THE GOVERNMENT | | THE SOCIALIST REPUBLIC OF VIETNAM
Independence - Freedom - Happiness |
No. 56/2020/ND-CP | | Hanoi, May 25, 2020 |
DECREE
On management and use of official development assistance and concessional loans of foreign donors[1]
Pursuant to the June 19, 2015 Law on Organization of the Government;
Pursuant to the June 25, 2015 Law on the State Budget;
Pursuant to the November 26, 2013 Bidding Law;
Pursuant to the June 18, 2014 Construction Law;
Pursuant to the November 26, 2014 Law on Investment;
Pursuant to the June 23, 2014 Law on Environmental Protection;
Pursuant to the April 9, 2016 Law on Treaties;
Pursuant to the November 23, 2017 Law on Public Debt Management;
Pursuant to the June 13, 2019 Law on Public Investment;
At the proposal of the Minister of Planning and Investment,
The Government promulgates the Decree on management and use of official development assistance and concessional loans of foreign donors.
Chapter I
GENERAL PROVISIONS
Article 1. Scope of regulation
This Decree prescribes the management and use of official development assistance (ODA) and concessional loans provided by foreign governments, international organizations, inter-governmental or inter-state organizations, or governmental organizations authorized by foreign governments (below collectively referred to as foreign donors) to the State or the Government of the Socialist Republic of Vietnam.
Article 2. Subjects of application
This Decree applies to agencies, organizations and individuals engaged or involved in the management and use of ODA and concessional loans of foreign donors and counterpart funds of Vietnam.
Article 3. Interpretation of terms
In this Decree, the terms below are construed as follows:
1. Steering committee of an ODA or concessional loan-funded program or project (below referred to as steering committee) means an organization established by the managing agency of an ODA or concessional loan-funded program or project (below referred to as a program or project) and composed of competent representatives of related agencies to direct, coordinate and supervise the program or project implementation. In some cases of necessity, based on agreement with a foreign donor, the steering committee may be composed of a representative of the foreign donor.
2. Management unit of an ODA or concessional loan-funded program or project (below referred to as project management unit) means an organization established to assist the managing agency or project owner in managing the implementation of one or more than one program or project.
3. Program means a combination of ODA or concessional loan-funded activities or projects that are interrelated and may be related to one or more than one sector, field, geographical area and stakeholder, aim to achieve one or several of specified objectives, and are performed through one or more than one stage.
4. Program associated with a policy framework means a program subject to conditions on disbursement of the foreign donor’s ODA or concessional loans associated with the Vietnamese Government’s commitments on formulation and implementation of socio-economic development policies, institutions and solutions on a scale and according to a roadmap agreed upon between the parties.
5. Regional or global program or project (below referred to as regional program or project) means a program or project financed on a global scale or for a group of countries in one or more than one region in order to carry out cooperation activities aiming to achieve specified objectives for benefit of stakeholders and for common benefit of the region or the globe. Vietnam’s participation in such a program or project may be in the following two forms:
a/ Participation in carrying out one or some of activities predesigned by the foreign donor in the program or project;
b/ Carrying out financing activities for Vietnam to formulate and implement programs or projects within the framework of the program or project.
6. Sector-based approach program means an ODA or concessional loan-funded program whereby the foreign donor relies on the development program of a sector or field to provide comprehensive assistance to ensure sustainable and efficient development of such sector or field.
7. Managing agency of an ODA or concessional loan-funded program or project (below referred to as managing agency) means the central body of a political organization; the Supreme People’s Procuracy; the Supreme People’s Court; a National Assembly agency; the State Audit Office of Vietnam; the Office of the President; a ministry, ministerial-level agency, government-attached agency or People’s Committee of a province or centrally run city (below referred to as provincial-level People’s Committee); the central body of the Vietnam Fatherland Front or of a socio-political organization; a socio-politico-professional organization, social organization or socio-professional organization that performs tasks assigned by a competent state agency; or another agency or organization that is assigned a public investment plan involving an ODA or concessional loan-funded program or project.
8. Owner of an ODA or concessional loan-funded program or project means a unit assigned by the managing agency to directly manage or jointly implement such program or project.
9. Domestic financial mechanism applicable to ODA or concessional loan-funded programs and projects (below referred to as domestic financial mechanism) means regulations on use of ODA or concessional loans from the state budget for programs and projects, including:
a/ Whole allocation of funds;
b/ Partial on-lending of loans at specific rates;
c/ Whole on-lending of loans;
d/ On-lending method: non-incurrence of credit risks or incurrence of credit risks.
10. Technical assistance project means a project aiming to support policy, institutional and professional research and capacity building through such activities as supplying domestic and international experts, providing training, materials and documents, organizing field visits, surveys and seminars at home and abroad, providing some equipment, and building demonstration models. Technical assistance projects include independent technical assistance projects and technical assistance projects for preparation of investment projects.
11. Investment program or project proposal means a document describing context, necessity, objectives, scope, main outcomes, expected implementation period, expected total fund and fund structure, preliminary evaluation of economic and social effects and environmental impacts (if any), proposal of domestic financial mechanism, plan on fund balancing for loan repayment, and impacts on the medium-term public investment plan of the managing agency for use as a basis for a competent authority to permit the making of an investment policy proposal report or a prefeasibility study report.
12. Treaty on ODA or concessional loans means a treaty defined in the Law on Treaties and related to receipt, management and use of ODA and concessional loans. These treaties include:
a/ Framework treaty on ODA and concessional loans, which is a treaty related to cooperation strategies, policies and frame and priority fields; binding principles and conditions in the provision and use of ODA and concessional loans; ODA and concessional loan commitments for one year or multiple years, and other contents as agreed upon by the signatories;
b/ Specific treaty on ODA and concessional loans, which is a treaty on specific contents related to objectives, activities, implementation period, and outcomes to be achieved; financing conditions, loans, loan structure, financial conditions of loans, and loan repayment schedule; management mode; obligations, responsibilities and powers of stakeholders in the management and implementation of ODA or concessional loan-funded programs and projects, and other contents as agreed upon by signatories.
13. Agreement on ODA and concessional loans means a written agreement on ODA and concessional loans concluded in the name of the Government of the Socialist Republic of Vietnam, which is not a treaty. These agreements include:
a/ Framework agreement, which is an agreement related to cooperation strategies, policies and frame and priority fields; binding principles and conditions in provision and use of ODA and concessional loans; ODA and concessional loan commitments for one year or multiple years, and other contents as agreed upon by signatories;
b/ Specific agreement, which is an agreement on ODA and concessional loans related to objectives, activities, implementation period, and outcomes to be achieved; financing conditions, loans, loan structure, financial conditions of loans, and loan repayment schedule; management mode; obligations, responsibilities and powers of stakeholders in the management and implementation of ODA or concessional loan-funded programs and projects, and other contents as agreed upon by signatories.
14. Budget support means a method of providing ODA or concessional loans by which the support amount shall be directly remitted into the state budget, and managed and used in accordance with state budget regulations and procedures in order to achieve set objectives based on agreement with foreign donors. Budget supports include general budget support and targeted budget support.
15. Serving bank means a bank selected by a user (project owner) to conduct transactions for ODA or concessional loan-funded projects that is identified by the State Bank of Vietnam to be qualified for acting as the serving bank for a project.
16. Non-project activity means a method of providing non-refundable ODA in the form of separate aid amounts without constituting a specific project; such aid may be provided in cash, in kind, in commodity or in expertise for carrying out one of the following activities: conference, seminar, coaching, research, survey, and training.
17. Decision on policy to implement a technical assistance project or non-project activity funded by non-refundable ODA (below referred to as implementation policy decision) means the Prime Minister’s decision on policy to implement a technical assistance project or non-project activity (excluding technical assistance projects funded by non-refundable ODA for preparation of investment projects), which must have the following principal contents: name of the project or non-project activity and names of foreign donors or co-donors; name of the managing agency; objectives; and funding limit to serve as a basis for the managing agency to coordinate with foreign donors in approving project or non-project activity documents.
18. Document of a technical assistance project or non-project activity funded by non-refundable ODA (below referred to as project document) means a document presenting context, necessity, objectives, contents, main activities, outcomes, implementation period, economic, social and environmental efficiency, funding limit, funding sources and fund structure, other resources, financing mode, conditions (if any) set by a foreign donor, and form of implementation management approved by the managing agency as a basis for implementation of such project or activity.
19. ODA or concessional loan means a loan provided by a foreign donor to the State or the Government of the Socialist Republic of Vietnam to support development activities and ensure social welfare and security, including:
a/ Non-refundable ODA, which is an ODA amount not required to be refunded to the foreign donor;
b/ ODA loan, which is a foreign loan with the grant element of at least 35%, for binding loans related to goods and service procurement under regulations of the foreign donor, or of at least 25%, for non-binding loans. The method of calculating the grant element is provided in Appendix I to this Decree;
c/ Concessional loan, which is a foreign loan with more concessional conditions compared to a commercial loan but with the grant element not yet satisfying the criterion of ODA loans prescribed at Point b of this Clause.
20. Counterpart fund means a fund amount contributed by the Vietnamese partner (in kind or in cash) to an ODA or concessional loan-funded program or project for preparing and implementing the program or project, which is allocated from the central budget or local budget, provided by the project owner, contributed by beneficiaries, or allocated from other lawful funding sources.
21. Fund under blending mechanism means a fund amount allocated from multiple sources of ODA and concessional loans with different levels of grant for increasing concessionality of a loan for a program or project.
Article 4. Methods of providing ODA and concessional loans
Methods of providing ODA and concessional loans include:
1. Providing loans under programs.
2. Providing loans under projects.
3. Providing loans under non-project activities.
4. Providing loans through budget supports.
Article 5. Priority for use of ODA and concessional loans
1. Non-refundable ODA shall be prioritized for implementation of programs and projects on socio-economic infrastructure development; capacity building; support for formulation of policies and institutions and reforms; prevention, control and mitigation of natural disasters and adaptation to climate change; social security; preparation for investment projects, or for concessional loan-funded projects with a view to increasing the grant element of a loan.
2. ODA loans shall be prioritized for programs and projects in the fields of health, education, vocational education, adaptation to climate change, environmental protection, and construction of essential economic infrastructure facilities which are incapable of directly recovering invested funds.
3. Concessional loans shall be prioritized for programs and projects that use loans for on-lending under regulations on on-lending of ODA and foreign concessional loans of the Government; and programs and projects to be covered by state budget expenditures in the field of socio-economic infrastructure development.
4. Other cases of priority must comply with the Prime Minister’s decisions on orientations for attraction, management and use of ODA and concessional loans of foreign donors in each period.
Article 6. Contents and basic principles of state management of ODA and concessional loans
1. Contents of state management of ODA and concessional loans:
a/ Formulating, promulgating, and organizing the implementation of, legal documents on management and use of ODA and concessional loans;
b/ Formulating, and organizing the implementation of, a scheme on attraction, management and use of ODA and concessional loans in each period to support the implementation of 5-year socio-economic development plans; and solutions and policies for management and efficient use of these loans;
c/ Monitoring and providing information about management and use of ODA and concessional loans;
d/ Supervising, evaluating, examining and inspecting the actual management and use of ODA and concessional loans and results thereof in accordance with law.
2. Basic principles of state management of ODA and concessional loans:
a/ ODA and concessional loans shall be used for development investment, but not for payment of regular expenditures. It is not permitted to use foreign loans for payment of taxes, charges or loan interests, or for procurement of cars (except special-use cars as decided by competent authorities), reserve supplies or equipment for the operation process after projects are completed; or for payment of ground clearance expenses and expenses for operation of project management units;
b/ The Government shall perform the unified state management of ODA and concessional loans on the basis of ensuring loan use efficiency and repayment capacity; delegate powers in association with responsibilities, powers and capacity of ministries, central bodies and localities; and ensure coordination among related agencies in management, supervision and evaluation activities under current regulations;
c/ To ensure publicity and transparency and uphold accountability for policies on, order and procedures for mobilization, management and use of ODA and concessional loans among different sectors and among different localities, and regarding progress and results of use of ODA and concessional loans;
d/ To disclose information about cooperation policies and priority fields of foreign donors on the Government Portal system (chinhphu.vn; mpi.gov.vn; mof.gov.vn; and mofa.gov.vn);
dd/ To prevent and combat corruption and waste practices in the management and use of ODA and concessional loans, and prevent and handle these practices in accordance with law;
e/ Method of determining specific state budget expenditures for development investment: Specific expenditures for development investment shall be determined in accordance with the Law on Public Investment, Law on the State Budget, Construction Law, and relevant legal documents.
Article 7. Principles of application of the domestic financial mechanism to ODA or concessional loans
1. For programs and projects to be covered by central budget expenditures: ODA and foreign concessional loans shall be wholly allocated from the central budget.
2. For investment programs and projects to be covered by local budget expenditures: ODA or foreign concessional loans from the central budget shall be partially or wholly on-lent under regulations on on-lending of ODA and foreign concessional loans of the Government.
For programs and projects to be covered by local budget expenditures with the use of ODA or foreign concessional loans as the State’s contributions to public-private partnership (PPP) projects: ODA or foreign concessional loans from the central budget shall be wholly on-lent under regulations on on-lending of ODA and foreign concessional loans.
3. For programs and projects capable of wholly or partly recovering invested funds: ODA or foreign concessional loans from the central budget shall be partially or wholly on-lent under regulations on on-lending of foreign loans of the Government.
Article 8. Order and procedures for management and use of ODA and concessional loans
1. For ODA or concessional loan-funded programs and projects; investment programs and projects funded with non-refundable ODA; and technical assistance projects funded with non-refundable ODA for investment project preparation:
a/ Formulating, selecting and approving program or project proposals;
b/ Officially notifying foreign donors of approved program or project proposals;
c/ Formulating, appraising and deciding on program or project investment policy;
d/ Officially notifying foreign donors of program or project investment policy decisions and requesting donation consideration;
dd/ Formulating, appraising and deciding on investment in programs or projects;
e/ Depending on donors’ regulations, carrying out one of the following procedures: concluding treaties; concluding agreements on ODA and concessional loans; or concluding exchange documents on investment projects funded with non-refundable ODA;
g/ Managing program or project implementation and finance;
h/ Completing programs or projects and handing over their outcomes.
Investment programs and projects funded with non-refundable ODA and technical assistance projects funded with non-refundable ODA for investment project preparation are not required to comply with Points a and b of this Clause.
2. For technical assistance projects and non-project activities funded with non-refundable ODA:
a/ Making project or non-project activity documents;
b/ Deciding on implementation policy, for the projects and non-project activities mentioned in Clause 1, Article 23 of this Decree;
c/ Appraising and approving project or non-project activity documents;
d/ Officially notifying foreign donors of the approval of project or non-project activity documents and requesting donation consideration;
dd/ Depending on foreign donors’ regulations, carrying out one of the following procedures: concluding treaties; concluding agreements on refundable ODA; or concluding exchange documents on technical assistance projects or non-project activities;
e/ Managing implementation and finance of projects or non-project activities;
g/ Completing projects or non-project activities and handing over their outcomes.
3. For budget support amounts:
a/ Formulating and deciding on policy to receive budget support amounts;
b/ Concluding treaties or agreements on ODA and concessional loans for budget support amounts;
c/ Managing implementation and finance of budget support amounts;
d/ Completing budget support amounts and handing over outcomes.
4. For programs and projects using funds under blending mechanism: Managing agencies shall comply with the order and procedures for programs and projects funded with ODA or concessional loans prescribed in Clause 1 of this Article.
Article 9. Policy to receive budget support amounts
1. Order and procedures for deciding on policy to receive general budget support amounts:
a/ For general budget support amounts with ministries, government-attached agencies or provincial-level People’s Committees acting as managing agencies: Managing agencies shall send requests to the Ministry of Planning and Investment and Ministry of Finance, together with documents on budget support amounts that must clearly state the context, necessity, objectives, contents, main activities, outcomes and socio-economic efficiency; funding limit, funding sources and fund structure, and other resources; conditions for receipt of budget support amounts, interests and obligations; mode of financing and management organization; balancing of local budgets, loan use plans, loan repayment capacity of local budgets, and loan repayment commitments (for general budget support amounts to be wholly on-lent to provincial-level People’s Committees);
b/ For general budget support amounts with the Ministry of Finance acting as the managing agency: The Ministry of Finance shall send to the Ministry of Planning and Investment documents on budget support amounts that must clearly state the actual balancing of central budget funds and plans on financing of state budget deficits;
c/ Based on the documents specified at Point a of this Clause, the Ministry of Finance shall evaluate actual state budget balancing; conditions for receipt of state budget support amounts; central budget and local budgets proposing loans, loan use plans, mechanism for borrowing loans for on-lending (for general budget support amounts to be wholly on-lent to provincial-level People’s Committees) and send reports thereon to the Ministry of Planning and Investment;
d/ After summarizing opinions of the Ministry of Finance as prescribed at Points b and c of this Clause and opinions of related agencies, the Ministry of Planning and Investment shall assume the prime responsibility for, and report to the Prime Minister on, the necessity, objectives, contents, main activities, outcomes, socio-economic efficiency, funding limit, funding sources and fund structure, other resources, conditions for receipt of budget support amounts, interests and obligations, mode of financing and management organization;
dd/ The Prime Minister shall consider and decide on policy to receive budget support amounts as a basis for negotiation, signing and receipt of general budget support amounts under regulations.
2. Order and procedures for deciding on policy to receive target budget support amounts:
a/ Managing agencies shall send requests to the Ministry of Planning and Investment and Ministry of Finance, together with documents on budget support amounts as prescribed at Point a, Clause 1 of this Article, which must clearly state actual state of budgets of sectors and plans on use of funds for achievement of set objectives;
b/ The Ministry of Finance shall evaluate actual state of budgets of sectors; capacity to receive budget supports for achievement of set objectives; conditions for receipt of budget support amounts; and fulfillment of commitments, and send reports thereon to the Ministry of Planning and Investment;
c/ After summarizing opinions of the Ministry of Finance as prescribed at Point b of this Clause and opinions of related agencies, the Ministry of Planning and Investment shall assume the prime responsibility for, and report to the Prime Minister for approval, policy to receive target budget support amounts, which must clearly state the list of programs and projects that will use target budget support amounts, and options for assignment of fund plans to ministries and sectors;
dd/ The Prime Minister shall consider and approve policy to receive target budget support amounts together with the list of specific programs and projects. The order and procedures for formulating, appraising and deciding on investment in specific programs and projects that will use target budget support amounts must comply with relevant laws;
dd/ In case it is impossible to identify the list of specific programs and projects that will use target budget support amounts, the Ministry of Planning and Investment shall assume the prime responsibility for, and coordinate with the Ministry of Finance and related agencies in, reporting appropriate plans on support receipt to the Prime Minister.
Article 10. Participation in regional programs or projects
1. In case it is impossible to identify the managing agency of a regional program or project: Based on a foreign donor’s proposal for participation in a regional program or project, the Ministry of Planning and Investment shall assume the prime responsibility for, and coordinate with related agencies in, submitting policy on Vietnam’s participation in a regional program or project and the managing agency of such program or project to the Prime Minister for consideration and decision.
2. In case it is possible to identify the managing agency of a regional program or project: The managing agency shall send a request together with documents of the program or project of a foreign donor to the Ministry of Planning and Investment, which must clearly state interests and obligations of Vietnam when participating in such program or project. The Ministry of Planning and Investment shall assume the prime responsibility for, and coordinate with related agencies in, submitting policy on Vietnam’s participation in a regional program or project to the Prime Minister for consideration and decision.
3. In case a foreign donor provides ODA or concessional loans for formulation and implementation of programs or projects within framework of a regional program or project: Based on the Prime Minister’s decision on policy on Vietnam’s participation in a regional program or project as prescribed in Clauses 1 and 2 of this Article and based on type of program or project, the managing agency shall formulate, appraise, and decide on investment policy and decide on investment, or formulate, appraise and decide on implementation policy and approve project documents in accordance with Chapter II or Chapter III of this Decree.
Article 11. The private sector’s access to ODA and concessional loans
1. The private sector may access ODA and concessional loans in accordance with foreign donors’ policies on provision of ODA and concessional loans.
2. Forms of access to and use of ODA and concessional loans by the private sector:
a/ Access to ODA and concessional loans used by ministries, central bodies or provincial-level People’s Committees as funds for project preparation and support for bidding for investor selection, or as the State’s contributions to PPP projects under current regulations on PPP and specific treaties or specific agreement on ODA and concessional loans;
b/ Access to and use of ODA and concessional loans through managing agencies’ participation in implementing programs or projects on support for the private sector.
Chapter II
FORMULATION AND APPRAISAL OF, AND DECISION ON INVESTMENT POLICY ON OR DECISION ON INVESTMENT IN, ODA
OR CONCESSIONAL LOAN-FUNDED PROGRAMS AND PROJECTS, INVESTMENT PROGRAMS AND PROJECTS FUNDED WITH NON-REFUNDABLE ODA, AND TECHNICAL ASSISTANCE PROJECTS FUNDED WITH NON-REFUNDABLE ODA IN PREPARATION FOR INVESTMENT PROJECTS
Section 1
FORMULATION AND APPRAISAL OF, AND DECISION ON INVESTMENT POLICY ON, PROGRAMS AND PROJECTS
Article 12. Competence to decide on investment policy on ODA or concessional loan-funded programs and projects
1. The competence to decide on investment policy on ODA or concessional loan-funded national target programs, national important projects and public investment programs must comply with Clauses 1 and 2, Article 17 of the Law on Public Investment.
2. The Prime Minister shall decide on investment policy on the following programs and projects:
a/ ODA or concessional loan-funded programs and projects, except those prescribed in Clause 1 of this Article;
b/ Investment programs or projects funded with non-refundable ODA in the following cases: group-A and group-B programs and projects; programs and projects accompanied by policy frameworks; programs and projects in the fields of national defense, security and religious affairs; sector-wide approach programs; procurement of goods subject to the Prime Minister’s permission; and Vietnam’s participation in regional programs and projects;
c/ Technical assistance projects funded with ODA or concessional loans of foreign donors to prepare for investment projects.
3. Heads of managing agencies shall decide on investment policy on group-C investment programs and projects funded with non-refundable ODA.
Article 13. Proposals on ODA or concessional loan-funded programs and projects
1. Order and procedures for approval of program or project proposals:
a/ Ministries, central bodies and localities shall formulate proposals on foreign ODA or concessional loan-funded programs and projects and send such proposals to the Ministry of Planning and Investment, the Ministry of Finance and other related agencies in accordance with law;
b/ The Ministry of Finance shall assume the prime responsibility for identifying grant elements, evaluating the impacts of new loans on public debt safety indicators and determining the domestic financial mechanism for reporting to the Prime Minister in accordance with the Law on Management of Public Debts, and concurrently send reports thereon to the Ministry of Planning and Investment;
c/ The Ministry of Planning and Investment shall consult in writing related agencies about program and project proposals. On the basis of summarizing opinions of the Ministry of Finance as prescribed at Point b of this Clause and opinions of related agencies, the Ministry of Planning and Investment shall evaluate the necessity of programs and projects; preliminarily evaluate feasibility, socio-economic effectiveness; environmental impacts (if any) and impacts of programs and projects on medium-term public investment plans; and select appropriate program and project proposals and submit them to the Prime Minister for consideration and decision;
d/ The Prime Minister shall consider and approve program and project proposals each with the following contents: name of the program or project; name of the foreign donor or co-donors (if any); name of the managing agency; expected objectives and scope; expected implementation duration; expected total funding limit and structure of funding sources; expected domestic financial mechanism, and other related contents.
2. Dossiers of and time limits for considering program or project proposals:
a/ A dossier must comprise: The program or project proposal, made according to the form provided in Appendix II to this Decree; the managing agency’s request for submission of the program or project proposal to competent authorities for approval; and other related documents (if any);
b/ The number of dossier sets to be sent to the Ministry of Planning and Investment is 8;
c/ The number of dossier sets to be sent to the Ministry of Finance is 3.
d/ The time limit for consideration and submission of a program or project proposal to the Prime Minister is 45 days after the Ministry of Planning Investment and the Ministry of Finance receive a complete and valid dossier.
In case the dossier is invalid or the contents of the program or project proposal do not conform to the provisions of Clause 3 of this Article, the Ministry of Planning and Investment and the Ministry of Finance shall issue a document requesting the managing agency to further improve the contents of the program or project proposal.
3. Criteria for selection of program and project proposals:
a/ Conformity with socio-economic development strategies, master plans and plans; public debt safety indicators and debt repayment capacity; orientations on attraction of ODA and concessional loans; policies and orientations on priorities in provision of ODA and concessional loans of foreign donors;
b/ Assurance of socio-economic and environmental effectiveness and sustainability;
c/ Compatibility with the capability to balance ODA and concessional loans and counterpart funds;
d/ No overlap with contents of programs and projects of which proposals, investment policy or investment decisions have/has been approved.
4. In case more than one project is funded with the same ODA or concessional loan of a foreign donor: If managing agencies of these projects reach agreement and make written authorization to one among them, the authorized agency shall proceed with the procedures for formulation, selection and approval of a general program or project proposal for the ODA or concessional loan according to Clauses 1, 2 and 3 of this Article. On the basis of the program or project proposal approved by the Prime Minister, managing agencies of these projects shall proceed with the procedures for making investment policy decision for each project according to Articles 14, 15, 16, 17, 18 and 19 of this Decree.
5. Investment programs and projects funded with non-refundable ODA and technical assistance projects funded with non-refundable ODA in preparation for investment projects are not required to comply with this Article.
Article 14. Order and procedures for making investment policy decision for ODA or concessional loan-funded programs and projects
1. The order and procedures for making investment policy decision for ODA or concessional loan-funded national target programs or national important projects must comply with Articles 19, 20 and 21, and Clause 5, Article 25, of the Law on Public Investment.
2. The order and procedures for making investment policy decision for ODA or concessional loan-funded public investment programs falling under the competence of the Government must comply with Article 22, and Clause 6, Article 25, of the Law on Public Investment.
3. The order and procedures for making investment policy decision for ODA or concessional loan-funded group-A projects must comply with Article 23, and Clause 7, Article 25, of the Law on Public Investment.
4. The order and procedures for making investment policy decision for a program or project funded with ODA or concessional loans which falls under the competence of the Prime Minister, except group-A projects, must comply with Clause 8, Article 25 of the Law on Public Investment, specifically as follows:
a/ The managing agency shall send to the Ministry of Planning and Investment an investment policy proposal report;
b/ The Ministry of Planning and Investment shall assume the prime responsibility for appraising the investment policy proposal report, funding sources and fund-balancing capability for reporting to the Prime Minister;
c/ The Prime Minister shall consider and decide on investment policy.
5. The order and procedures for making investment policy decision for a program or project falling under the competence of the head of the managing agency must comply with Clause 9, Article 25 of the Law on Public Investment, specifically as follows:
a/ The managing agency shall consult the Ministry of Planning and Investment, the Ministry of Finance and related agencies on the investment policy proposal report;
b/ Based on opinions of the consulted agencies, the managing agency shall appraise and decide on investment policy.
6. The Ministry of Planning and Investment shall officially notify foreign donors of decisions approving investment policy on the programs or projects and request donation consideration.
7. In case the contents of the prefeasibility study report or investment policy proposal report change compared to the contents of the approved program or project proposal: The managing agency shall add a detailed report on the changes to the request for appraisal of the prefeasibility study report or investment policy proposal report prescribed at Point b, Clause 1, Article 15 of this Decree.
8. The preliminary assessment of environmental impacts constitutes one of the contents of the prefeasibility study report or investment policy proposal report. Competent authorities shall base on results of preliminary assessment of environmental impacts to decide on investment policy under Article 99 of the Law on Public Investment. Contents of preliminary assessment of environmental impacts must comply with the Government’s regulations detailing the implementation of a number of articles of the Law on Public Investment.
Article 15. Dossiers, contents and time limits for appraisal of prefeasibility study reports or investment policy proposal reports of ODA or concessional loan-funded programs and projects
1. A dossier for appraisal of the prefeasibility study report or investment policy proposal report of a program or project funded with ODA or concessional loans must comprise:
a/ A request made according to the form provided in Appendix IVa to this Decree for competent authorities to make investment policy decision for the program or project;
b/ A request for appraisal of the prefeasibility study report or investment policy proposal report of the program or project, made according to the form provided in Appendix IVb to this Decree;
c/ The competent authority’s document on approval of the program or project proposal;
d/ A report on the result of the managing agency’s self-appraisal of the investment policy on the program or project;
dd/ The prefeasibility study report or investment policy proposal report of the program or project, made according to the form provided in Appendix III to this Decree;
e/ A report on evaluation of the implementation of the program or project in the previous period (for programs and projects which have been implemented in the previous period and will be further implemented in the subsequent period);
g/ Opinions of the provincial-level People’s Council, for ODA or concessional loan-funded group-A projects for which prefeasibility study reports are prepared by provincial-level People’s Committees under Point c, Clause 1, Article 23 of the Law on Public Investment;
h/ Other related documents (if any);
2. The minimum number of appraisal dossier sets to be sent to the appraisal council or agency assuming the prime responsibility for the appraisal is 10.
3. Contents of appraisal of investment policy on ODA or concessional loan-funded public investment programs:
a/ Conformity with criteria for identification of public investment programs;
b/ Compliance with legal provisions of the dossier submitted for appraisal;
c/ Conformity with strategic objectives; regional and territorial socio-economic development plans; sectoral development master plans; and related master plans in accordance with the planning law;
d/ The contents prescribed in Article 29 of the Law on Public Investment, of which the following basic contents shall be appraised in detail: objectives, scope, scale and objects of investment, program implementation duration and schedule and fund allocation plan; funding sources and fund balancing capability; mobilization of other funding sources and resources;
dd/ Socio-economic efficiency, environmental protection and sustainable development.
4. Contents of appraisal of investment policy on ODA or concessional loan-funded programs and projects:
a/ Necessity of the investment;
b/ Compliance with legal provisions of the dossier submitted for appraisal;
c/ Conformity with strategic objectives; and related plans and master plans in accordance with the planning law;
d/ Conformity with criteria for classification of projects in accordance with the Law on Public Investment;
dd/ The contents prescribed in Articles 30 and 31 of the Law on Public Investment, of which the following basic contents shall be appraised in detail: objectives, scale and form of investment, scope, location and area of the to-be-used land plot, implementation duration and schedule, plan on selection of major technologies, environmental protection solutions, funding sources and fund balancing capability; capital recovery and debt repayment capability in case of using borrowed capital; and fund allocation plan;
e/ Socio-economic efficiency, environmental protection and sustainable development.
5. In the process of appraising the prefeasibility study report or investment policy proposal report of a program or project, the agency assuming the prime responsibility for the appraisal shall consult the agency assigned to appraise funding sources and fund balancing capability of the program or project according to Article 33 of the Law on Public Investment.
6. The time limit for appraisal of the investment policy proposal report or prefeasibility study report of a program or project, counted from the date the appraisal council or the agency assuming the prime responsibility for the appraisal receives a complete and valid dossier, is:
a/ Sixty days, for national target programs;
b/ Forty-five days, for public investment programs (excluding national target programs);
c/ Forty-five days, for group-A projects;
d/ Thirty days, for projects other than those prescribed at Points a, b and c of this Clause;
In case the dossier is invalid or the contents of the program’s or project’s prefeasibility study report or investment policy proposal report do not conform with Articles 29, 30 and 31 of the Law on Public Investment, within 10 days after receiving the dossier, the appraisal council or the agency assuming the prime responsibility for the appraisal shall send its written opinions to the appraisal-requesting agency for the latter to supplement the dossier or improve the prefeasibility study report or investment policy proposal report.
7. When necessary to extend the time limit for appraisal of the program’s or project’s prefeasibility study report or investment policy proposal report, the appraisal council or the agency assuming the prime responsibility for the appraisal shall:
a/ Report to the Prime Minister to ask for permission to extend the time limit for appraising the prefeasibility study report or investment policy proposal report, for programs and projects subject to investment policy decision by the National Assembly, the Government or the Prime Minister; or,
b/ Report to the head of the managing agency to ask for permission to the time limit for appraising the investment policy proposal report, for programs and projects subject to investment policy decision by managing agencies;
c/ The extension duration must not exceed the corresponding time limit prescribed in Clause 6 of this Article.
8. The appraisal council or agencies assuming the prime responsibility for appraising prefeasibility study reports of group-A projects or investment policy proposal reports of programs or projects shall send appraisal reports to:
a/ Managing agencies and authorities competent to decide on investment policy, for public investment programs;
b/ The Prime Minister while complying with Clause 4, Article 23 of the Law on Public Investment, for group-A projects falling under the competence of the Prime Minister;
c/ Appraisal-requesting agencies and authorities competent to decide on investment policy, for projects other than those prescribed at Points a and b of this Clause.
Article 16. Dossiers submitted to competent authorities and time limits for making investment policy decision for ODA or concessional loan-funded programs and projects
1. A dossier submitted to the authority competent to decide on investment policy on a program or project funded with ODA or concessional loans must comprise:
a/ The documents prescribed in Clause 1, Article 15 of this Decree, of which the request and prefeasibility study report or investment policy proposal report prescribed at Points a and b, Clause 1, Article 15 of this Decree must have been improved based on the appraisal report of the appraisal council or the agency assuming the prime responsibility for the appraisal;
b/ The appraisal report of the appraisal council or the agency assuming the prime responsibility for the appraisal, on the investment policy on the program or project, made according to the form provided in Appendix IVc to this Decree;
2. The number of dossier sets to be submitted to the authority competent to decide on investment policy on the program and project prescribed in Clause 1 of this Article is 5.
3. The time limit for making investment policy decision for a program or project, counted from the date the authority competent to decide on investment policy receives a complete and valid dossier, is:
a/ Twenty days, for public investment programs (excluding national target programs);
b/ Fifteen days, for group-A projects;
c/ Ten days, for projects other than those prescribed at Points a and b of this Clause.
4. Within 15 days after a competent authority approves a decision on investment policy on a program or project, the program’s or project’s managing agency shall send such decision to the Ministry of Planning and Investment and the Ministry of Finance.
Article 17. Activities to be carried out in advance
Managing agencies may carry out in advance activities in the stage of program or project implementation preparation as follows:
1. After the investment policy is decided by competent authorities, managing agencies shall:
a/ Design and submit a resettlement policy framework to competent authorities for approval in the course of appraisal of the program or project document and investment decision;
b/ Prepare a contractor selection plan; dossier of invitation for expression of interest, dossier of invitation for prequalification, bidding dossier and dossier of requirements.
2. Funds for carrying out activities in advance shall be allocated by project owners from funding sources for project preparation.
Article 18. Principal details of a decision on investment policy on a program or project funded with ODA or concessional loans
1. Name of the program or project.
2. Name(s) of the foreign donor or co-donors.
3. Name of the managing agency.
4. Objectives and scope of the program or project.
5. Place and time of implementation of the program or project.
6. Funding limit and structure of funding sources, including:
a/ Non-refundable ODA, ODA loans, concessional loans (calculated in the currency of the foreign donor);
b/ Counterpart fund.
7. Domestic financial mechanism and on-lending method applicable to the program or project.
Article 19. Adjustment of investment policy on ODA or concessional loan-funded programs and projects
1. The competence to decide to adjust investment policy on programs and projects must comply with Clause 1, Article 34 of the Law on Public Investment.
2. In case the adjustment of a program or project leads to changes in principal contents of the investment policy decision prescribed in Article 18 of this Decree, the order and procedures for decision on adjustment of investment policy must comply with:
a/ Points a, b and c, Clause 2, Article 34 of the Law on Public Investment, for public investment programs, national important projects or group-A projects;
b/ Clause 4, Article 14 of this Decree, for programs and projects subject to investment policy decision by the Prime Minister, except group-A projects;
c/ Clause 5, Article 14 of this Decree, for programs and projects subject to investment policy decision by heads of managing agencies;
d/ Dossiers submitted to competent authorities and time limits for decision on adjustment of investment policy on programs and projects must comply with Articles 15 and 16 of this Decree. Dossiers must clearly state the reason and changes compared to investment policy decisions.
3. In case the funding limit of a program or project is adjusted due to change in exchange rate or decrease of the ODA or concessional loan but other contents of the investment policy decision prescribed in Article 18 of this Decree remain unchanged, the managing agency is not required to comply with the order and procedures for decision on adjustment of investment policy under Clause 2 of this Article.
Section 2
FORMULATION AND APPRAISAL OF, AND DECISION ON INVESTMENT IN, PROGRAMS AND PROJECTS
Article 20. Competence to decide on investment in ODA or concessional loan-funded programs and projects
1. The Prime Minister shall decide on investment in the following ODA or concessional loan-funded programs and projects:
a/ National target programs and national important projects on which investment policy has been decided by the National Assembly;
b/ Public investment programs on which investment policy has been decided by the Government;
c/ Programs and projects funded with ODA or concessional loans of foreign donors in the fields of national defense, security or religious affairs.
2. Heads of managing agencies shall decide on investment in ODA or concessional loan-funded programs and projects other than those prescribed in Clause 1 of this Article and be held responsible for investment efficiency of these programs and projects.
Article 21. Order of formulation and appraisal of, and decision on investment in, ODA or concessional loan-funded programs and projects
1. To comply with Article 41 of the Law on Public Investment.
2. Feasibility study reports of programs and projects shall be formulated according to Article 44 of the Law on Public Investment and other relevant laws, with contents prescribed in forms provided by foreign donors taken into consideration, so as to ensure the consistency with contents of investment policy decisions and the harmony between the process and procedures applied by Vietnam and those by foreign donors.
3. Dossiers and contents of, and time limits for, appraisal of, and decision on investment in, programs and projects must comply with Article 45 of the Law on Public Investment and the Government’s regulations detailing a number of articles of the Law on Public Investment, specifically as follows:
a/ For programs and projects wholly or partially funded with loans on-lent from the state budget, their owners shall enclose dossiers with documents proving their financial capacity, debt repayment plans and other documents as guided by the law on public debt management;
b/ Foreign-language documents relating to programs and projects shall be enclosed with their Vietnamese translations;
c/ Within 15 days after a competent authority issues a decision on investment in a program or project, the program’s or project’s managing agency shall notify the foreign donor and project or program owner of the investment decision and at the same time send such decision (original or notarized copy) to the Ministry of Planning and Investment, the Ministry of Finance and related agencies, enclosed with the program’s or project’s approved feasibility study report which shall be affixed with the managing agency’s seal on adjoining pages, for coordinated supervision and implementation.
Article 22. Adjustment of ODA or concessional loan-funded programs and projects
1. The competence to decide on adjustment of programs and projects must comply with Clause 3, Article 43 of the Law on Public Investment.
2. Programs and projects shall be adjusted in the cases prescribed in Clauses 1 and 2, Article 43 of the Law on Public Investment.
3. The contents, order and procedures for formulation and appraisal of adjustments to programs and projects must comply with Article 43 of the Law on Public Investment and the Government’s regulations detailing a number of articles of the Law on Public Investment.
4. In case the adjustment of a program or project during implementation leads to changes in principal contents of the investment policy decision: The managing agency shall adjust investment policy according to Article 19 of this Decree before proceeding with the order and procedures for adjusting the program or project.
5. In case the adjustment of a program or project during implementation leads to modification, supplementation or extension of a specific treaty or specific agreement on ODA or concessional loans: On the basis of the program’s or project’s adjusted investment policy decision or investment decision approved by a competent authority, the managing agency shall coordinate with the agency proposing the conclusion of the treaty or agreement in modifying or supplementing the treaty or agreement.
Chapter III
FORMULATION AND APPRAISAL OF, DECISION ON IMPLEMENTATION POLICY FOR, AND APPROVAL OF DOCUMENTS OF, TECHNICAL ASSISTANCE PROJECTS AND NON-PROJECT ACTIVITIES FUNDED WITH NON-REFUNDABLE ODA
Article 23. Competence to approve implementation policy for technical assistance projects, non-project activities and documents thereof
1. The Prime Minister shall approve implementation policy for technical assistance projects and non-project activities funded with non-refundable ODA in the following cases: projects accompanied by policy frameworks; projects and non-project activities in the fields of security, national defense and religious affairs; procurement of goods subject to permission of the Prime Minister; and Vietnam’s participation in regional programs and projects.
2. Heads of managing agencies shall:
a/ Approve documents of technical assistance documents and non-project activities based on the Prime Minister’s decisions on implementation policy, for the cases specified in Clause 1 of this Article;
b/ Approve documents of technical assistance projects and non-project activities, for the cases not specified in Clause 1 of this Article and not subject to the order and procedures for deciding on implementation policy.
Article 24. Formulation of documents of technical assistance projects and non-project activities
Managing agencies shall coordinate with foreign donors in formulating documents of technical assistance projects and non-project activities according to the forms provided in Appendices V and VI to this Decree.
Article 25. Order and procedures for deciding on implementation policy for technical assistance projects and non-project activities falling under the Prime Minister’s competence
1. Managing agencies shall send to the Ministry of Planning and Investment written requests for approval by competent authorities of implementation policy accompanied by project or non-project activity documents.
2. Within 5 working days after receiving a valid dossier specified in Clause 1 of this Article, the Ministry of Planning and Investment shall send a written request to related agencies for opinion. Within 10 days after receiving the Ministry of Planning and Investment’s request, consulted agencies shall send their written opinions to the Ministry of Planning and Investment.
3. Within 5 working days after receiving written opinions of related agencies, the Ministry of Planning and Investment shall sum them up for submission to the Prime Minister for consideration and decision.
4. The Prime Minister shall consider and decide on implementation policy for a project or non-project activity which must include the following contents:
a/ Name of the project or non-project activity;
b/ Donors and co-donors (if any);
c/ Objectives;
d/ Funding limit and structure of funding sources (non-refundable ODA and counterpart fund).
5. In case a project or non-project activity remains incomplete after opinions of related agencies are assimilated, the Ministry of Planning and Investment shall send a written request to the managing agency for finalization of project or non-project activity documents.
Article 26. Order and procedures for appraisal and decision on approval of documents of technical assistance projects or non-project activities
1. For projects and non-project activities specified in Clause 1, Article 23 of this Decree, managing agencies shall not organize appraisal. Heads of managing agencies shall base themselves on implementation policy decisions to decide on approval of project or non-project activity documents.
2. For projects and non-project activities other than those specified in Clause 1, Article 23 of this Decree:
a/ A managing agency shall assume the prime responsibility for appraisal; send a request to the Ministry of Planning and Investment, Ministry of Finance and related agencies for opinion, accompanied by project or non-project activity documents and other relevant documents (if any);
b/ Within 10 days after receiving a valid dossier, consulted agencies shall give their written opinions on project or non-project activity documents and related necessary issues, focusing on the necessity, objectives and expected main outcomes; funding sources, fund balancing capacity and applicable financial mechanism; conditions of foreign donors (if any) and ability of the Vietnamese side to satisfy such conditions;
c/ Contents of appraisal of a project or non-project activity include conformity of the project or non-project activity with development targets of the concerned ministries, sectors, localities, implementation units and beneficiaries; appropriateness of the implementation method; funding sources and fund balancing capacity, applicable financial mechanism; rationality of budget structure for main work items; commitments, prerequisites and other conditions of foreign donors and participants (if any); efficiency, ability to apply outcomes in practice, and sustainability upon completion; related parties’ opinions that have attained unanimity or remain divergent;
d/ A dossier for appraisal of a project or non-project activity must comprise the project owner’s request for approval of project or non-project activity documents; draft project or non-project activity documents; written opinions of related agencies; other relevant documents (if any) such as donors’ documents on agreement with contents of the project or non-project activity, notice of or commitment to donation consideration, memorandum of understanding with donors, and report of the appraisal expert team made at the request of donors;
dd/ Based on appraisal results, heads of managing agencies shall decide to approve project or non-project activity documents;
e/ The time limit for appraising project or non-project activity documents is 20 days after the receipt of a complete and valid dossier;
g/ For a project or non-project activity with a non-refundable ODA amount not exceeding USD 200,000, the head of its managing agency shall approve its documents and is not required to collect opinions of related agencies.
3. After project or non-project activity documents are approved, managing agencies shall notify such to the Ministry of Planning and Investment, Ministry of Finance and related agencies together with the approved documents bearing the managing agency’s seal on adjoining pages and relevant documents for supervision and coordinated implementation.
4. Principal contents of a decision approving documents of a technical assistance project or non-project activity:
a/ Name of the project or non-project activity;
b/ Names of foreign donors and co-donors (if any);
c/ Names of the managing agency and project owner;
d/ Implementation duration and location;
dd/ Objectives, activities and expected outcomes;
e/ Management organization;
g/ Funding limit and structure of funding sources, including non-refundable ODA (in original currency and converted into Vietnam dong) and counterpart fund (in Vietnam dong);
h/ Other contents.
5. The Ministry of Planning and Investment shall officially notify decisions approving project or non-project activity documents to foreign donors and request donation consideration.
Article 27. Modification of implementation policy decisions and decisions approving documents of technical assistance projects or non-project activities
1. For an implementation policy decision:
a/ The managing agency shall send to the Ministry of Planning and Investment a notice of changes in contents of the implementation policy decision as specified in Clause 4, Article 25 of this Decree, enclosed with modified project or non-project activity documents;
b/ The Ministry of Planning and Investment shall assume the prime responsibility for collecting opinions of related agencies on related changes and exchange opinions with foreign donors on change of non-refundable ODA amount (if any) and sum up and report such opinions to the Prime Minister;
c/ The Prime Minister shall consider and decide on modification of implementation policy for the project or non-project activity.
2. For a decision approving project or non-project activity documents:
a/ The managing agency shall send to the Ministry of Planning and Investment, Ministry of Finance and related agencies a notice of changes in contents of the decision approving project or non-project activity documents, enclosed with modified project or non-project activity documents;
b/ Based on opinions of the Ministry of Planning and Investment, Ministry of Finance and related agencies, the head of the managing agency shall decide on approval of modified project or non-project activity documents;
c/ For a project or non-project activity with a non-refundable ODA amount not exceeding USD 200,000, the head of its managing agency shall modify the decision approving project or non-project activity documents and is not required to collect opinions of related agencies;
d/ In case changes in contents of project or non-project activity documents make such project or non-project activity fall beyond the approval competence provided in Article 23 of this Decree, the managing agency shall carry out the order and procedures for deciding on implementation policy specified in Article 25 of this Decree;
dd/ For a project or non-project activity specified in Clause 1, Article 23 of this Decree, the head of the managing agency shall base himself/herself on the decision modifying implementation policy mentioned in Clause 1 of this Article to decide on approval of modified project or non-project activity documents and is not required to collect opinions of related agencies.
Chapter IV
CONCLUSION OF TREATIES AND AGREEMENTS ON ODA OR CONCESSIONAL LOANS
Section 1
CONCLUSION OF TREATIES ON ODA OR CONCESSIONAL LOANS
Article 28. Grounds for proposing conclusion of treaties on ODA or concessional loans
1. Grounds for proposing conclusion of framework treaties on ODA or concessional loans include results of mobilization, strategy and policy on development cooperation, fields prioritized for use of ODA and concessional loans agreed upon between Vietnam and foreign donors or decisions on approval of policy on investment in programs or projects if associated with specific programs or projects.
2. Grounds for proposing conclusion of specific treaties on ODA or concessional loans:
a/ For programs and projects funded with ODA loans or concessional loans, and investment programs and projects funded with non-refundable ODA: Approved feasibility study reports of, and decisions on investment in, such programs and projects;
b/ For technical assistance projects and non-project activities funded with non-refundable ODA: Decisions approving project or non-project activity documents and such documents.
Article 29. Agencies proposing conclusion of treaties on ODA or concessional loans
1. The Supreme People’s Court, Supreme People’s Procuracy, State Audit Office of Vietnam, ministries, ministerial-level agencies, and government-attached agencies are agencies proposing to the Government the conclusion of specific treaties on non-refundable ODA for programs or projects of their respective agencies, except the cases specified in Clause 3 of this Article.
2. The Ministry of Finance is the agency proposing to the Government the conclusion of framework treaties or specific treaties on ODA loans, concessional loans, or non-refundable ODA for programs and projects funded with ODA or concessional loans, except non-refundable ODA specified in Clauses 3 and 4 of this Article.
3. The State Bank of Vietnam is the agency proposing to the Government the conclusion of specific treaties on non-refundable ODA not associated with loans of monetary financial institutions and international banks for which it acts as the representative.
4. The Ministry of Planning and Investment is the agency proposing to the Government the conclusion of framework treaties and specific treaties on non-refundable ODA not associated with loans for programs and projects other than those specified in Clauses 1, 2 and 3 of this Article.
Article 30. Order and procedures for conclusion, amendment, supplementation and extension of treaties on ODA or concessional loans
1. The order and procedures for conclusion, amendment, supplementation and extension of treaties on ODA or concessional loans must comply with the laws on treaties and public debt management.
2. For programs and projects funded with ODA or concessional loans under different treaties concluded according to project phasing:
a/ For treaties concluded for the first loan: Clause 1 of this Article shall be complied with;
b/ For treaties concluded for subsequent loans: Based on proposals of managing agencies on the demand for subsequent loans; limits of ODA loans or concessional loans approved by competent authorities in investment decisions; project progress and results of loan disbursement under concluded treaties, the Ministry of Finance shall assume the prime responsibility for, and coordinate with managing agencies and related agencies in, determining the value of subsequent loans, reach agreement with donors, and carry out the order and procedures specified in Clause 1 of this Article.
3. For treaties that require legal opinions of the Ministry of Justice, after receiving complete and valid dossiers in accordance with current regulations on provision of legal opinions, the Ministry of Justice shall carry out procedures for providing its legal opinions in accordance with law.
Section 2
CONCLUSION OF AGREEMENTS ON ODA OR CONCESSIONAL LOANS
Article 31. Grounds for proposing conclusion of agreements on ODA or concessional loans
1. For framework agreements on ODA or concessional loans: Grounds for proposing the conclusion of such an agreement include results of mobilization, strategy and policy on development cooperation, fields prioritized for use of ODA and concessional loans agreed upon between Vietnam and foreign donors or decisions on approval of investment policy on programs or projects if associated with specific programs or projects.
2. For specific agreements on ODA or concessional loans: Grounds for proposing the conclusion of such an agreement include framework treaty or agreement on ODA or concessional loans (in case of conclusion of such framework treaty or agreement) and decisions on investment in programs and projects.
3. For specific agreements on non-refundable ODA: In case donors request conclusion of agreements, grounds for proposing the conclusion of such an agreement include framework treaty on non-refundable ODA (in case of conclusion of such a treaty) and project or non-project activity documents or feasibility study reports (for investment projects) approved by competent authorities.
Article 32. Agencies proposing the conclusion of agreements on ODA or concessional loans
1. The Supreme People’s Court, Supreme People’s Procuracy, State Audit Office of Vietnam, ministries, ministerial-level agencies, and government-attached agencies are agencies proposing to the Prime Minister the conclusion of specific agreements on non-refundable ODA for programs and projects of their respective agencies, except the cases specified in Clause 3 of this Article.
2. The Ministry of Finance is the agency proposing to the Prime Minister the conclusion of framework agreements and specific agreements on ODA loans, concessional loans or non-refundable ODA for programs and projects funded with ODA or concessional loans, except non-refundable ODA specified in Clause 3 of this Article.
3. The Ministry of Planning and Investment is the agency proposing to the Prime Minister the conclusion of framework agreements and specific agreements on non-refundable ODA not associated with loans for programs and projects other than those specified in Clauses 1 and 2 of this Article.
Article 33. Order and procedures for conclusion, amendment, supplementation and extension of agreements on ODA or concessional loans
1. Order and procedures for conclusion of an agreement on ODA or concessional loans:
a/ In pursuance to Article 31 of this Decree and at the request of the managing agency, the Ministry of Finance shall request foreign donors or lenders to send a draft agreement on ODA or concessional loans;
b/ The Ministry of Finance shall submit to the Prime Minister for decision the negotiation on the agreement on ODA or concessional loans. A dossier on negotiation to be submitted to the Prime Minister must comprise written proposals on negotiation policy and on-lending (in case of on-lending of ODA loans or concessional loans); draft agreement on ODA or concessional loans; and project investment decision;
c/ Based on the Prime Minister’s approval of negotiation, the Ministry of Finance shall collect opinions of the Ministry of Foreign Affairs, Ministry of Justice and related agencies on the draft agreement on ODA loans or concessional loans. Consulted agencies shall give their written opinions within 15 days after receiving the request for opinion and relevant documents;
d/ The Ministry of Finance shall assume the prime responsibility for, and coordinate with related agencies in, negotiating with foreign donors or lenders on the draft agreement on ODA or concessional loans;
dd/ Based on negotiation results, the Ministry of Finance shall submit to the Prime Minister for decision the conclusion of the agreement on ODA or concessional loans with foreign donors or lenders;
e/ Based on the Prime Minister’s decision, the Minister of Finance or a person authorized by the Prime Minister shall conclude the agreement on ODA or concessional loans with foreign donors or lenders;
g/ For agreements on capital under blending mechanism: The Ministry of Finance shall carry out conclusion procedures specified in this Clause;
h/ For programs and projects funded with ODA or concessional loans under different agreements on ODA loans or concessional loans according to project phasing: Based on the value of loans stated in the concluded relevant framework treaty, the Ministry of Finance shall assume the prime responsibility for, and coordinate with managing agencies and related agencies in, carrying out the conclusion order and procedures specified in this Clause.
2. Order and procedures for amendment, supplementation and extension of an agreement on ODA loans or concessional loans:
a/ The managing agency shall send to the Ministry of Finance a written request for amendment, supplementation or extension of the agreement on ODA loans or concessional loans;
b/ The Ministry of Finance shall collect opinions of the Ministry of Foreign Affairs, Ministry of Justice and related agencies on the request for amendment, supplementation or extension of the agreement of ODA loans or concessional loans. Consulted agencies shall send their written opinions to the Ministry of Finance within 15 days after receiving the request for opinion and related documents;
c/ The Ministry of Finance shall sum up opinions and report to the Prime Minister for approval the amendment, supplementation or extension of the agreement on ODA loans or concessional loans;
d/ Based on the Prime Minister’s approval, the Ministry of Finance shall carry out procedures for amending, supplementing or extending the agreement on ODA loans or concessional loans with foreign donors or lenders;
dd/ In case the amendment, supplementation or extension of the agreement on ODA loans or concessional loans leads to a change in contents of the approved decision approving investment policy on programs and projects, the managing agency shall adjust the investment policy under Article 19 of this Decree before carrying out the order and procedures for amending, supplementing or extending the agreement on ODA loans or concessional loans under Points a, b, c and d of this Clause.
3. Order and procedures for conclusion, amendment, supplementation and extension of an agreement on non-refundable ODA:
a/ The conclusion-proposing agency shall discuss and reach agreement with foreign donors on the draft agreement;
b/ The conclusion-proposing agency shall collect opinions of the Ministry of Foreign Affairs, Ministry of Justice and related agencies on the draft agreement. Consulted agencies shall give their written opinions within 15 days after receiving the request for opinion and relevant documents;
c/ The conclusion-proposing agency shall exchange opinions with foreign donors for finalization of the draft agreement and propose the agreement conclusion to the Prime Minister;
d/ After obtaining the Prime Minister’s decision permitting the agreement conclusion, the head of the agency authorized by the Prime Minister shall proceed with concluding the agreement with foreign donors;
dd/ For amendment or supplementation of an agreement on non-refundable ODA: Based on summarization of opinions of the Ministry of Foreign Affairs, Ministry of Justice and related agencies, the conclusion-proposing agency shall submit the amendment or supplementation of the agreement to the Prime Minister for consideration and decision.
4. For agreements on ODA or concessional loans that require legal opinions of the Ministry of Justice, after receiving complete and valid dossiers in accordance with current regulations on provision of legal opinions, the Ministry of Justice shall carry out procedures for providing its legal opinions in accordance with law.
5. In case donors do not request conclusion of agreements on non-refundable ODA: Based on project or non-project activity documents approved by competent authorities, managing agencies or the State Bank of Vietnam (for monetary financial institutions and international banks with the State Bank of Vietnam acting as the representative) and donors shall exchange their written opinions on commitments and receipt of non-refundable ODA for implementation of projects or non-project activities in compliance with relevant regulations; make and send true copies of such documents to the Ministry of Planning and Investment, Ministry of Finance and related agencies for supervision and coordinated implementation.
6. In case donors request conclusion of agreements on implementation of projects or non-project activities: Managing agencies shall formulate and negotiate on agreement contents and conclude agreements with donors on the principle that such agreements are not contrary to treaties or agreements on ODA or concessional loans and relevant regulations.
Chapter V
MANAGEMENT OF IMPLEMENTATION OF PROGRAMS, PROJECTS AND NON-PROJECT ACTIVITIES
Article 34. Forms of organization of management of programs, projects or non-project activities
Depending on the size, nature, specific conditions, and program or project management capacity of their units, and foreign donors’ regulations on management of ODA and concessional loans, investment deciders shall decide to apply one of the following forms of organization of program or project management:
1. For investment programs and projects: To comply with the laws on public investment management and construction investment management.
2. For a technical assistance project or non-project activity funded with non-refundable ODA:
a/ The managing agency shall directly manage and administer the implementation of the program, project or non-project activity or assign an attached unit, which acts as the project owner, to do so. For a technical assistance project or non-project activity funded with a non-refundable ODA amount not exceeding USD 200,000, the managing agency or project owner shall not be required to establish a project management unit but may use its professional apparatus to manage and administer the implementation of the project or non-project activity.
b/ In case the foreign donor directly manages the whole program, project or non-project activity: If the program, project or non-project activity document or the relevant specific treaty or agreement on ODA or concessional loan states that the foreign donor directly manages the whole program, project or non-project activity, the head of the managing agency or project owner shall assign an attached unit to coordinate with the foreign donor in supervising the implementation progress and quality and use of outcomes of the program, project or non-project activity.
c/ In case the foreign donor directly manage part of the program, project or non-project activity: If the program, project or non-project activity document or the relevant specific treaty or agreement on ODA or concessional loan states that the foreign donor directly manages part of the program or project and the Vietnamese partner manages the remaining part, the managing agency or project owner shall decide to establish the project management unit to manage the tasks to be performed by the Vietnamese partner in accordance with Vietnam’s current regulations and commitments with the foreign donor.
3. For other programs and projects, the managing agency shall decide to apply one of the following forms:
a/ Establishing a new project management unit;
b/ Assigning an existing project management unit to manage and implement a new program or project. In this case, the managing agency or project owner shall issue a decision assigning the task of managing the implementation of the new program or project to the operating project management unit;
c/ Managing and implementing programs or projects by project owners themselves.
4. For each large-scale program or project applying high technology or related to security or national defense; program or project with special funding sources or management models which requires establishment of a project management unit; or program or project for which the establishment of a project management unit is mandated by the relevant treaty or agreement on ODA or concessional loans, a project management unit shall be established.
5. For small-scale projects or projects with community participation, project owners shall use their attached professional apparatuses which have sufficient conditions and capacity to manage and implement these projects.
6. Hiring a consultancy organization to manage some or all of program or project implementation tasks.
Article 35. Establishment of a project management unit
1. Within 30 days after obtaining an investment decision, the head of the managing agency shall issue a decision to establish a project management unit. If the project owner has full legal person status, the head of the managing agency may authorize the project owner to issue a decision to establish a project management unit (except specialized or regional project management units established under regulations on construction investment management).
2. In case of establishment of a new project management unit under Point a, Clause 3, Article 34 of this Decree: The decision to establish a project management unit shall be enclosed with a document defining the organizational structure; functions and tasks; responsibilities, powers, and authorization; and terms of reference for some key members of the project management unit.
3. In case of assigning an operating project management unit to manage a new program or project under Point b, Clause 3, Article 34 of this Decree: Based on the decision on the establishment of the existing project management unit, the head of the managing agency or the project owner shall add and adjust the functions and tasks of the operating project management unit and open a new account and make a new seal serving the management of the new program or project.
4. In case the project owner manages the program or project by itself under Point c, Clause 3, Article 34 of this Decree: On the basis of the decision of the head of the managing agency that assigns the project owner to manage the project implementation, within 30 days after obtaining an investment decision, the project owner shall issue a decision to appoint and assign additional tasks to units and employees under its management to carry out program or project management activities in accordance with current law, including at least a person acting as the focal point for management work and a person acting as the focal point for monitoring financial issues, who may work on a full-time or part-time basis and must have professional qualifications relevant to their positions.
5. Within 15 days after the issuance of the decision to establish the project management unit, the head of the managing agency or the project owner that has legal person status authorized by the head of the managing agency shall issue a Regulation on organization and operation of the project management unit. In case the treaty or agreement on ODA or concessional loans for the program or project contains provisions on the organizational structure of project management and tasks and powers of the project management unit, these provisions shall be concretized and fully incorporated in the Regulation on organization and operation of the project management unit.
Article 36. Tasks and powers of managing agencies in program and project implementation management
1. To decide on the organization of the program or project implementation management apparatus, including the project owner; the program or project steering committee (when necessary).
2. To formulate and approve 5-year medium-term plans for implementation of ODA or concessional loan-funded programs and projects in 5-year medium-term public investment plans.
3. To approve overall plans for program and project implementation; to summarize and approve annual plans for program and project implementation.
4. To direct bidding work in accordance with provisions on bidding of current laws and treaties or agreements on ODA or concessional loans.
5. To monitor and examine the implementation of plans; to supervise and evaluate the implementation of programs and projects so to ensure that programs and projects are implemented on schedule, with quality and achieve set objectives in accordance with the law on public investment and this Decree’s provisions on supervision and evaluation.
6. To take responsibility for costs arising due to subjective causes, loss, waste, corruption, wrongdoings and violations in ODA and concessional loan management and use under their respective management as prescribed by the law on public investment.
7. To perform other tasks and exercise other powers in accordance with law and specific treaties or agreements on ODA and concessional loans for programs and projects.
Article 37. Tasks and powers of project owners in program and project implementation management
1. To organize an apparatus for program and project management and implementation on the basis of decisions of managing agencies.
2. To take responsibility for management and use of ODA or concessional loans and counterpart funds of programs or projects from the time of preparation and implementation to the time of putting programs or projects into operation or use.
3. To formulate and submit to managing agencies for approval 5-year medium-term plans, master plans and annual plans for program and project implementation. To formulate and approve annual plans on counterpart funds, for programs and projects which are funded by loans wholly or partially on-lent from the state budget and have counterpart funds arranged by project owners themselves.
4. To formulate action plans for each quarter in order to serve the administration, supervision and evaluation of programs and projects.
5. To perform bidding work in accordance with the current bidding law and specific treaties on ODA and concessional loans.
6. To negotiate and conclude, and supervise the performance of, contracts and handle arising problems according to their competence.
7. To coordinate with local administrations in carrying out compensation, support and resettlement work in accordance with law and specific treaties or agreements on ODA or concessional loans for programs and projects (for construction investment projects).
8. To supervise and evaluate programs and projects in accordance with the law on public investment supervision and evaluation and this Decree, aiming to ensure that programs and projects are implemented on schedule, with quality and achieve set objectives.
9. To direct project management units to conduct accounting, account finalization and auditing of programs and projects in accordance with law; to make completion reports and settlement reports for programs and projects; to audit and hand over output assets and documents of programs and projects, and comply with provisions on project closure in specific treaties or agreements on ODA or concessional loans for programs and projects.
10. To be held fully responsible for loss, waste, corruption, wrongdoings and violations in program and project management and implementation under their competence, which cause economic, social or environmental damage and affect the objectives and overall effectiveness of programs and projects.
11. For programs or projects funded by loans wholly or partially on-lent from the state budget, to repay fully and timely on-lent loan amounts under on-lending conditions concluded with competent finance agencies or banks.
12. To perform other tasks and exercise other powers in accordance with law and specific treaties or agreements on ODA or concessional loans for programs or projects.
13. To be held responsible before law and managing agencies within the scope of their rights and obligations prescribed in this Decree and relevant laws.
Article 38. Tasks and powers of project management units in program and project implementation management
1. Tasks and powers of a project management unit shall be assigned by the project owner in the decision to establish the project management unit.
The project owner may authorize the project management unit to decide or sign documents within the former’s competence in the course of program or project implementation management. The authorization shall be stated in the decision to establish the project management unit or in a specific authorization document issued by the project owner.
2. A project management unit may be assigned to manage more than one program or project, but such shall be approved by the project owner and ensure the following principles: Each program or project is not interrupted, and is managed and account-finalized in accordance with current laws. If a project management unit is unqualified for performing certain management and supervision tasks, it may hire consultants to perform these tasks provided that the project owner so agrees.
3. Project management units shall perform the following tasks assigned by project owners and report performance results to the latter:
a/ Making an overall plan and annual plans on program and project implementation;
b/ Preparing for and implementing programs and projects;
c/ Carrying out activities related to bidding, contract management, and compensation, support and resettlement;
d/ Disbursing funds for and managing finances and assets of programs and projects;
dd/ Monitoring and evaluating the program and project implementation;
e/ Preparing for pre-acceptance test and handover of outcomes of programs and projects after completion; completing payment, account finalization and auditing work, handing over assets of programs and projects; making completion reports and account finalization reports of programs and projects; and proceeding with procedures for project closure according to treaties or agreements on ODA or concessional loans for programs and projects;
g/ Performing other tasks under programs or projects as assigned by project owners.
4. To perform other tasks and exercise other powers in accordance with law and specific treaties or agreements on ODA or concessional loans for programs and projects.
5. To be held responsible before law and managing agencies within the scope of their rights and obligations prescribed in this Decree and relevant laws.
Article 39. Hiring of program or project management consultants
1. Program or project management consultancy organizations shall perform tasks and implement commitments under the contracts signed with project owners and comply with relevant current laws.
2. Project owners shall select program or project management consultants through bidding and sign consultancy contracts according to current regulations. When applying the form of hiring program or project management consultants, project owners shall assign a professional unit belonging to their apparatuses or appoint a focal unit to examine and supervise the performance of contracts by consultants.
Article 40. Formulation, appraisal, approval and assignment of public investment plans using foreign funds for ODA or concessional loan-funded programs and projects
1. The formulation, appraisal, approval and assignment of ODA or concessional loan-funded public investment plans for public investment projects must comply with Chapter III of the Law on Public Investment and the Government’s regulations detailing a number of articles of the Law on Public Investment.
2. The application of the domestic financial mechanism to on-lending of ODA or concessional loans of foreign donors for public non-business units and enterprises must comply with the Law on Public Debt Management and other relevant laws.
3. For programs and projects on which investment policy has been decided by competent authorities and new projects, the time limit for allocating funds is 6 years, for group-A projects, 4 years, for group-B projects, or 3 years, for group-C projects. In case of failure to meet the above regulation, the Prime Minister shall decide on the time limit for allocating funds for projects financed by the central budget.
The duration of implementation of an ODA or concessional loan-funded program or project shall be counted from the time such program or project is allocated funds by competent authorities.
Article 41. Formulation and approval of overall plans for implementation of programs and projects funded by ODA or concessional loans and counterpart funds
1. The overall plan for implementation of a program or project shall be formulated for the entire implementation period of the program or project and must cover all components, items, activity groups and corresponding funding sources (ODA, concessional loan and counterpart fund) and its tentative implementation schedule.
2. Within 30 days after signing a specific treaty or an agreement on ODA or concessional loan, based on the feasibility study report, the approved program or project document, program or project investment decision, and the specific treaty or agreement on ODA or concessional loans for the program or project, the project owner shall work with the foreign donor in formulating or reviewing and updating the overall plan for program and project implementation, and submit it to the managing agency for consideration and approval.
3. Within 5 working days after approving the overall plan for program or project implementation, the managing agency of such program or project shall send the approval decision enclosed with such overall plan to the Ministry of Planning and Investment, Ministry of Finance, related agencies and the foreign donor to serve the supervision, evaluation and coordinated implementation of the program or project.
Article 42. Formulation and approval of annual plans for implementation of programs and projects funded by ODA or concessional loans and counterpart funds
1. Based on overall plans for program or project implementation approved by managing agencies; based on the actual situation of disbursement and disbursement plans according to specific treaties or agreements on ODA and concessional loans for programs or projects, project owners shall consider and submit to heads of managing agencies for approval annual plans for program or project implementation. Annual plans for implementation of ODA or concessional loan-funded programs or projects constitute part of annual public investment plans of managing agencies.
2. An annual plan for program or project implementation must contain detailed information on the program’s or project’s components (technical assistance and construction investment ones), items and main activities, funding sources, including also counterpart fund, and tentative implementation schedule.
3. Once approved by managing agencies, annual plans shall serve as a basis for project owners to prepare quarterly implementation plans to serve the administration, supervision and evaluation of program or project implementation.
4. Annually, at the time of formulating socio-economic development plans and state budget estimates under current regulations, managing agencies shall incorporate annual plans for program and project implementation in their annual public investment plans and budget plans. On the basis of annual budget plans of managing agencies, the Ministry of Planning and Investment shall sum up investment funding plans and coordinate with the Ministry of Finance in submitting to the Government for consideration and approval annual socio-economic development plans and budgets to be submitted to the National Assembly for adoption.
5. The process and procedures for assignment of annual plan tasks for program and project implementation must comply with current regulations on assignment of annual socio-economic development plan tasks.
6. Within 5 working days after approving an annual plan for program and project implementation, the project owner shall send the approval decision enclosed with such plan to the managing agency and, through the latter, to the Ministry of Planning and Investment, related agencies and the foreign donor to serve the supervision, evaluation and coordinated implementation of programs and projects.
7. For a program or project wholly funded by loans on-lent from the state budget: Annually, at the time of formulation of socio-economic development plans and state budget estimates, the project owner shall make a plan for program and project implementation and submit to the managing agency for approval an ODA and concessional loan plan, which shall be sent to the Ministry of Planning and Investment, the Ministry of Finance and the authorized on-lending agency for monitoring and supervision of implementation. The managing agency and project owner shall self-balance counterpart funds according to the program or project implementation schedule.
8. For a program or project partially funded by loans on-lent from the state budget: Depending on the nature of each program or project component (whole allocation or on-lending), the project owner shall apply the process of formulation and submission for approval of the program or project plan corresponding to each of its components prescribed in Clauses 1, 2 and 7 of this Article.
Article 43. Counterpart funds for program and project preparation and implementation
1. Sufficient counterpart funds shall be ensured for program and project preparation and implementation (including activities to be carried out in advance, if any). Sources and limits of and mechanism applicable to counterpart funds for a program or project must be suitable to the program’s or project’s expenditure items agreed upon between the managing agency and foreign donor and stated in the feasibility study report, appraised program or project document and investment decision.
2. Counterpart funds shall be used for:
a/ Expenses for operation of the project management unit (salary, bonus, allowance, office, working instruments and administrative expenses);
b/ Expenses for design appraisal, approval of total cost estimate, completion of investment and construction procedures and other necessary administrative procedures;
c/ Expenses related to contractor selection;
d/ Expenses for conferences, workshops and training in program or project management and implementation operations;
dd/ Expenses for receiving and popularizing international technologies, experiences and skills;
e/ Expenses for public information about and advertisement of the program and project and community activities;
g/ Payment of taxes, customs charges and insurance premiums under current regulations;
h/ Payment of interests, deposits, commitment charges and other relevant charges payable to foreign partners;
i/ Expenses for equipment receipt and domestic transport (if any);
k/ Expenses for account finalization and verification of completed account finalization statements;
l/ Expenses for compensation, ground clearance and resettlement;
m/ Expenses for basic activities of programs or projects (survey, technical design, construction; construction of several items, procurement of several equipment);
n/ Expenses for monitoring and evaluation activities; quality control and testing, pre-acceptance test, handover and finalization of programs or projects;
o/ Contingency expenses and other reasonable expenses.
3. For a program or project to be wholly funded by allocations from the state budget: The managing agency shall balance counterpart funds in its annual budget estimates according to regulations on budget management decentralization and from other financial sources in accordance with law and clearly determine funds based on the sources of capital construction and non-business administrative funds corresponding to program or project expenditure items; ensure full and timely allocation of counterpart funds according to the schedule stated in the feasibility study report or appraised program or project document and investment decision in conformity with the law on the state budget and the specific treaty or agreement on ODA and concessional loans for the program or project.
4. For a program or project to be wholly funded by on-lent loans: The project owner shall self-allocate counterpart funds or submit it to the managing agency for decision in order to ensure sufficient counterpart funds for the program or project before signing an on-lending contract.
5. For a program or project that applies the mixed financial mechanism (to be funded by both state budget allocations and on-lent loans): The managing agency or project owner shall self-allocate counterpart funds in accordance with relevant laws before signing an on-lending contract.
6. For a program or project to be funded by state budget allocation which is approved or concluded at a time other than the time of making annual budget estimates, and not yet allocated with counterpart funds: The managing agency shall send a written request to the Ministry of Planning and Investment and the Ministry of Finance for handling according to their competence or for submission to competent authorities for consideration and decision on addition to the annual budget estimate.
In case the time of making a plan on counterpart funds for preparing and implementing a program or project considered for aid does not coincide with the time of making annual budget plans, the managing agency shall balance counterpart funds in its total allocated fund. In case the managing agency fails to self-balance counterpart funds, it shall send a written request to the Ministry of Planning and Investment and the Ministry of Finance for consideration and submission to competent authorities for decision on fund advance and then deduct the advanced amount into the subsequent annual plan.
7. Sources of counterpart funds include the state budget and other funding sources of the State; funds of project owners (for the case of on-lending ODA and concessional loans); and ODA and concessional loans of foreign donors under decisions of the Prime Minister.
8. Spending norms for expenses from counterpart funds must comply with state budget spending regimes and relevant laws.
Article 44. Taxes and charges for programs and projects
Taxes and charges levied on programs and projects must comply with current regulations on taxes and charges and treaties to which the Socialist Republic of Vietnam is a contracting party. In case provisions of a domestic law and a signed treaty differ on a matter, the latter shall prevail.
Article 45. Compensation, support and resettlement
Compensation, support and resettlement in the course of program or project implementation must comply with current regulations and treaties on ODA and concessional loans to which the Socialist Republic of Vietnam is a contracting party. In case provisions of a domestic law and a signed treaty differ on a matter, the latter shall prevail.
Article 46. Bidding
1. The selection of contractors must comply with treaties between Vietnam and foreign donors; in case a treaty to which the Socialist Republic of Vietnam is a contracting member contains provisions on contractor selection which are different from those of the Bidding Law, the provisions of such treaty shall prevail. In case a treaty makes no mention on the application of procedures for contractor selection, the contractor selection must comply with the Bidding Law.
2. The procedures for delegation of powers for submission, appraisal and approval of bidding contents must comply with Vietnam’s bidding law. The content of appraisal and approval must comply with provisions of treaties according to the principles prescribed in Clause 1 of this Article.
Article 47. Surplus funds
1. Surplus funds (of ODA or concessional loans) arising in the course of implementation of a program or project include surplus funds after bidding, surplus funds due to changes in exchange rates and other surplus funds.
2. Surplus funds shall not be used for ground clearance, tax payment and current expenditures.
3. In case of necessity to use surplus funds to improve effectiveness of an ongoing program or project without changing major objectives stated in the investment policy decision of the program or project: The managing agency shall coordinate with the Ministry of Planning and Investment, the Ministry of Finance and the foreign donor in determining the effectiveness and necessity to decide on the use of such funds and proceed with the procedures for modification of the investment policy and the ongoing program or project under Articles 19 and 22 of this Decree or the procedures for adjustment of the project implementation policy and the decision on approval of the document of the ongoing project under Article 27 of this Decree.
4. If wishing to use surplus funds for the implementation of a new program or project, the managing agency shall send a written request for use of these funds enclosed with a report on proposal of investment policy for a new program or project to the Ministry of Planning and Investment. The Ministry of Planning and Investment shall assume the prime responsibility for, and coordinate with related agencies in, reaching agreement with the foreign donor on the use of surplus funds and applicable financial mechanism and proceed with the procedures for decision on investment policy under Articles 14 thru 18 of this Decree.
5. For the cancellation of surplus funds, the managing agency shall sum up opinions of the Ministry of Planning and Investment and request the Ministry of Finance to cancel surplus funds of the program or project. Based on the managing agency’s proposal on cancellation of surplus funds, the Ministry of Finance shall notify the foreign donor of the cancellation of surplus funds.
In case charges for cancellation of surplus funds or other charges arise, the managing agency shall sum up opinions of the Ministry of Planning and Investment and request the Ministry of Finance to cancel surplus funds of the program or project. Based on the managing agency’s proposal on cancellation of surplus funds, the Ministry of Finance shall report to the Prime Minister for permission to cancel surplus funds before notifying thereof to the donor.
Article 48. Management of construction, pre-acceptance test, handover, audit and account finalization
1. For construction investment projects, the appraisal and approval of construction designs and total cost estimates, grant of construction permits, work quality management, pre-acceptance test, handover, warranty, and insurance of construction works must comply with current regulations on construction investment management and treaties on ODA or concessional loans to which the Socialist Republic of Vietnam is a contracting party. In case provisions of a domestic law and a signed treaty differ on a matter, the latter shall prevail.
2. For technical assistance programs and projects, after they are completed, managing agencies shall organize pre-acceptance test and take necessary measures to further operate and develop outcomes as well as comply with current regulations on management of finances and assets of programs and projects.
3. The auditing and account finalization of programs and projects must comply with current regulations and treaties on ODA or concessional loans to which the Socialist Republic of Vietnam is a contracting party or at the request of foreign donors. In case provisions of a domestic law and a signed treaty differ on a matter, the latter shall prevail.
Article 49. Monitoring, examination, evaluation and supervision of ODA or concessional loan-funded programs and projects
1. The monitoring, examination, evaluation and supervision of ODA or concessional loan-funded programs or projects are prescribed as follows:
a/ The monitoring, examination, evaluation and supervision of ODA or concessional loan-funded programs and investment projects must comply with Articles 69 thru 77 of the Law on Public Investment and relevant laws. In case provisions of a domestic law and a signed treaty differ on a matter, the latter shall prevail;
b/ The Ministry of Planning and Investment, other ministries, central bodies and localities shall formulate, manage, operate and apply the national information system and database on public investment under Clause 2, Article 97 of the Law on Public Investment and relevant laws.
2. The monitoring, examination, evaluation and supervision of independent technical assistance programs or projects funded with non-refundable ODA and not attached to any loans and non-project activities are prescribed as follows:
a/ Monitoring and examination of programs, projects and non-project activities: Project owners shall monitor and examine the implementation of programs, projects or non-project activities on the basis of the approved program, project or non-project activity document to ensure that the programs, projects or non-project activities achieve set objectives and results and periodically report on monitoring and examination results to managing agencies;
b/ Evaluation of programs, projects and non-project activities: Within 3 months from the date of completion of a program, project or non-project activity, the project owner shall complete a report on evaluation of the completed program, project or non-project activity, covering information on implementation process, implementation results of objectives, mobilized resources, benefits of the program, project or non-project activity for eligible beneficiaries, impacts and sustainability, lessons withdrawn from the implementation process and necessary recommendations, and responsibilities of related agencies, organizations and individuals;
c/ The regime of reporting on the implementation of programs, projects or non-project activities of managing agencies and project owners: Managing agencies and project owners shall send reports in accordance with current laws.
Chapter VI
FINANCIAL MANAGEMENT OF ODA LOANS AND CONCESSIONAL LOANS
Section 1
OPENING AND MANAGEMENT OF PAYMENT ACCOUNTS
Article 50. Opening of payment accounts for ODA or concessional loan-funded programs and projects at the State Treasury system and serving banks
1. ODA or concessional loan accounts:
a/ The state budget’s ODA loans and concessional loans shall be managed, recorded and monitored on accounts of the budget of the corresponding level;
b/ Project owners shall open funding accounts for their projects at the State Treasury system or serving banks to receive ODA loans or concessional loans for spending on activities under these programs or projects.
2. Counterpart fund accounts: Project owners shall open accounts at the State Treasury offices which are convenient for transactions (below referred to as the State Treasury offices where transactions are made) to control and disburse counterpart funds (domestic funds) of their projects.
Article 51. Criteria for selection of a serving bank for an ODA or a concessional loan-funded program or project
1. Being a bank selected among banks having experience in management of ODA and concessional loan withdrawal, being listed in a domestic credit rating, and satisfying banking operation standards and prudential ratios in banking operations.
2. Having a system of branches in conformity with requirements of the program or project.
3. Accepting to take responsibilities of a serving bank specified in Articles 50, 52, 53, 54, 63, 68 and 79 of this Decree.
Article 52. Responsibilities of serving banks
1. To carry out procedures for the Ministry of Finance or project owners to open ODA or concessional loan accounts for programs and projects in accordance with treaties or agreements on ODA loans or concessional loans concluded by competent authorities and Chapters VI and VII of this Decree.
2. To monitor and manage accounts, conduct banking transactions, and collect charges according to regulations; to report information on accounts of ODA or concessional loan-funded programs and projects according to Chapter VI and VII of this Decree.
Article 53. Principles of opening and management of ODA loan or concessional loan advance accounts
1. State Treasury offices where transactions are carried out or serving banks shall proceed with procedures for opening advance accounts (transaction accounts) for project owners or the Ministry of Finance in conformity with payment requirements of projects, ensuring the direct flow of funds to projects without any intermediary account. In case a project is funded with more than one funding source, it is required to open separate accounts to monitor funds withdrawn from each source.
2. If the managing agency of a project assigns more than one unit to implement the project, the project owner shall open sub-accounts at the State Treasury office where transactions are carried out or at branches of the serving bank.
3. The currency of the accounts must be the foreign currency of the loan (unless the opening of a VND account is accepted by the Ministry of Finance).
4. Management of interests on advance accounts:
a/ The amount of interest generated on an advance-payment account shall be separately monitored and used to pay banking service charges according to regulations. Banking service charges constitute an expense item of projects. If the generated interest amount is not enough to pay banking service charges, project owners shall estimate payable charge amounts and make payment with counterpart funds;
b/ Upon completion of activities using funds from the advance-payment account, for projects wholly funded by state budget allocations, project owners shall remit interest amounts left on advance-payment accounts to the state budget. For projects wholly funded with on-lent loans, interest amounts left on advance-payment accounts shall be considered revenues of project owners. For projects partially funded with on-lent loans, such amounts shall be distributed according to the on-lending ratio.
Article 54. Responsibilities of agencies where accounts of ODA or concessional loan-funded programs or projects are opened
1. At the request of a project owner that is also account holder, the State Treasury office or serving bank shall provide guidance on dossiers and procedures for opening payment accounts for the project and making payments and fund withdrawals and other operations according to current regulations.
2. The State Treasury office or serving bank shall guide and provide adequate information for the project owner to make payments through the State Treasury system or serving bank.
3. Every month as agreed by the agency where the program’s or project’s account is opened and account holder and upon request of the account holder, the agency where the program’s or project’s account is opened shall send to the account holder an advance-payment account statement which must specify information on every transaction, including amount in the original currency, beneficiary, transaction date, applied exchange rate, equivalent amount in Vietnam dong, opening balance, spent amounts, and closing balance.
4. Every month as agreed by the agency where the program’s or project’s account is opened and account holder and upon request of the account holder, the agency where the program’s or project’s account is opened shall send to the account holder a notice of the interest amount (if any) generated on the advance-payment account of the project; collected banking service charge amount; difference between the interest amount and collected charge amount; and opening balance and closing balance.
5. Within 2 working days after receiving a notice of disbursement from the foreign donor, the agency where the program’s or project’s account is opened shall make a credit entry in the account of the project and inform the account holder thereof.
6. Before the 10th every month, State Treasury offices and serving banks shall send to the Ministry of Finance a report on the previous month’s activities of ODA loan or concessional loan advance-payment accounts opened in their entire systems. Such a report must specify the names of projects and project owners, accounts, sub-accounts (for each source of funding); non-refundable ODA and loans, which are presented separately; opening balance, total amount withdrawn from the foreign donor’s loan in the period, total amount spent in the period, closing balance, and return of funds (if any) to the foreign donor; interests generated on the accounts of ODA loans and concessional loans in the period; amount of interest used to pay banking service charges; and interest amount left at the end of the period.
7. To check account balances with project owner at the end of every budgetary year.
Section 2
FORMULATION OF FINANCIAL PLANS FOR ODA LOANS OR CONCESSIONAL LOANS
Article 55. Formulation of annual financial plans for ODA or concessional loan-funded programs and projects
1. On the basis of medium-term plans approved by competent authorities, managing agencies shall prepare annual financial plans for ODA or concessional loan-funded programs and projects.
2. Annual financial plans shall be formulated in detailed for each program or project, treaty or agreement on ODA loans or concessional loans already concluded, specifying separately development investment expenditures, current expenditures (if any), on-lent fund and counterpart fund. For projects partially funded by on-lent loans, the ratio of allocated funds and on-lent loans must comply with the ratio prescribed in the financial mechanism approved by competent authorities.
3. The allocation of ODA loans or concessional loans and counterpart funds in the annual budget estimate must conform with concluded treaties or agreements on foreign ODA loans and concessional loans and suit the actual disbursement capacity of ODA or concessional loan-funded programs and projects.
4. The formulation of annual financial plans for ODA or concessional loan-funded programs and projects must follow the process of formulation of annual state budget estimates prescribed in the Law on the State Budget and relevant laws.
Article 56. Incorporation of financial plans on ODA loans and concessional loans in annual state budget estimates
1. For development investment projects funded by state budget allocations, the Ministry of Planning and Investment shall summarize plans on withdrawal of ODA loans and concessional loans and plans on provision of counterpart funds and send them to the Ministry of Finance for incorporation into annual state budget estimates.
2. For current expenditures, the Ministry of Finance shall incorporate plans on withdrawal of ODA loans and concessional loans and counterpart funds in annual state budget estimates.
3. For loans on-lent to provincial-level People’s Committees, provincial-level People’s Committees shall formulate plans on withdrawal of on-lent loans and report them to competent authorities prescribed in the Government’s decree on management of local administrations’ debts and send them to the Ministry of Finance for incorporation in state budget estimates to be reported to competent authorities for decision.
4. For on-lent loan-funded projects of enterprises and public non-business units, project owners shall send annual plans on disbursement of on-lent loans to the Ministry of Finance for registration and to the on-lending agency. The Ministry of Finance shall summarize these plans and propose the Government to decide on annual limits on ODA loans and concessional loans to be on-lent under regulations.
5. The Ministry of Finance shall guide contents of annual financial plans for ODA or concessional loan-funded programs and projects.
Article 57. Input and approval of annual estimates on the Treasury and Budget Management Information System (TABMIS)
1. For the central budget, based on the budget estimate approved by the National Assembly and assigned by the Prime Minister, ministries and ministerial-level agencies shall allocate estimates from ODA loans and non-refundable ODA accompanied with loans and concessional loans of foreign donors and input data to the TABMIS for examination and approval by the Ministry of Finance according to regulations on operation and exploitation of the TABMIS and relevant guiding documents.
2. For local budgets, based on budget estimates approved by provincial-level People’s Councils and assigned by provincial-level People’s Committees, provincial-level Departments of Finance shall certify plans on investment funds, current expenditure estimates funded by ODA loans and non-refundable ODA accompanied with loans and concessional loans of foreign donors as target transfer to local budgets; ODA loans and non-refundable ODA accompanied with loans and concessional loans of foreign donors on-lent by the Government to local budgets and input data to the TABMIS according to current regulations.
3. The input of data on estimates to the TABMIS must ensure codes assigned to the sources of ODA and concessional loans accounted as allocations or target transfer to local budgets and ODA on-lent to localities; for ODA and concessional loans as target transfer to local budgets, finance agencies inputting data to the TABMIS must ensure compliance with funding items and levels assigned by the Prime Minister.
Section 3
CONTROL OF SPENDING OF ODA LOANS AND CONCESSIONAL LOANS
Article 58. Principles of spending control
The control and payment of ODA loans and concessional loans (below referred to as spending control) must comply with current regulations applicable to state budget funding sources.
1. Spending control shall be applied to all expenditures of projects from the source of ODA loans or concessional loans, including those made under letters of credit or directly by foreign partners under authorization, ensuring that expenditures of programs and projects are made based on estimates and conform with concluded treaties on ODA loans or concessional loans and current regulations on financial management.
2. Spending control of ODA or concessional loan-funded programs or projects must comply with current regulations applicable to state budget funding sources within the scope of the estimated foreign and counterpart funds, annually approved on-lending plans, and the estimated funds amended or supplemented in the year (if any) and approved by a competent authority.
3. Spending control dossiers and requests for certification of valid expenditures from non-business funds and project owners’ requests for payment of investment funds must comply with the law on administrative procedures in the field of state treasury.
4. Time limit for spending control for advance expenditures and payments within a budgetary year:
a/ For advance expenditures under regulations: The spending control shall be implemented no later than December 31 of the plan year. Project owners shall send their dossiers and documents to spending control agencies before December 31 every year.
b/ Payments for completed work items shall be controlled and disbursed until January 31 of the following year.
5. For projects or component projects included in development investment funding plans which are wholly funded by state budget allocations or partially funded by on-lent loans, the spending control must comply with the law on management and payment of investment funds for investment projects funded by the state budget.
6. For project and project components funded by on-lent loans under the credit limit applicable to loan agreements signed in 2017 and earlier: Dossiers and procedures for spending control must comply with regulations of credit institution using on-lent loans and concluded treaties or agreements on ODA loans and concessional loans. Credit institutions on-lending loans from the sources of ODA loans or concessional loans shall take responsibility before law for the correctness and validity of credit loans and credit expenses stated in expenditure statements submitted to the Ministry of Finance when making and sending dossiers for foreign fund withdrawal.
7. Dossiers and procedures for spending control of projects or project components wholly funded by on-lent loans: On-lending agencies shall apply Clause 3 of this Article and on-lending contracts.
8. Based on a project owner’s dossier of request for payment for all forms of fund withdrawal, the spending control agency shall, based on the payment terms of the contract (number of payments, payment period, time of payment, and payment conditions) or approved estimates for cases of non-contractual payments and the value of each payment, conduct spending control and make payment to the project owner. The project owner shall take responsibility for the method of contractor selection, the accuracy and lawfulness of the work volume tested for acceptance and payment; norms, unit prices, and cost estimates for different types of jobs; work quality and compliance with current regulations. The project owner shall manage and use funds for proper purposes and subjects in a reasonable and efficient manner, and comply with the law on the financial management regime applicable to ODA loans and concessional loans.
Article 59. Spending control agencies
1. The State Treasury offices at all levels shall control payment documents of projects or project components wholly funded by state budget allocations; projects partially funded by state budget allocations and partially funded by on-lent loans, and projects funded by on-lent loans of provincial-level People’s Committees.
2. On-lending agencies authorized by the Ministry of Finance shall control payment dossiers of projects or project components wholly funded by on-lent loans.
3. For programs and projects other than those specified in Clauses 1 and 2 of this Article, the Ministry of Finance shall appoint appropriate spending control agencies, ensuring that a single expenditure will not be controlled by more than one agency.
Article 60. Spending control methods
1. Pre-spending control means that spending control agencies examine and certify the lawfulness and validity of expenditures before project owners withdraw funds to make payment to contractors or beneficiaries. Pre-spending control shall apply to expenditures other than those specified in Clause 2 of this Article.
2. Post-spending control means that spending control agencies examine and certify the lawfulness and validity of expenditures after project owners have withdrawn funds to make payment to contractors or beneficiaries. Post-spending control shall apply to the following cases:
a/ Payment from advance-payment accounts to contractors or suppliers, except advance-payment accounts held by the Ministry of Finance that are subject to pre-spending control;
b/ Transfer of advanced amounts from the advance-payment account to secondary accounts, for projects subject to multiple-level management;
c/ Expenditures made from secondary accounts for project management activities specified in approved cost estimates;
d/ Payments under letters of credit (L/C) for goods and equipment procurement, except the final payment.
3. Within 30 days from the date of withdrawal of funds for payment, project owners shall prepare adequate payment documents and send them to spending control agencies for certification as a basis for making subsequent payments. When necessary, project owners may reach agreement with contractors on application of the pre-spending control method to the expenditures specified in Clause 2 of this Article, then notify spending control agencies thereof for coordinated inspection.
Section 4
WITHDRAWAL AND ACCOUNTING MANAGEMENT OF ODA AND CONCESSIONAL LOANS
Article 61. Forms of withdrawal of ODA and concessional loans
Forms of withdrawal of ODA and concessional loans include:
1. Withdrawal of funds provided as budget support: ODA or concessional loans shall be disbursed to the state budget with regard to direct budget support amounts or result-based financing.
2. Program- or project-based withdrawal of funds, which may take one or more than one of the following forms: direct payment, payment by letter of credit, reimbursement, and advance-payment account.
Article 62. Time limits for processing requests for withdrawal of ODA or concessional loans
1. The time limit for processing a written request for fund withdrawal at the Ministry of Finance is 4 working days from the date of receipt of a complete dossier as prescribed. The time limit for processing an expenditure report is 7 working days from the date of receipt of a complete dossier as prescribed.
2. For ODA or concessional loan-funded programs and projects with their final disbursements completed in the year of project completion, their owners shall send to the Ministry of Finance a written request for fund withdrawal before December 1 (of the planning year) to ensure that the disbursement is carried out before January 31 of the subsequent year. In case the disbursement cannot be carried out before January 31 of the subsequent year due to a force majeure event, it is required to comply with Clause 2, Article 68 of the Law on Public Investment regarding the extension of time limits for implementation and disbursement of funds of medium-term and annual public investment plans.
Article 63. Order and procedures for withdrawal of ODA and concessional loans
1. Order and procedures for withdrawal of funds provided as budget supports:
a/ The managing agency or project owner shall assume the prime responsibility for, or coordinate with the Ministry of Finance and related agencies in, fulfilling commitments of the Vietnamese partner as agreed with the foreign lender in order to satisfy the withdrawal prerequisites specified in the concluded treaty or agreement on ODA or concessional loans;
b/ The managing agency or project owner shall assume the prime responsibility for, and coordinate with related agencies in, preparing a dossier and request for fund withdrawal and send them to the Ministry of Finance as required by the foreign donor or lender;
c/ For general budget support, the Ministry of Finance shall process the dossiers and requests for fund withdrawal, send them to the foreign lender and transfer the withdrawn funds to the state budget for use under the concluded treaty or agreement on ODA or concessional loans;
d/ For ODA or concessional loans provided as budget supports for a specific sector:
The managing agency of a program or project shall reach agreement with the Ministry of Finance on the time of withdrawal and ODA or concessional loan amount to be withdrawn, ensuring that the disbursed amount has been included in the annual financial plans of component projects.
ODA or concessional loans disbursed to the state budget shall be distributed to component projects for use strictly under the current regulations on state budget management.
2. Order and procedures for withdrawal of funds provided through result-based financing:
a/ The project owner or managing agency shall assume the prime responsibility for, and coordinate with related agencies in, fulfilling the disbursement indicators as agreed with the foreign lender as a basis for fund withdrawal. The project owner may receive an advance payment under regulations of the foreign lender to perform the agreed tasks so as to fulfill the commitments associated with the disbursement indicators;
b/ The project owner or managing agency shall assume the prime responsibility for, or coordinate with related agencies in, preparing reports and documents or providing documents proving the fulfillment of the disbursement criteria stated in the concluded treaty or agreement on ODA or concessional loans and send them to the foreign lender. The project owner shall prepare a dossier and request for fund withdrawal and send them to the Ministry of Finance as required by the foreign lender;
c/ The disbursed ODA or concessional loan amount shall be transferred to the account of the program- or project-implementing unit which is opened at the State Treasury as agreed with the donor. The spending of the disbursed amount must comply with the current regulations on state budget management. At the end of a budgetary year, the balance of foreign fund estimates shall be handled under current regulations on state budget management; the cash balance on the advance-payment account may be further used under regulations for the program’s or project’s activities in the subsequent budgetary year;
d/ When conducting withdrawal of funds provided through result-based financing, the project owner shall apply the exchange rate between the Special Drawing Rights and Vietnam dong announced on the donor’s website at the time of making a request for fund withdrawal.
3. Order and procedures for withdrawal of ODA or concessional loans provided through project financing:
a/ Forms of fund withdrawal:
Direct payment, which means that money shall be directly paid to contractors and suppliers of the project.
Payment by letter of credit (L/C), which means payment by letter of credit issued by a bank as requested by a project owner that commits to pay contractors or suppliers a certain amount of money if the latter can produce valid documents as prescribed in the L/C.
Fund reimbursement, which means a form whereby a foreign donor makes payment to reimburse valid expenses already paid by the project owner for the project.
Advance-payment account, which means a form whereby a foreign donor transfers an advance amount to the project owner’s account opened exclusively for the project at the serving bank for the project owner to pay regular and valid expenses of the project in order to reduce the frequency of fund withdrawals;
b/ After the foreign donor issues a notice stating that the Vietnamese partner has fulfilled the prerequisites for fund withdrawal under the treaty or agreement on ODA or concessional loans, the project owner or project management unit shall make a dossier of request for fund withdrawal according to the form issued by the foreign lender applicable to each form of fund withdrawal, and send it to the Ministry of Finance;
In case the foreign lender requests additional documents or only accepts part of the request for fund withdrawal, the Ministry of Finance or foreign lender shall send a notice to the project owner for coordination in promptly processing reasonable requests of the foreign lender;
c/ Dossiers of request for fund withdrawal to be sent to the Ministry of Finance: For each fund withdrawal, the project owner or an authorized unit shall prepare 1 set of dossier of request for fund withdrawal appropriate to each form of fund withdrawal and send it to the Ministry of Finance. Form of dossier of request for fund withdrawal is provided in Appendix VII to this Decree.
d/ Fund withdrawal by electronic means must comply with the Ministry of Finance’s guidance after reaching agreement with the donor.
Article 64. Principles of management of the accounting of ODA and concessional loans into the state budget
1. ODA and concessional loans used for offsetting the state budget deficit shall be fully and accurately accounted into the state budget.
2. For programs and projects applying the mechanism of whole allocation or pro rata partial allocation of funds with controlled ratio at the State Treasury, State Treasury office where transactions are conducted shall account into the state budget ODA and concessional loans provided under the allocation mechanism and those used for pro rata on-lending (for provincial-level People’s Committees).
3. The accounting of state budget funds shall be carried out on the basis of documents on disbursement of ODA or concessional loans handed over to fund users as notified by the foreign donor. For payments from the advance-payment account, project owners shall make a written request for accounting of ODA or concessional loans and send it to the State Treasury for certification at the same time with carrying out spending control procedures. For other forms of fund withdrawal, project owners shall make a written request for accounting of ODA or concessional loans and send it to the State Treasury for certification within 3 working days after receiving disbursement documents from the foreign donor, and to the Ministry of Finance for monitoring.
Article 65. Accounting of direct budget support
Based on a money receipt or credit note issued by the serving bank, the State Treasury shall account ODA loans or concessional loans as debit and account ODA or concessional loans as state budget revenue under regulations; in case a foreign-currency amount is transferred to the Centralized Foreign-Currency Fund, the State Treasury shall account foreign-currency revenues or loans of the state budget in accordance with law.
Article 66. Accounting of ODA or concessional loans at the State Treasury
The State Treasury shall account ODA or concessional loans as revenues and expenditures for projects that are allocated from the state budget and funds used for on-lending to programs and projects with controlled expenditures in the State Treasury system, specifically as follows:
1. To account allocated ODA, target ODA for localities, and ODA loans used for on-lending to localities according to codes of funding sources, and conduct detailed accounting of non-refundable ODA, ODA loans, and concessional loans.
2. To account advance amounts as advance-payment expenditures; to account recovered advance-payments as decrease in advance-payment expenditures.
3. To account payments for projects’ completed work volumes as revenues and expenditures as actually arising and conduct annual account finalization of budget funds.
4. For expenditures under annual plans controlled and transferred by the State Treasury to contractors and suppliers before January 31 of the subsequent year, the State Treasury shall account revenues and expenditures into the budgetary year. For expenditures controlled by the State Treasury and transferred to contractors and suppliers after January 31 of the subsequent year, project owners shall include them in the subsequent year’s plan for accounting revenues and expenditures.
5. Dossiers for accounting of revenues and expenditures must comply with the Government’s regulations on administrative procedures applicable to the State Treasury system. Project owners shall send dossiers to the State Treasury offices where transactions are conducted to certify the accounting before February 1 of the subsequent year.
Article 67. Accounting of ODA loans or concessional loans used for on-lending at the Ministry of Finance
1. For the Government’s ODA or concessional loans which are used by the Ministry of Finance for on-lending; and loans which the Ministry of Finance authorizes financial and credit institutions being on-lending agencies to on-lend to investment programs and projects: Based on the donor’s disbursement notice and the project owner’s disbursement statement, the Ministry of Finance shall account debt liabilities under regulations guiding accounting regimes applicable to loans and debt repayments of the Government and local administrations; and make statistics of on-lent loans and government guarantee amounts for monitoring.
2. For programs and projects for which the Ministry of Finance makes state budget accounting, based on the donor’s disbursement notice, the Ministry of Finance shall, when making any adjustment, prepare an accounting adjustment statements and send sheets of this statement to on-lending agencies and project owners for making adjustments of corresponding accounting figures in their reports on accounting and account finalization of foreign funds.
Article 68. Exchange rates for accounting
1. For money amounts directly disbursed or paid by the donor by L/C in foreign currency to contractors and suppliers, the accounting shall be carried out in Vietnam dong applying the early morning’s transfer bid rate of the serving bank or the bank where the State Treasury opens its account, or the early morning’s transfer bid rate of the Joint Stock Commercial Bank for Foreign Trade of Vietnam in case no serving bank opens on the day the donor makes a debit to the Government.
2. For money amounts directly paid by the donor in Vietnam dong, to apply the donor’s actual exchange rate between the disbursement currency and the payment currency.
3. In case payments are made from the advance-payment accounts, for payments made in Vietnam dong and in foreign currency, to apply the equivalent transfer bid rate of the serving bank or the bank where the State Treasury opens its account at the time of making payments.
4. In case of bank transfer with advance amounts of revenues and expenditures transformed into real payments when making payments for the projects’ completed work volumes, to apply the early morning’s transfer bid rate of the serving bank or the bank where the State Treasury opens its account at the time of accounting of advance amounts as revenues and expenditures for accounting of recovered advance amounts.
5. Project owners shall determine and apply exchange rates when requesting the State Treasury offices where their transactions are conducted to control expenditures or requesting the accounting of foreign-currency expenditures as revenues and expenditures under regulations.
6. Project owners shall re-evaluate exchange rates of amounts of foreign currency origin of their project activities at the end of the accounting period before making financial statements or when so requested by the donors, and amounts of foreign currency origin subject to exchange rate re-evaluation according to their applicable accounting regimes.
Article 69. Time limits for accounting of state budget funds
1. Expenditures from ODA or concessional loans will have their control certified and be disbursed until January 31 of the subsequent year; and shall be accounted within 5 working days at the State Treasury offices where transactions are conducted.
2. The State Treasury shall complete the accounting of expenditures from ODA and concessional loans that arise in a budgetary year within 30 days counting from January 31.
3. The order and procedures for management of the accounting of ODA and concessional loans into the state budget must comply with the Government’s regulations on administrative procedures applicable to the State Treasury system.
Section 5
REPORTING, ACCOUNTING, AUDIT, ACCOUNT FINALIZATION, AND INSPECTION
Article 70. Online reporting of information about ODA loans or concessional loans
1. Managing agencies shall post up information about program and project proposals, investment policy proposal reports or prefeasibility study reports, project documents, and feasibility study reports approved by competent authorities on the national information system and database on public investment, and the Ministry of Finance’s website. The time limit for reporting is 10 days after receiving a written decision or approval of the competent authority.
2. Project owners or project management units shall send their online reports on overall plans on program or project implementation, expected annual disbursement demands, annually assigned funding plans and their adjustment or supplementation plans (if any), and the actual state of disbursement of foreign ODA or concessional loans to the national information system and database on public investment, and the Ministry of Finance’s website.
a/ For overall plans on program and project implementation and their supplementation and adjustment plans (if any), project owners or project management units shall make reports within 10 days after receiving documents approved by managing agencies;
b/ For expected annual disbursement demands, and annual assigned funding plans and their supplementation and adjustment plans (if any), project owners or project management units shall make reports within 10 days after receiving documents approved by managing agencies;
c/ For actual state of loan disbursement, project owners or project owner management units shall report on actual state of disbursement of ODA or concessional loans in a month within 5 days from the end of the month on the national information system and database on public investment, and the Ministry of Finance’s website.
3. The Ministry of Planning and Investment and Ministry of Finance shall issue forms of online reports prescribed in this Article.
Article 71. Reporting on disbursement and accounting of state budget funds
1. Within 15 days from the end of a quarter, the project owner shall control expenditures at the State Treasury office where transactions are conducted, make a report on disbursement of ODA or concessional loans in the quarter and send it to the managing agency and the same-level finance agency, together with statements of accounting state budget revenues and expenditures certified by such State Treasury office.
Enterprises and public non-business units that receive on-lent loans shall comply with disbursement reporting regime under the Government’s Decree on on-lending.
2. Within 30 days after the ODA or concessional loan is closed, the project owner shall submit a report on termination of withdrawal of ODA or concessional loan to the Ministry of Finance and the managing agency, which serves as a basis for the account finalization for the project.
3. The project owner shall prepare and send financial statements to the foreign donor according to the concluded treaty or agreement on ODA or concessional loans, feasibility study report, and project documents (if any), and concurrently to the managing agency and the same-level finance agency for monitoring and timely direction of the financial management of the project.
4. Annually, within 60 days from the end of the reporting period, to serve the comparison of accounting figures and actual disbursements, the managing agency shall prepare, sum up, and send to the Ministry of Finance and State Treasury a report on disbursement, and accounting of ODA or concessional loans as state budget revenues and expenditures.
5. The Ministry of Finance shall issue forms of reports on disbursement.
Article 72. Accounting, audit, and account finalization regimes
The accounting, audit, and account finalization for ODA or concessional loan-funded programs and projects must comply with current regulations applicable to budget state funds, guidance of the Ministry of Finance and specific requirements for ODA or concessional loan sources.
Article 73. Asset management
Public assets generated from foreign ODA or concessional loan sources must comply with the law on management and use of public assets.
Section 6
OTHER PROVISIONS ON FINANCIAL MANAGEMENT
Article 74. Specific contents for ODA or concessional loan-funded programs and projects
1. The level of advance payments for contracts, recovery of advance payments and payment retention ratio awaiting warranty must comply with the contract between the project owner and the contractor in conformity with regulations on contracts (the project owner may reach agreement with the contractor to provide an advance-payment guarantee for contracts with the contract advance value not exceeding VND 1 billion). The project owner shall manage and recover the fund amount already advanced to the contractor. If unable to recover it, the project owner shall itself arrange funding sources for refund to the donor.
2. For each request for confirmation and payment of the work warranty amount for transfer to the contractor, the project owner shall make a table to monitor the progress of transferring warranty amount and accrual of the amount to be transferred, and send it to the State Treasury for collation and confirmation of the warranty amount under the contract for the project owner to return it to the contractor. The time of paying the work warranty amount is the time of calculating the annual fund plan assigned to the project.
3. The final payment of independent audit costs shall be made with the use of counterpart funds.
Article 75. Financial management of projects with regular expenditures stated in concluded treaties or loan agreements
1. For each program or project, its owner shall make and send to the Ministry of Finance a plan on disbursement and capital withdrawal in the planning year and 2 subsequent years, specifying ODA loans, concessional loans, and non-refundable ODA for regular expenditures and counterpart funds.
2. The Ministry of Finance shall include plans on ODA loans and non-refundable ODA together with loans on regular expenditures allocated to ministries, ministerial-level agencies, central bodies and provincial-level People’s Committees in annual state budget estimates.
3. After regular expenditures are approved by competent authorities, related agencies shall input plans on regular expenditures to the Treasury and Budget Management Information System (TABMIS) in accordance with current regulations.
4. Expenses for projects or activities covered by regular expenditures estimates shall be controlled in accordance with the Law on the State Budget and guiding documents.
5. Projects using regular expenditures shall apply the non-business administrative accounting regime. For projects using both investment expenditures and regular expenditures, their owners shall report an appropriate accounting regime to managing agencies for decision on its application.
6. Within 6 months from the date of completing disbursement, for ODA or concessional loan-funded projects allocated with regular expenditures, project management units shall make a account finalization report upon project completion, specifying each ODA source (non-refundable ODA, ODA loan, concessional loan, counterpart fund), on the basis of summing up all results of account finalization data of the years in the project implementation period for which competent agencies have notified approval of final accounts to managing agencies. Managing agencies shall sum up and send information thereon to the Ministry of Finance.
7. The project owner (the state budget user) shall formulate and send the annual account finalization report or the annual financial statement to the managing agency (the direct superior accounting unit), or send it to the finance agency (in case the superior accounting unit does not exist) in accordance with the law guiding non-business administrative accounting regime. The approval, appraisal and notification of annual final accounts must comply with the Ministry of Finance’s regulations on approval, appraisal, notification and summarization of annual final accounts.
Chapter VII
FINANCIAL MANAGEMENT OF NON-REFUNDABLE ODA
Article 76. Principles of financial management of non-refundable ODA
1. For non-refundable ODA amounts belonging to the state budget revenues, their estimation, spending control, accounting, revenue and expenditure recording, and account finalization must comply with the law on the state budget and this Decree’s provisions on financial management. For arising amounts not yet included in estimates allocated and assigned under plans by competent authorities, project owners shall make additional estimates in accordance with the law on the state budget and relevant laws.
2. For non-refundable ODA amounts directly managed and implemented by donors: Managing agencies shall manage them in accordance with the concluded treaties or agreements on non-refundable ODA, program or project documents or feasibility study reports; perform functions and duties of managing agencies; comply with regulations on accounting and taxation and relevant regulations. If a donor hands over the ownership of assets and equipment of a program or project to the project owner, the latter shall establish ownership over the assets in accordance with current regulations.
3. For non-refundable ODA amounts provided under blending mechanism: To comply with the provisions on financial management of ODA loans and concessional loans in Chapter VI of this Decree.
4. For non-refundable ODA amounts used for the purpose of emergency aid to provide relief and remediate disaster consequences: To comply with the Government’s regulations on receipt, management and use of emergency international aid for relief and remediation of disaster consequences.
5. In case the financial management provisions in this Chapter differ from the concluded treaties on non-refundable ODA, the latter will prevail.
Article 77. Opening of payment accounts for non-refundable ODA -funded programs and projects
1. Counterpart fund account: The project owner shall open an account at the State Treasury office where transactions are conducted to control and pay counterpart funds of projects.
2. Non-refundable ODA account: The project owner shall open an account to receive non-refundable ODA at the State Treasury office where transactions are conducted or at the serving bank.
a/ The order and procedures for opening of accounts at the State Treasury offices and the management and use of accounts must comply with current regulations;
b/ The State Treasury shall organize the control of and payment for projects with the use of ODA source.
Article 78. Formulation of financial plans on non-refundable ODA
1. Based on the decision on approval of project and non-project activity documents or the program and project investment decision; and treaty or agreement on non-refundable ODA (if any), the project owner shall make 3-year and annual plans on revenues and expenditures of non-refundable ODA in accordance with the Law on the State Budget and relevant laws, and send them to the managing agency for summarization.
2. The annual estimation of revenues and expenditures of non-refundable ODA shall be made in detail for each donor, program, project or non-project activity, and treaty or agreement on non-refundable ODA.
3. The formulation, summarization, submission, approval, assignment and adjustment of plans on non-refundable ODA must:
a/ Comply with the law on public investment, for non-refundable ODA used as public investment expenditures;
b/ Comply with the law on the state budget, for non-refundable ODA used as regular expenditures.
4. On the basis of the annual funding limit assigned by competent agencies, the managing agency shall allocate funds in detail to each program, project or non-project activity and notify the allocation plan to the Ministry of Finance and the Ministry of Planning and Investment.
5. The managing agency shall direct and organize the implementation of estimates and report the implementation of the plan on revenues and expenditures of non-refundable ODA in accordance with current regulations.
Article 79. Spending control, disbursement, accounting and revenue and expenditure recording of non-refundable ODA in cash
1. The project owner shall control spending at the State Treasury in accordance with regulations on state budget management. The order and procedures for spending control, accounting and revenue and expenditure recording of non-refundable ODA must comply with the law on administrative procedures applicable to the State Treasury system.
2. A spending control dossier sent to the State Treasury for the first time must comprise:
a/ A competent authority’s decision on assignment or additional assignment of estimates;
b/ A true copy of the original decision on approval of program or project documents or of the program or project investment decision, and program or project documents or approved feasibility study report;
c/ A true copy of the original treaty or agreement on non-refundable ODA or exchange note or notification letter of non-refundable ODA;
d/ A contract on procurement of related goods and services (if any). A foreign-language contract shall be enclosed with a Vietnamese translation bearing the project owner’s signature and seal. The project owner shall take responsibility before law for the correctness and accuracy of the Vietnamese translation;
dd/ Written request for certification of valid expenses of non-business funds or the project owner’s written request for payment of investment fund in accordance with the Government’s regulations on administrative procedures applicable to State Treasury system.
3. The dossiers for each payment sent to the State Treasury must comply with regulations on state budget expenditures.
4. Disbursement of non-refundable ODA in cash for programs or projects: Based on results of spending control, and at the project owner’s request, the concerned State Treasury office or serving bank shall conduct disbursement for projects in accordance with law; monthly notify the Ministry of Finance of the amount of disbursed non-refundable ODA of each account holder for each program or project.
5. Accounting of revenue and expenditure recording for projects:
a/ Every month or when a revenue or expenditures arises, on the basis of results of spending control and the project owner’s written request for recording revenues and expenditures of non-refundable ODA, the State Treasury office shall concurrently record revenues and expenditures in accordance with law. In case the project owner opens an account for ODA funding source at the serving bank, it shall enclose the above-mention dossier with a statement of documents on payment from such account;
b/ The State Treasury office shall account into the state budget based on aid expenditure contents in the state budget index in accordance with law. Advance payments made under regulations shall be accounted as expenditure for advance payments. Recovered amounts of advance payments shall be accounted as decrease in advance payments. Payments for completed work volumes shall be accounted based on actual revenues and expenditures and annual account finalization of state budget funds shall be conducted;
c/ The time of accounting must comply with current regulations applicable to state budget funding sources.
6. The payment of advance amounts and control of expenditures from non-refundable ODA in cash must comply with current regulations applicable to state budget funding sources.
7. Deposit interests on non-refundable ODA generated on deposit accounts shall be separately accounted and used to pay banking service charges under regulations. Banking service charges constitute an expenditure of a project.
8. Upon completion of spending activities on a non-refundable ODA account at the serving bank, if there is no commitment in treaties or agreements on non-refundable ODA on the use of deposit interests from aid, the project owner shall remit the balance of interests on the deposit account to the state budget in accordance with current regulations. The use of the interest balance must comply with the laws on public investment and the state budget.
Article 80. Receipt of non-refundable ODA in goods or services
1. The receipt of goods as aid imported from foreign countries must comply with the Customs Law, Law on Import Duty and Export Duty and Law on Tax Administration. A dossier sent to customs offices for customs clearance for imported goods as aid must comprise:
a/ The treaty or agreement on non-refundable ODA or a written exchange on commitment and receipt of non-refundable ODA: 1 true copy of the original certified by a competent agency in accordance with relevant laws;
b/ The decision on approval of project or non-project activity documents or program investment decision and project documents or approved feasibility study report: 1 true copy of the original certified by a competent agency in accordance with relevant laws;
c/ Other documents as prescribed by regulations on customs procedures.
2. A dossier for tax refund or tax exemption for goods and services domestically purchased with the use of non-refundable ODA sent to tax offices must comprise:
a/ The treaty or agreement on non-refundable ODA or written exchange on commitment and receipt of non-refundable ODA: 1 photocopy;
b/ The decision on approval of project and non-project activity documents or the program investment decision and project documents or approved feasibility study report: 1 photocopy;
c/ A request for certification of valid non-business expenses and the project owner’s written request for payment of investment funds in accordance with the Government’s regulations on administrative procedures applicable to the State Treasury system;
d/ Other papers related to tax refund or tax exemption as prescribed by law.
3. Taxes, charges and fees must comply with current regulations on taxes, charges and fees.
4. After goods delivery and receipt, the owner of the project or non-project activity shall make a dossier and send it to the State Treasury office for recording state budget revenues and expenditures in accordance with law. A dossier for recording revenues and expenditures must comprise:
a/ The treaty or agreement on non-refundable ODA or written exchange on commitment and receipt of non-refundable ODA: 1 true copy of the original certified by a competent agency as prescribed by relevant laws;
b/ The decision on approval of project documents or the program investment decision and project documents or the approved feasibility study report: 1 true copy of the original certified by a competent agency as prescribed by relevant laws;
c/ A written request for recording of revenues and expenditures in accordance with the Government’s regulations on administrative procedures applicable to the State Treasury system;
d/ For imported goods: Contract, bill of lading or other equivalent transport documents, commercial invoice or imported goods declaration if there is no commercial invoice: 1 true copy of the original certified by a competent agency in accordance with relevant laws. For domestically purchased goods: purchase and sale contract, value-added tax invoice, and goods handover minutes: 1 true copy of the original certified by a competent agency as prescribed by relevant laws;
dd/ A competent authority’s decision on assignment of estimates of non-refundable ODA or adjusted estimates in a year.
5. The State Treasury office shall record as revenues and expenditures prices of imported goods as prices exclusive of taxes, fees and charges in accordance with law.
Chapter VIII
TASKS, POWERS AND RESPONSIBILITIES OF AGENCIES AND ORGANIZATIONS IN MANAGING AND USING ODA AND CONCESSIONAL LOANS
Article 81. Tasks and powers of the Ministry of Planning and Investment
1. To assume the prime responsibility for drafting strategies and policies on development cooperation with foreign donors; and orientations on attraction, management and use of ODA and concessional loans of foreign donors.
2. To assume the prime responsibility for drafting and submitting for promulgation or promulgating legal documents on ODA and concessional loan management and use according to its competence.
3. To assume the prime responsibility for determining demand for development investment funds from ODA and concessional loans; to summarize and submit to the Prime Minister proposals on ODA or concessional loan-funded programs and projects.
4. To assume the prime responsibility for, and coordinate with related agencies in, appraising funding sources and ability of capital balancing for ODA or concessional loan-funded investment projects.
5. To assume the prime responsibility for, and coordinate with related agencies in, proposing to the Government conclusion of framework treaties, specific treaties and framework agreements on non-refundable ODA not associated with loans specified in Clause 4, Article 29 of this Decree; to propose to the Prime Minister the conclusion of framework agreements and specific agreements on non-refundable ODA not associated with loans specified in Clause 3, Article 32 of this Decree.
6. To summarize and submit to the Prime Minister for consideration and decision investment policy on ODA or concessional loan-funded programs and projects under the deciding competence of the Prime Minister, excluding group-A projects; to send to foreign donors official notices of approved program or project proposals, investment policy decisions, and requests for aid consideration.
7. To summarize and submit to the Prime Minister for consideration and decision implementation policy of technical assistance projects or non-project activities using non-refundable ODA loans under the deciding competence of the Prime Minister; to send to foreign donors official notices of approved projects or non-projects and requests for aid consideration after their implementation policy and documents of technical assistance projects or non-project activities are decided by competent authorities.
8. To coordinate with the Ministry of Finance in formulating framework and specific treaties and agreements on ODA and concessional loans.
9. To coordinate with the State Bank of Vietnam in formulating treaties on non-refundable ODA not associated with loans with international financial and monetary institutions.
10. To coordinate with the Ministry of Finance and related agencies in identifying the grant element, assessing impacts of new loans on public debt safety indicators and domestic financial mechanism applicable to programs and projects in accordance with law.
11. To supervise, evaluate, examine and inspect ODA or concessional loan-funded programs and projects in accordance with the law on public investment supervision and evaluation and ODA and concessional loan management and use.
12. To act as the focal point in solving difficulties and problems during the program and project implementation, and matters involving many ministries and sectors in order to ensure implementation progress and promote disbursement of ODA and concessional loans; to propose to the Prime Minister for decision measures to handle matters related to ODA and concessional loans under the competence of the Prime Minister.
In cases of necessity, to assume the prime responsibility for forming inter-sectoral teams to directly work with managing agencies, project owners, project management units and foreign donors in order to consider, assess and timely solve difficulties under its competence.
13. To submit to the Prime Minister biannual and annual reports and irregular reports on ODA and concessional loan mobilization, management and use; to propose solutions to difficulties arising in the course of program and project implementation.
Article 82. Tasks and powers of the Ministry of Finance
1. To coordinate with the Ministry of Planning and Investment and related agencies in formulating strategies and policies on development cooperation with foreign donors.
2. To guide the preparation of contents concerning conditions on use of funds, domestic financial mechanism and financial management of programs and projects; and financial appraisal of projects funded by on-lent loans.
3. To assume the prime responsibility for identifying the grant element, assessing impacts of ODA or concessional loans on public debt safety indicators and determining domestic financial mechanism applicable to ODA or concessional loan-funded programs and projects.
4. To assume the prime responsibility for, and coordinate with related agencies in, proposing to the Government the conclusion of framework and specific treaties on ODA loans, concessional loans and non-refundable ODA for programs and projects specified in Clause 2, Article 29 of this Decree; to propose to the Prime Minister the conclusion of framework and specific agreements on ODA loans, concessional loans and non-refundable ODA for programs and projects specified in Clause 2, Article 32 of this Decree.
5. To coordinate with the Ministry of Planning and Investment in appraising funding sources and ability of capital balancing of ODA or concessional loan-funded investment projects.
6. To officially represent “borrowers” before foreign donors with regard to ODA or concessional loans in the name of the State or the Government.
7. To summarize and submit to the Prime Minister for decision the cancellation of surplus funds; and send to donors official notices of cancellation as specified in Clause 5, Article 47 of this Decree.
8. Regarding financial management of programs and projects:
a/ To assume the prime responsibility for, and coordinate with related agencies in, guiding financial management of programs and projects;
b/ To provide guidance on financial management forms and reports of programs and projects in accordance with current laws and treaties and agreements on ODA and concessional loans concluded with foreign donors;
c/ To allocate funds from the state budget and other sources for repayment of ODA loans and concessional loans when they become due;
d/ To monitor and examine financial management of use of ODA and concessional loans and organize accounting of the state budget related to these funding sources;
dd/ To report on disbursement, fund withdrawal and debt payment with regard to ODA and concessional loans in accordance with the laws on public investment and public debt management and current regulations;
e/ To assume the prime responsibility for, and coordinate with the Ministry of Planning and Investment in, adequately and promptly arranging counterpart funds from non-business administrative sources in order to prepare and implement programs or projects eligible for central budget allocations in annual funding plans;
g/ To organize on-lending and recovery of on-lent funds of programs and projects eligible for on-lending from the state budget.
Article 83. Tasks and powers of the State Bank of Vietnam
1. To coordinate with the Ministry of Planning and Investment and related agencies in formulating strategies and policies on development cooperation with foreign donors and master plans and plans on ODA and concessional loan attraction, coordination and management and use; to analyze and assess use efficiency of these funding sources.
2. To coordinate with the Ministry of Planning and Investment and Ministry of Finance in appraising ODA, concessional loans and counterpart funds and ability to balance these funding sources (for funds from the World Bank, Asian Development Bank, International Monetary Fund and other international financial and monetary institutions and international banks for which the State Bank of Vietnam acts as a representative).
3. To assume the prime responsibility for, and coordinate with related agencies in, proposing to competent authorities the conclusion of treaties on non-refundable ODA not associated with loans with international financial and monetary institutions specified in Clause 3, Article 29 of this Decree.
4. To coordinate with the Ministry of Finance in proposing to competent authorities the conclusion of treaties and framework and specific agreements on ODA and concessional loans with international financial and monetary institutions and banks for which the State Bank of Vietnam acts as a representative.
5. To give opinions on banks eligible for acting as serving banks for ODA or concessional loan-funded programs and projects.
Article 84. Tasks and powers of the Ministry of Justice
1. To appraise draft treaties and agreements on ODA and concessional loans in accordance with law.
2. To participate in negotiations and contribute opinions on contents of draft treaties and agreements on ODA and concessional loans.
3. To contribute opinions on investment policy proposal reports of programs and projects on legal cooperation with foreign donors.
4. To appraise documents of technical assistance projects and non-project activities on legal cooperation with foreign donors which fall under the approving competence of the Prime Minister in accordance with the law on management of international legal cooperation; to give opinions on programs, projects and non-project activities on legal cooperation under the approving competence of managing agencies.
5. To contribute opinions on treaties and agreements on ODA and concessional loans in accordance with law.
Article 85. Tasks and powers of the Ministry of Foreign Affairs
1. To coordinate with related agencies in elaborating and implementing guidelines and orientations for ODA and concessional loan mobilization as well as counterpart policies based on general external relation policies; to participate in ODA and concessional loan mobilization.
2. To coordinate with the Ministry of Planning and Investment and related agencies and direct representative missions of the Socialist Republic of Vietnam in foreign countries or at international organizations in mobilizing ODA and concessional loans in line with guidelines and orientations on mobilization as well as master plans and plans on attraction, coordination, management and use of ODA and concessional loans in each period.
3. To participate in negotiations and contribute opinions on draft treaties and agreements on ODA and concessional loans; to give opinions on proposals on conclusion of treaties and agreements on ODA and concessional loans.
4. To carry out external procedures for conclusion and implementation of treaties; to organize preservation, copying and announcement of treaties on ODA and concessional loans in accordance with the Law on Treaties.
5. To grant authority for conclusion of agreements on ODA and concessional loans.
6. To participate in program and project evaluation at the request of competent agencies.
7. To monitor and examine the performance of procedures for conclusion and implementation of treaties and agreements on ODA and concessional loans in accordance with law.
Article 86. Tasks and powers of other ministries, ministerial-level agencies and government-attached agencies
1. To coordinate with the Ministry of Planning and Investment and related agencies in formulating strategies, master plans and plans on ODA and concessional loan attraction, coordination, management and use; to formulate policies and methods to coordinate, and improve use efficiency of, ODA and concessional loans in the fields under their respective management.
2. To formulate program and project proposals, investment policy proposal reports or prefeasibility study reports, and documents of projects or non-project activities, and submit them to competent authorities for decision or approval according to their competence.
3. To coordinate with proposing agencies in proposing to competent authorities the conclusion of specific treaties or agreements on ODA or concessional loans for programs and projects under their management in accordance with Clauses 2, 3 and 4, Article 29; and Clauses 2 and 3, Article 32, of this Decree; and to implement such treaties or agreements in accordance with law.
4. To propose to the Government the conclusion of specific treaties on non-refundable ODA specified in Clause 1, Article 29 of this Decree and organize the implementation of such treaties in accordance with the law on treaties; to propose to the Prime Minister the conclusion of agreements on non-refundable ODA specified in Clause 1, Article 32 of this Decree, and organize the implementation of such agreements in accordance with law.
5. To perform state management of ODA and concessional loans in sectors or fields under their respective management in accordance with law.
6. To ensure publicity and transparency and take responsibility for use efficiency of ODA and concessional loans for programs and projects they directly manage and implement.
Article 87. Tasks and powers of provincial-level People’s Committees
1. To coordinate with the Ministry of Planning and Investment, other ministries, sectors and related agencies in formulating strategies, master plans and plans on ODA and concessional loan attraction, coordination, management and use; to develop policies and measures to coordinate and improve use efficiency of ODA and concessional loans in their respective localities.
2. To formulate program and project proposals, investment policy proposal reports or pre-feasibility study reports, and project or non-project activity documents and submit them to competent authorities for decision or approval according to their competence.
3. To coordinate with proposing agencies in proposing to competent authorities the conclusion of specific treaties or agreements on ODA or concessional loans for programs and projects under their management in accordance with Clauses 2, 3 and 4, Article 29; and Clauses 2 and 3, Article 32, of this Decree; and to implement such treaties or agreements in accordance with law.
4. To coordinate with the Ministry of Planning and Investment in submitting to the Prime Minister the conclusion of specific treaties on non-refundable ODA specified in Clause 4, Article 29 of this Decree and organize the implementation of such treaties in accordance with the law on treaties; and the conclusion of agreements on non-refundable ODA specified in Clause 3, Article 32 of this Decree, and organize the implementation of such agreements in accordance with law.
5. To direct and organize land recovery, compensation and ground clearance for programs and projects in their respective localities in accordance with law and treaties on ODA and concessional loans to which the Socialist Republic of Vietnam is a contracting party.
6. To perform state management of ODA and concessional loans in their respective localities in accordance with law.
7. To ensure publicity and transparency and take responsibility for use efficiency of ODA and concessional loans for programs and projects they directly manage and implement.
8. To arrange funds to fully pay debts owed to the central budget on schedule in order to pay foreign debts for programs and projects applying the mechanism of on-lending of ODA and concessional loans from the central budget to provincial-level budgets.
Chapter IX
IMPLEMENTATION PROVISIONS
Article 88. Organization of implementation
1. The Ministry of Planning and Investment shall promulgate a circular guiding the implementation of this Decree.
2. The Ministry of Finance shall promulgate according to its competence a circular guiding the implementation of this Decree regarding financial management of ODA and concessional loan-funded programs and projects.
Article 89. Transitional handling
1. For ODA or concessional loan-funded programs and projects on the lists approved by competent authorities, to comply with regulations on adjustment of investment policy under this Decree in cases amendments and adjustments are required in the course of implementation.
2. Programs and projects of which proposals or investment policies have been approved before the effective date of this Decree may be further implemented in accordance with this Decree.
3. Technical assistance programs and projects using non-refundable ODA for preparation of investment projects and technical assistance projects or non-project activities using independent non-refundable ODA, of which program and project documents are approved by competent authorities before the effective date of this Decree, may be further implemented in accordance with this Decree.
4. For technical assistance projects or non-project activities using non-refundable ODA of which implementation policies and project or non-project activity documents have approved before the effective date of this Decree, if adjustments are made in the course of implementation but adjusted contents do not lead to change of technical assistance projects or non-project activities into those falling under the competence to approve implementation policy specified in Clause 1, Article 23 of this Decree, managing agencies shall carry out order and procedures to adjust project and non-project activity documents in accordance with Clause 2, Article 27 of this Decree. In case adjusted contents make technical assistance project or non-project activities fall under the competence to approve implementation policy specified in Clause 1, Article 23 of this Decree, managing agencies shall carry out order and procedures for approval and adjustment in accordance with Articles 25, 26 and 27 of this Decree.
5. Adjustment and supplementation of agreements on ODA and concessional loans concluded on behalf of the State by competent authorities must comply with processes and procedures for adjustment and supplementation of agreements on ODA and concessional loans specified in this Decree.
6. Managing agencies of ongoing umbrella projects may not coordinate, allocate and assign funding plans to component projects.
Article 90. Effect
1. This Decree takes effect on May 25, 2020, and replaces the Government’s Decree No. 16/2016/ND-CP of March 16, 2016, and Decree No. 132/2018/ND-CP of October 1, 2018, on management and use of ODA and concessional loans of foreign donors.
2. Ministers, heads of ministerial-level agencies, heads of government-attached agencies, chairpersons of provincial-level People’s Committees, and related organizations and individuals shall implement this Decree.-
On behalf of the Government
Prime Minister
NGUYEN XUAN PHUC
Vietnamese
Decree 56/2020/NĐ-CP DOC (Word)
Decree 56/2020/NĐ-CP PDF (Original)
