessment opinions obtained from the Council;

c) Assessment report prepared by the Council;

d) Other relevant documents.

2. The Government shall consider and give its opinions on investment policies for projects of national significance in accordance with the Government’s working regulations. 

3. Dossiers submitted by the Government to the National Assembly as stated in Article 20 of the 2014 Law on Public Investment shall include specific documents:

a) Statement prepared by the Government;

b) Pre-feasibility study report that is completed on the basis of assessment opinions obtained from the Government;

c) Assessment report prepared by the Council;

d) Other relevant documents.

Article 16: Elements of assessment of the investment policies for projects of national significance financed by public investment funds

1. Assessment elements shall be composed of the followings:

a) Evaluation of project dossiers: Legal bases, components and contents of dossiers in accordance with applied regulations;

b) Satisfaction of criteria for determination of projects of national significance;

c) Necessity of investment, conditions for investment, evaluation concerning compatibility with the plan, strategy, scheme and proposal for socio-economic development, industrial and sectorial development planning; compliance with laws and regulations; 

d) Evaluation concerning demand forecast, influence coverage and proposed objectives of investment, scale and form of investment;

dd) Evaluation concerning location and site of investment, proposed demand for land areas used for projects and demand for utilization of other resources (if any);

e) Evaluation concerning analysis, preliminary choice in terms of key technology and techniques, and conditions for supply of raw materials, equipment, energy, service and infrastructural facilities;

g) Evaluation concerning analysis, preliminary selection of investment plans and scale of investment constituents;

h) Evaluation concerning plans for compensation, support, site clearance, relocation and environmental protection approaches;

i) Preliminary evaluation concerning environmental and social impacts of projects;

k) Evaluation concerning preliminary determination of the investment outlay and capital mobilization plan: Bases for determination of investment capital demands, structure of the investment outlay, level of accuracy in terms of investment capital demand; capital source structure; analysis of feasibility of capital mobilization plans and capability of balancing public investment capital;

l) Evaluation concerning preliminary determination of cost of operation, maintenance, overhaul and major repair during the period of use and operation of projects;

m) Evaluation concerning the proposed progress of execution of projects, division of investment phases or component or subordinate projects (if any);

n) Evaluation concerning investment efficiency in terms of finance, society, economy, national defense and security and sustainable development;

o) Evaluation concerning solutions to conducting implementation of projects: Definition of the project owner (if any); form of project management;

p) Evaluation concerning particular mechanism and policy and applicable conditions (if any).

2. As for any project with a construction constituent, in addition to evaluation of contents stipulated in paragraph 1 of this Article, evaluation concerning the plan for fundamental design in accordance with laws on construction must be carried out.

Section 2: PROCESS, PROCEDURE FOR AND ELEMENTS OF ASSESSMENT OF INVESTMENT POLICIES FOR PROJECTS OF NATIONAL SIGNIFICANCE FINANCED BY STATE FUNDS OTHER THAN PUBLIC INVESTMENT CAPITAL

Article 17. Process and procedure for filing of application for assessment by project owners

1. Documentation submitted to apply for assessment shall be composed of the followings:

a) Written request for execution of investment projects;

b) Pre-feasibility study report;

c) Copy of document indicating the legal status of the project owner (Establishment certificate or business registration certificate or other legal documents);

d) Copy of one of the following documents: Financial statement prepared in the latest 02 years by the project owner; commitment on financial support from parent companies or financial institutions; guarantee of financial capability of the project owner; note on financial capability of the project owner;

dd) BCC contract for BCC investment projects;

e) Recommendations in terms of particular policies and mechanisms (if any);

g) Documented opinions of state ownership representatives as to investment in projects under the provisions of the Law on management and utilization of state capital invested in enterprises’ production and business activities (if the project owner is an enterprise whose charter capital includes state capital);

h) Resolution of the Board of Members or Managing Board or Shareholders’ General Meeting in terms of investment in projects as stipulated by the Law on Enterprise;

d) Other relevant documents.

2. The project owner shall submit 21 sets of documents as referred to in paragraph 1 of this Article to the investment registry located at the area where investment projects are executed.

3. Within a permitted duration of 03 working days of receipt of all required documents, the investment registry shall send 20 sets of project dossiers to the Ministry of Planning and Investment.

4. No later than 05 working days of receipt of project dossiers, the Ministry of Planning and Investment shall report to the Prime Minister on establishment of the Council in accordance with regulations laid down in Article 4 hereof.

5. The Council shall assess the investment policy for projects of national significance within a period of 90 days from its establishment date.

Article 18. Documentation submitted to apply for assessment by the Council and Government

1. Documentation submitted to apply for assessment by the Council shall be composed of the followings:

a) Assessment report prepared by the Council;

b) Pre-feasibility study report that is completed on the basis of assessment opinions obtained from the Council;

c) Documents stipulated in subparagraph c through subparagraph i paragraph 1 Article 17 hereof (prepared by the project owner);

2. The Government shall consider and give its opinions on investment policies for projects of national significance in accordance with the Government’s working regulations.

3. Documentation submitted by the Government to the National Assembly shall be composed of the followings:

a) Statement prepared by the Government;

b) Investment project dossiers as defined in paragraph 1 of this Article.

Article 19: Elements of assessment of the investment policies for projects of national significance financed by state capital other than public investment capital

1. Assessment elements shall be composed of the followings:

a) Evaluation of project dossiers: Legal bases, components and contents of dossiers in accordance with applied regulations;

b) Satisfaction of criteria for determination of projects of national significance;

c) Necessity of the project;

d) Evaluation concerning compatibility with the plan, strategy, scheme and proposal for socio-economic development, industrial and sectorial development planning; planning for utilization of land and other resources;

dd) Evaluation concerning objectives, scale, investment location, proposed demands for land area and demands for utilization of other resources (if any); plan for selection of main technology to be applied;

e) Evaluation concerning plans for compensation, support, site clearance, relocation and environmental protection approaches;

g) Preliminary evaluation concerning environmental and social impacts of projects;

h) Evaluation concerning preliminary determination of the investment outlay and capital mobilization plan: Bases for determination of investment capital demands, structure of the investment outlay, level of accuracy in terms of investment capital demand; capital source structure; analysis of feasibility of capital mobilization plans;

i) Evaluation concerning preliminary determination of cost of operation, maintenance, overhaul and major repair during the period of use and operation of projects;

k) Evaluation concerning the proposed progress of execution of projects, division of investment phases or component or subordinate projects (if any);

l) Evaluation concerning investment efficiency in terms of finance, society, economy, national defense and security and sustainable development;

m) Evaluation concerning particular mechanism and policy; preferential treatments, advantages and applicable conditions (if any).

2. As for any project with a construction constituent, in addition to evaluation of contents stipulated in paragraph 1 of this Article, evaluation concerning the plan for fundamental design in accordance with laws on construction must be carried out.

Section 3: PROCESS, PROCEDURE FOR AND ELEMENTS OF ASSESSMENT OF THE INVESTMENT POLICIES FOR PROJECTS OF NATIONAL SIGNIFICANCE THAT ARE NOT FINANCED BY STATE CAPITAL

Article 20. Process, procedure and documentation submitted to apply for assessment

1. The project owner shall prepare documentation submitted to apply for assessment in accordance with the 2014 Law on Public Investment, including the followings:

a) Written request for execution of investment projects;

b) Copy of ID card, citizenship ID card or passport, applicable to the project owner who is an individual entity; copy of Establishment Certificate or other equivalent documents indicating the legal status, applicable to the project owner who is an institutional entity;

c) Recommendation of investment projects including: the project owner executing projects, investment objectives, investment scale, investment capital and capital mobilization plan, location, duration and progress of investment, demands for workforce;

d) Plan for site clearance, relocation and resettlement (if any);

dd) Preliminary evaluation concerning environmental impacts, and environmental protection solutions;

e) Evaluation concerning socio-economic impacts and efficiency of projects;

g) Recommendation of particular policies and mechanisms (if any);

h) Copy of one of the following documents: Financial statement prepared in the latest 02 years by the project owner; commitment on financial support from parent companies or financial institutions; guarantee of financial capability of the project owner; note on financial capability of the project owner;

i) Recommendation of demand for land to be utilized; if the State’s allocation of land, land lease and permission for conversion of purpose of use of land is not required for a project, a copy of an agreement on hiring of a site or other documents stating that the project owner has the right to use such site for execution of projects must be submitted;

k) Demonstration of technology to be used for a project as referred to in subparagraph b paragraph 1 Article 32 of the 2014 Law on Investment, including name, origin and flow chart of such technology; main specifications, working condition of machinery or equipment and main technology line;

l) BCC contract for BCC investment projects;

m) Other relevant documents.

2. The project owner shall submit 21 sets of documents as referred to in paragraph 1 of this Article to the investment registry located at the area where investment projects are executed.

3. Within a permitted duration of 03 working days of receipt of all required documents, the investment registry shall send 20 sets of project dossiers to the Ministry of Planning and Investment.

4. No later than 05 working days of receipt of all required project dossiers, the Ministry of Planning and Investment shall report to the Prime Minister on establishment of the Council in accordance with regulations laid down in Article 4 hereof.

5. The Council shall assess the investment policy for projects of national significance within a period of 90 days from its establishment date.

6. Documentation submitted to apply for assessment by the Council shall be composed of the followings:

a) Assessment report prepared by the Council;

b) Documents referred to in paragraph 1 of this Article, including elements of the project which have been completed with reference to assessment opinions obtained from the Council (prepared by the project owner);

7. The Government shall consider and give its opinions on investment policies for projects of national significance in accordance with the Government’s working regulations.

8. Documentation submitted by the Government to the National Assembly shall be composed of the followings:

a) Statement prepared by the Government;

b) Investment project dossiers as defined in paragraph 6 of this Article.

Article 21. Elements of assessment of the investment policies for projects of national significance that are not financed by state capital

1. Satisfaction of criteria for determination of projects of national significance.

2. Evaluation of necessity of the project.

3. Information about investors; evaluation of satisfaction of investment requirements applied to foreign investors (if any).

4. Evaluation concerning objectives, scale, location, time, progress of execution of projects, demand for lands to be used, plan for site clearance, resettlement, relocation and environmental protection.

5. Evaluation concerning compatibility of the project with the master plan for socio-economic development, industrial development planning; planning for utilization of land and other resources (if any).

6. Evaluation of legal basis for right of use of investment location accorded investors. If there is any recommendation about allocation of land, land lease and permission for conversion of purpose of use of land, assessment of demands for land to be used, conditions for land allocation, lease and permission for conversion of purpose of use of land must be conducted in accordance with laws on land.

7. Evaluation concerning the plan for selection of main technology; in respect of projects defined in subparagraph b paragraph 1 Article 32 of the 2014 Law on Investment, and evaluation of technology to be applied to an investment project.

8. Evaluation concerning investment capital and capital mobilization plan.

9. Evaluation concerning socio-economic impacts and efficiency.

10. Evaluation concerning particular mechanism and policy; preferential treatments, advantages and applicable conditions (if any).

Section 4: PROCESS, PROCEDURE FOR AND ELEMENTS OF ASSESSMENT OF POLICIES FOR OUTWARD INVESTMENT PROJECTS OF NATIONAL SIGNIFICANCE

Article 22. Process, procedure and documentation submitted to apply for assessment

1. The project owner shall prepare documentation submitted to apply for assessment under the provisions of paragraph 1 Article 55 of the 2014 Law on Public Investment, including:

a) Registration form for outward investment;

b) Copy of ID card, citizenship ID card or passport, applicable to the project owner who is an individual entity; copy of Establishment Certificate or other equivalent documents indicating the legal status, applicable to the project owner who is an institutional entity;

c) Recommendation about investment projects, including investment objectives, scale, form, location; preliminary determination of investment capital, capital mobilization plan, capital source structure; progress of execution of a project, investment phases (if any); preliminary analysis of investment efficiency;

d) Copy of one of the following documents indicating the financial competence of the project owner, including financial statement prepared in the latest 02 years by the project owner; commitment on financial support from parent companies or financial institutions; guarantee of financial capability of the project owner; other documents indicating the financial capability of the project owner;

dd) Commitment on autonomous management of foreign currency flows or commitment of authorized credit institutions on assurance that foreign currency amount is adequately provided for the project owner;

e) Decision on outward investment in accordance with regulations laid down in paragraph 1 and 2 Article 57 of the 2014 Law on Investment;

g) With regard to any project of an enterprise whose charter capital is wholly held by the State, Decision on outward investment stipulated in subparagraph e of this paragraph shall be replaced by the following documents: written consent of the ownership representative to investors registration of outward investment for the purpose of project execution, including the main contents such as investors, objectives, scale, form and location of investment; total investment capital, capital mobilization plan, capital source structure, progress of project execution, indicators regarding investment efficiency to be achieved in a project; internal assessment report relating to recommendation about projects for outward investment as the basis for obtaining approval from the ownership representative;

h) With regard to any outward investment project in the banking, securities, insurance, or science and technology sector, investors are required to submit a written approval of competent state agencies in relation to conformity to requirements for outward investment in accordance with regulations enshrined in the Law on Credit Institutions, Law on Securities, Law on Science and Technology and Law on Trade in Insurance;

i) Other relevant documents.

2. The contractor shall submit 20 sets of documents as referred to in paragraph 1 of this Article to the Ministry of Planning and Investment.

3. No later than 05 working days of receipt of all required project dossiers, the Ministry of Planning and Investment shall report to the Prime Minister on establishment of the Council in accordance with regulations laid down in Article 4 hereof.

4. The Council shall assess the investment policy for outward investment projects of national significance within a period of 90 days from its establishment date.

5. Documentation submitted to apply for assessment by the Council shall be composed of the followings:

a) Assessment report prepared by the Council;

b) Documents referred to in paragraph 1 of this Article (prepared by the project owner after consulting and completing project dossiers based on assessment opinions obtained from the Council).

6. The Government shall consider and give its opinions on the investment policy for outward investment projects of national significance according to its working regulations.

7. Documentation submitted by the Government to the National Assembly shall be composed of the followings:

a) Statement prepared by the Government;

b) Investment project dossiers as defined in paragraph 5 of this Article.

Article 23. Elements of assessment of policies for outward investment projects of national significance

1. Eligibility requirements for being issued the Certificate of outward investment as stated in Article 58 of the 2014 Law on Investment.

2. Legal status of investors.

3. Necessity of outward investment.

4. Compatibility of the project with regulations laid down in paragraph 1 Article 51 of the 2014 Law on Investment.

5. Evaluation of fundamental contents of a project: scale, form of investment, location, duration and progress of project execution, investment capital and capital source.

6. Evaluation of levels of risks incurred in the state where an investment project is located.

Section 5. PROCESS, PROCEDURE FOR AND ELEMENTS OF ASSESSMENT OF AMENDMENTS TO INVESTMENT POLICIES FOR INVESTMENT PROJECTS UNDER THE PROVISIONS OF PARAGRAPH 4 ARTICLE 40 OF THE 2014 LAW ON INVESTMENT

Article 24. Process, procedure for filing application for assessment of amendments to investment policies for projects financed by state capital other than public investment capital

1. Documentation submitted to apply for assessment by project owners shall be composed of the followings:

a) Written request for amendments to the investment policy in which any contents required to be amended must be clearly specified;

b) Amended pre-feasibility study report, or amended feasibility study report;

c) Supervisory report, evaluation of amendments to investment projects;

d) Copy of document indicating the legal status of the project owner (Establishment certificate or business registration certificate or other equivalent legal documents), applicable to the case in which there is any change to the project owner;

dd) Copy of one of the following documents: Financial statement prepared in the latest 02 years by the project owner; commitment on financial support from parent companies or financial institutions; guarantee of financial capability of the project owner; note on financial capability of the project owner;

e) BCC contract for BCC investment projects (if any change is made);

g) Recommendation about particular policies and mechanisms (if any).

h) Other relevant documents.

2. The project owner shall submit 21 sets of documents as referred to in paragraph 1 of this Article to the investment registry located at the area where investment projects are executed.

3. Within a permitted duration of 03 working days of receipt of all required project dossiers, the investment registry shall send 20 sets of project dossiers to the Ministry of Planning and Investment.

4. No later than 05 working days of receipt of all required project dossiers, the Ministry of Planning and Investment shall report to the Prime Minister on establishment of the Council in accordance with regulations laid down in Article 4 hereof.

5. The Council shall assess amendments to the investment policy for projects of national significance within a period of 90 days from the date of entry into force of the establishment decision.

6. Documentation submitted to apply for assessment by the Council shall be composed of the followings:

a) Assessment report prepared by the Council;

b) Pre-feasibility study report or feasibility study report to which amendments have been completed with reference to assessment opinions obtained from the Council;

c) Documents stipulated in subparagraph a and subparagraph c through subparagraph h paragraph 1 of this Article (prepared by the project owner).

7. The Government shall consider and give its opinions on amendments to the investment policy for projects of national significance according to its working regulations.

8. Documentation submitted by the Government to the National Assembly shall be composed of the followings:

a) Statement prepared by the Government;

b) Investment project dossiers as defined in paragraph 6 of this Article.

Article 25: Elements of assessment of amendments to the investment policies for projects of national significance financed by state capital other than public investment capital

All amendments must be assessed in the similar manner to those referred to in Article 19 hereof.

Article 26. Procedure for filing application for assessment of amendments to investment policies for projects that are not financed by state capital

1. Documentation submitted to apply for assessment by project owners shall be composed of the followings:

a) Written request for amendments to the investment policy in which any contents required to be amended must be clearly specified;

b) Documents relevant to amendments as defined in subparagraph b through subparagraph m paragraph 1 Article 20 hereof;

c) Supervisory report, evaluation of amendments to investment projects;

d) Other relevant documents.

2. The investor shall submit 21 sets of documents as referred to in paragraph 1 of this Article to the investment registry located at the area where investment projects are executed.

3. Within a permitted duration of 03 working days of receipt of all required documents, the investment registry shall send 20 sets of project dossiers to the Ministry of Planning and Investment.

4. No later than 05 working days of receipt of all required project dossiers, the Ministry of Planning and Investment shall report to the Prime Minister on establishment of the Council in accordance with regulations laid down in Article 4 hereof.

5. The Council shall assess amendments to the investment policy for projects of national significance within a period of 90 days from its establishment date.

6. Documentation submitted to apply for assessment by the Council shall be composed of the followings:

a) Assessment report prepared by the Council;

b) Documents referred to in paragraph 1 of this Article (prepared by the project owner after consulting and completing project dossiers based on assessment opinions obtained from the Council);

7. The Government shall consider and give its opinions on amendments to investment policies for projects of national significance in accordance with the Government’s working regulations.

8. Documentation submitted by the Government to the National Assembly shall be composed of the followings:

a) Statement prepared by the Government;

b) Investment project dossiers as defined in paragraph 6 of this Article.

Article 27. Elements of assessment of amendments to investment policies for projects that are not financed by state capital

All amendments must be assessed in the similar manner to those referred to in Article 21 hereof.

Chapter V

PROCESS, PROCEDURE FOR AND ELEMENTS OF ASSESSMENT OF DECISION ON INVESTMENT IN PROJECTS OF NATIONAL SIGNIFICANCE

Section 1: PROCESS, PROCEDURE FOR AND ELEMENTS OF ASSESSMENT OF PROJECTS

Article 28. Process, procedure for assessment

1. Documentation submitted to apply for assessment by project owners shall be composed of the followings:

a) Assessment statement;

b) Feasibility study report;

c) The National Assembly’s resolution on approval of the investment policy for projects of national significance;

d) Other relevant documents.

2. Project owners shall send project dossiers in accordance with paragraph 1 of this Article to their governing body or their state ownership representative (hereinafter referred to as governing body) to get them reviewed and then submitted to the Prime Minister in accordance with subparagraph a paragraph 1 Article 44 of the 2014 Law on Public Investment.   

3. Documentation submitted to apply for assessment by the governing body shall be composed of the followings:

a) Statement filed to the Prime Minister by the governing body;

b) Feasibility study report;

c) The National Assembly’s resolution on approval of the investment policy for projects of national significance;

d) Other relevant documents.

4. The governing body shall send 01 set of documents as provided for in paragraph 3 of this Article as a report to the Prime Minister, and concurrently send 20 sets of documents to the Ministry of Planning and Investment.

5. No later than 05 working days of receipt of all required project dossiers, the Ministry of Planning and Investment shall report to the Prime Minister on establishment of the Council in accordance with regulations laid down in Article 4 hereof.

6. The Council shall assess dossiers of projects of national significance within a period of 90 days of receipt of all valid project dossiers.

7. With reference to assessment opinions obtained from the Council, the project owner and governing body shall make the project complete; the governing body shall agree to project elements which have been revised and send revised ones to the Council.

8. The Council shall submit such project to the Prime Minister for his consideration and decision to invest in that project. Submitted documentation shall include:

a) Application form sent to the Prime Minister by the governing body (prepared by the governing body after taking into consideration and completing project dossiers based on assessment opinions obtained from the Council);

b) Feasibility study report that has been completed on the basis of assessment opinions obtained from the Council;

c) Assessment report prepared by the Council;

d) The National Assembly’s resolution on approval of the investment policy for projects of national significance;

dd) Other relevant documents.

9. The Prime Minister shall consider and give his opinions on the decision to invest in projects of national significance in accordance with the Government’s working regulations.

Article 29. ELEMENTS OF ASSESSMENT BEFORE GRANT OF DECISION ON INVESTMENT IN PROJECTS OF NATIONAL SIGNIFICANCE

1. Assessment elements shall be composed of the followings:

a) Evaluation of project dossiers: Legal bases, components and contents of dossiers in accordance with applied regulations;

b) Necessity of the project;

c) Compatibility of the project with the strategy, plan and scheme for socio-economic development, industrial development planning; conformance to the investment policy;

d) Evaluation concerning analysis, determination of objectives, duties, outputs of the project; analysis, selection of the project scale; form of investment; analysis of natural conditions, economic and technical conditions, selection of investment project location;

dd) Evaluation concerning demands for land to be used, conditions for land allocation, lease and permission for conversion of purpose of use of land in accordance with laws on land (if any);

e) Evaluation concerning time, progress of project execution, main time periods of project execution; investment phasing;

g) Evaluation concerning source of materials; machinery, equipment; plan for selection of technology, technique and equipment;

h) Evaluation of environmental impacts and environmental protection solutions; fire and explosion prevention; national defence and security assurance and other factors;

i) Evaluation concerning the investment outlay, including determination of cost of operation, maintenance, overhaul and major repair of a project during the process of use and operation of such project; bases for determination of demands for investment capital; level of accuracy pertaining to demands for investment capital; capital source structure, analysis of feasibility of capital mobilization plans; competence in capital mobilization in conformity with the progress of project execution; competence in capital recovery and loan repayment; risk analysis; workforce training (if any);

k) Evaluation concerning investment efficiency, including financial efficiency, and socio-economic efficiency and impacts of the project;

l) Evaluation of the master plan for compensation, site clearance, resettlement, farming and residential relocation (if any);

m) Evaluation concerning conduct of management of projects, including determination of the project owner; form of project management; relationship and responsibility of entities relating to the process of project execution, organization of the mechanism for management and operation of the project.

2. As for any project with a construction constituent, in addition to evaluation of contents stipulated in paragraph 1 of this Article, evaluation of the plan for fundamental design in accordance with laws on construction must be carried out.

Section 2: PROCESS, PROCEDURE FOR AND ELEMENTS OF ASSESSMENT OF AMENDMENTS TO PROJECTS OF NATIONAL SIGNIFICANCE

Article 30. Instances of eligibility for amendments to projects of national significance

Amendments to projects of national significance shall be consistent with regulations laid down in paragraph 2 Article 46 of the 2014 Law on Public Investment and paragraph 1 Article 61 of the 2014 Law on Construction.

Article 31. Process, procedure for assessment

1. Documentation submitted to apply for assessment of amendments to investment projects by project owners shall be composed of the followings:

a) Statement for assessment of amendments to investment projects;

b) Amended feasibility study report;

c) Supervisory report, evaluation of amendments to investment projects;

d) Other relevant documents.

2. Project owners shall send project dossiers in accordance with regulations laid down in paragraph 1 of this Article to the governing body for the purpose of reporting and submitting these dossiers to the Prime Minister.

3. Documentation submitted to apply for assessment of amendments to investment projects by the governing body shall be composed of the followings:

a) Statement filed to the Prime Minister by the governing body to apply for amendments to investment projects;

b) Documents defined in paragraph 1 of this Article.

4. The governing body shall send 01 set of documents as provided for in paragraph 3 of this Article as a report to the Prime Minister, and concurrently send 20 sets of documents to the Ministry of Planning and Investment.

5. No later than 05 working days of receipt of all required project dossiers, the Ministry of Planning and Investment shall report to the Prime Minister on establishment of the Council in accordance with regulations laid down in Article 4 hereof.

6. The Council shall assess amendments to projects of national significance within a period of 90 days of receipt of all valid project dossiers.

7. With reference to assessment opinions obtained from the Council, the project owner and governing body shall make the project completely amended; the governing body shall agree to project elements which have been completely amended and send this amended project to the Council.

8. The Council shall submit such project to the Prime Minister for his consideration and decision to allow such amendments to that project. Submitted documentation shall include:

a) Application form sent to the Prime Minister by the governing body to apply for the Prime Minister’s approval of amendments (prepared by the governing body after taking into consideration and completing project dossiers based on assessment opinions obtained from the Council);

b) Feasibility study report that has been completely amended on the basis of assessment opinions obtained from the Council;

c) Report on assessment of amendments to projects prepared by the Council;

d) Supervisory report, evaluation of amendments to investment projects;

dd) Other relevant documents.

9. The Prime Minister shall consider and grant his decision on amendments to projects of national significance in accordance with the Government’s working regulations.

Article 32. Elements of assessment of amendments

All amendments must be assessed in the similar manner to those referred to in Article 29 hereof.

Chapter VI

IMPLEMENTARY PROVISIONS

Article 33. Transitional provisions in respect of projects which are under execution, or are faced with issues related to criteria of projects of national significance

1. Projects under execution mean projects in which decisions on investment has been granted (in respect of projects financed by state capital) or those in which certificates of registration of investment has been granted.

2. As for projects which are under execution but meet criteria of a project of national significance under the provisions of Article 7 of the 2014 Law on Public Investment and Article 30 of the 2014 Law on Investment, transitional provisions on such projects shall provide for the followings:

a) Execution of these projects shall be continued; project owners shall send review reports to the person making investment decisions or the investment registry; 

b) The person vested with authority to grant an investment decision or the investment registry shall report to the Prime Minister for his review and direction of reporting to the National Assembly at its year-end meeting on the process of execution of such projects;

c) Management of the projects stated in this paragraph shall be consistent with regulations laid down in decisions on investment, certificates of investment registration which has been issued, or decisions on investment, certificates of investment registration which has been previously amended. 

3. As for projects under execution which are subject to any change and of which changes fall under criteria of projects of national significance under the provisions of Article 7 of the 2014 Law on Public Investment and Article 30 of the 2014 Law on Investment, transitional provisions on such projects shall provide for the followings:

a) Execution of these projects shall be continued; project owners shall report to the person making investment decisions or the investment registry on any issues that may arise;

b) The person vested with authority to grant an investment decision or the investment registry shall report to the Prime Minister for his review and opinions on amendments as well as direction of reporting to the National Assembly at its year-end meeting on the process of execution of such projects in which such issues are clearly stated;

c) Process, procedure for considering application for amendments to projects shall be consistent with applicable regulations in the similar manner to those applied to projects or groups of projects existing prior to amendments;

d) Management of projects stipulated in this paragraph shall be consistent with laws and regulations on projects of national significance.

Article 34. Implementation effect

1. This Decree takes effect on February 15, 2016.

2. The Government’s Decree No. 03/2013/ND-CP dated January 4, 2013 on detailed provisions and guidance on implementation of several articles of the National Assembly’s Resolution No. 49/2010/QH12 on projects or construction works of national significance that must be submitted to the National Assembly to apply for its decision on investment policies.

Article 35.Implementation responsibilities

Ministries, Heads of Ministry-level agencies, Heads of Government agencies, the Presidents of People’s Committees of central-affiliated cities and provinces, and related organizations and individuals, shall be responsible for enforcing this Decree./.

For the Government

The Prime Minister

Nguyen Tan Dung

APPENDIX

FORM OF INSPECTION PLAN
(Issued together with the Government’s Decree No. 131/2015/ND-CP dated December 25, 2015)

INSPECTION PLAN

I. TASKS AND ELEMENTS OF ASSESSMENT

1. Inspection tasks:

Conduct assessment of the pre-feasibility study report[Name of project](hereinafter referred to as project) with the aim of reporting to the Prime Minister to apply for his consideration and requesting the National Assembly to grant its decision on investment policies(applicable to projects of national significance submitted to the National Assembly for its grant of decision on investment policies).

Or:Conduct assessment of the feasibility study report[Name of project](hereinafter referred to as project) to report to the Prime Minister for his consideration and decision on investment.

2. Elements of assessment of the project: Depending on type of capital source, form of investment and assessment elements must be consistent with regulations laid down in Article 16, 19, 21, 23, 25, 27, 29 and 32 hereof.

II. CONDUCT OF INSPECTION

1. Suggest establishment of the interdisciplinary Assessment Expert Group or other assistance group (if any).

(Clearly determine elements or contents of work duties assigned to the interdisciplinary Assessment Expert Group and other assistance groups). 

2. Suggest hire of inspection consultants (if any).

(Recommend inspection consultants, and prepare specific duties of these inspection consultants)

III. WORK SCHEDULE AND AGENDA OF THE COUNCIL

1. Work agenda of the Council.

2. Plan for establishment of the interdisciplinary Assessment Expert Group or other assistance group(if any).

3. Plan for selection of inspection consultants (if any).

IV. WORK CONDITIONS

1. Workplace and work equipment.

2. Cost of assessment or inspection of the project(detailed budget estimate attached).

3. Other work conditions.