Thông tư 12/2016/TT-BKHDT

CIRCULAR

GUIDELINES FOR DECREE NO. 16/2016/ND-CP ON MANAGEMENT AND USE OF OFFICIAL DEVELOPMENT ASSISTANCE AND CONCESSIONAL LOANS GRANTED BY FOREIGN SPONSORS

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

Pursuant to the Government's Decree No. 16/2016/ND-CP dated March 16, 2016 on management and use of official development assistance (ODA) and concessional loans granted by foreign sponsors (hereinafter referred to as “Decree No. 16/2016/ND-CP");

Pursuant to the Government's Decree No. 136/2015/ND-CP dated December 31, 2015 on guidelines for the Law on Public Investment;

Pursuant to the Government's Decree No. 77/2015/ND-CP dated September 10, 2015 on midterm and annual public investment plans;

Pursuant to the Government's Decree No. 84/2015/ND-CP dated September 30, 2015 on supervision and assessment of investments;

Pursuant to the Government's Decree No. 116/2008/ND-CP dated November 14, 2008 on functions, tasks, entitlements and organizational structure of the Ministry of Planning and Investment;

At the request of Director of Foreign Trade Department;

The Mi nister of Planning and Investment promulgates a Circular to provide guidelines for Decree no. 16/2016/ND on management and use of ODA and concessional loans granted by foreign sponsors.

Chapter I

GENERAL PROVISIONS

Article 1. Scope

This Circular provides guidance on implementation of some Articles of Decree no. 16/2016/ND on management and use of ODA and concessional loans granted by foreign sponsors specified in Clause 1 Article 66 of Decree No. 16/2016/ND-CP.

Article 2. Foreign sponsors

Foreign sponsors consist of:

1. Bilateral sponsors:

a) The governments of Ireland, England, India, Austria, Poland, Belgium, Canada, Kuwait, Denmark, Germany, Netherland, South Korea, Hungary, Italia, Luxembourg Malaysia, USA, Norway, Japan, New Zealand, Australia, Finland, France, Czech, Spain, Thailand, Sweden, China, Singapore.

b) Governmental organizations authorized by governments of foreign countries: Japan International Cooperation Agency (JICA), Agence Française de Développement (AFD), Kreditanstalt für Wiederaufbau (KfW) and organizations with similar legal status.

2. Multilateral sponsors:

a) International finance institutions and funds:

Group of World Bank (WB), International Monetary Fund (IMF), Asia Development Bank (ADB), OPEC Fund for International Development (OFID), Kuwait Fund, Arabia Investment Fund, NDF (NDF), Nordic Investment Bank (NIB).

b) International organizations and intergovernmental organizations

Europe Union (EU), United Nations High Commissioner for Refugees (UNHCR), Joint United Nations Programme on HIV/AIDS (UNAIDS), United Nations Development Programme (UNDP), United Nations Environment Programme (UNEP), United Nations Human Settlements Programme (UN-HABITAT), United Nations Volunteers (UNV) programme, The United Nations Entity for Gender Equality and the Empowerment of Women (UN Women), United Nations Conference on Trade and Development (UNCTAD), United Nations Educational, Scientific and Cultural Organization (UNESCO), Food and Agriculture Organization of the United Nations (FAO), International Labour Organization (ILO), World Health Organization (WHO), International Organization for Migration (IOM), United Nations Industrial Development Organization (UNIDO), United Nations Children's Fund (UNICEF), United Nations Population Fund (UNFPA), International Fund for Agricultural Development (IFAD), Global Environment Fund (GEF), United Nations Capital Development Fund (UNCDF), The Global Fund to Fight AIDS, Tuberculosis and Malaria, International Trade Center (ITC), United Nations Office on Drugs and Crime (UNODC).

3. Other foreign sponsors granting ODA and concessional loans to the government of Socialist Republic of Vietnam

Chapter II

PROCEDURES FOR PROPOSING, DECIDING INVESTMENT GUIDELINES AND DECISION ON INVESTMENT IN PROGRAM/PROJECT FUNDED BY ODA OR CONCESSIONAL LOAN

Article 3. Proposing a program/project funded by ODA or concessional loan

1. The governing body shall instruct an affiliate to prepare the proposal for a program/project funded by ODA or concessional loan (hereinafter referred to as “program/project proposal”) on the basis of:

a) The need for ODA or concessional loan to implement 5-year and annual socio-economic development plans of the governing body;

b) Policies and fields that need funding from ODA or concessional loans prescribed by law, cooperation orientation and fields for which provision of ODA and concessional loans by foreign sponsors is prioritized according to the Ministry of Planning and Investment.

2. The program/project proposal shall be prepared in accordance with Appendix II of Decree No. 16/2016/ND-CP in which the following contents shall be specified:

a) “Intended foreign sponsor”: If there is an intended foreign sponsor, the governing body shall provide information, documents and evidence (if any) about the proposed program/project such as a memorandum between the governing body and such foreign sponsor, relevant reports or studies;

b) “Estimated capital and duration”: The total capital of the proposed program/project (ODA or concessional loan and reciprocal capital) shall be estimated according to general norms or similar programs/projects that were executed or other Vietnamese and foreign documents.

c) “Proposed domestic financial mechanism and basis thereof”: Allocation of ODA or concessional loan from state budget; on-lending of ODA or concessional loan at a specific rate.

Article 4. Procedures for selection of a program/project proposal

1. Regarding a program/project funded by grant ODA within the authority to decide by the Prime Minister:

a) The governing body shall send a sponsorship proposal and the program/project proposal to the Ministry of Planning and Investment. The proposal shall be made into 08 bilingual (Vietnamese and English) copies which bear the governing body’s seal.

b) Within 05 working days from the receipt of valid documents, the Ministry of Planning and Investment shall seek opinions from the Ministry of Finance and relevant authorities according to the criteria specified in Clause 2 Article 13 of Decree No. 16/2016/ND-CP.

After opinions from relevant authorities are collected and the documents are not satisfactory, the Ministry of Planning and Investment shall request, in writing, the governing body to complete them. The Ministry of Planning and Investment shall send a written notification to the governing body whose proposal is selected in order for it to cooperate with the foreign sponsor in preparing the pre-feasibility study report or report on proposal of investment guidelines;

2. Regarding a program/project funded by ODA loan or concessional loan:

a) Proposing a program/project funded by ODA loan or concessional loan:

- The governing body shall send a sponsorship proposal and the program/project proposal to the Ministry of Planning and Investment. The proposal shall be made into 08 bilingual (Vietnamese and English) copies which bear the governing body’s seal.

- Within 05 working days from the receipt of valid documents, the Ministry of Planning and Investment shall seek opinions from the Ministry of Finance and relevant authorities according to the criteria specified in Clause 2 Article 13 of Decree No. 16/2016/ND-CP.

After opinions from relevant authorities are collected and the documents are not satisfactory, the Ministry of Planning and Investment shall request, in writing, the governing body to complete them. On the basis of opinions provided by relevant authorities, the Ministry of Planning and Investment shall submit the proposal to the Prime Minister for approval.

- The Ministry of Planning and Investment shall send a written notification to the governing body of the Prime Minister’s permission to prepare the pre-feasibility study report or report on proposal of investment guidelines.

b) Proposing a program/project funded by ODA loan or concessional loan granted by a foreign sponsor who provides associate technical assistance project serving preparation for the proposed program/project:

- The governing body shall send a sponsorship proposal, the program/project proposal and the technical assistance project proposal to the Ministry of Planning and Investment. The proposal shall be made into 08 bilingual (Vietnamese and English) copies which bear the governing body’s seal.

- The Ministry of Planning and Investment shall seek opinions from relevant authorities and request the Prime Minister to consider permitting preparation of the pre-feasibility study report or report on proposal of investment guidelines and investment guidelines of the technical assistance project (in one document).

c) Regarding a joint program/project:

A joint program/project proposal shall be prepared and approved by its governing body. Component projects of a joint program/project are exempt from procedures for selection of component projects.

Article 5. Documents about appraisal of pre-feasibility study report and report on proposal of investment guidelines

1. Documents about appraisal of pre-feasibility study report and report on proposal of investment guidelines of a program/project funded by ODA or concessional loan are specified in Clause 1 Article 20 of Decree No. 136/2015/ND-CP and the following documents:

a) Copies of the notification sent by the Ministry of Planning and Investment to the governing body that the governing body is permitted to prepare the pre-feasibility study report or report on proposal of investment guidelines;

b) Copies of documents about discussion with the foreign sponsor about the program/project (if any).

2. Quantity of documents:

a) Report on proposal of investment guidelines of a national target program or target program: 20 sets;

b) Pre-feasibility study report of a Group A project: 15 sets;

c) Pre-feasibility study report or report on proposal of investment guidelines of a program/project within the authority of the Prime Minister excluding Group A projects: 10 sets;

d) Pre-feasibility study report or report on proposal of investment guidelines of a program/project or non-project aid funded by grant ODA within the authority of the head of the governing body: 05 sets.

Article 6. Financial capacity verification documents

1. Documents relevant to verification of funding sources and financial capacity are specified in Clause 1 Article 21 of Decree No. 136/2015/ND-CP and the following documents:

a) Copies of the notification sent by the Ministry of Planning and Investment to the governing body that the governing body is permitted to prepare the pre-feasibility study report or report on proposal of investment guidelines;

b) Copies of documents about discussion with the foreign sponsor about the program/project (if any).

2. Quantity of documents sent to the Ministry of Planning and Investment: 05 sets.

Article 7. Investment guidelines appraisal contents

Contents of appraisal of investment guidelines of a program/project funded by ODA or concessional loan are specified in Article 15 through 17 of Decree No. 16/2016/ND-CP Article 23 and Article 24 of Decree No. 136/2015/ND-CP and the following contents:

1. Conformity with prioritized fields, rules for use of ODA and concessional loans, priority of provision of ODA and concessional loans by foreign sponsors, primary contents of the program/project proposal approved by a competent authority.

2. Ability to provide reciprocal capital in order to receive and use ODA or concessional loan.

3. Documents and procedures for appraisal of domestic financial mechanism and on-lending method shall comply with instructions of the Ministry of Finance.

Article 8. Appraisal duration

1. Time limit for appraising a pre-feasibility study report and report on proposal of investment guidelines shall begins when the appraisal council or governing body receives satisfactory documents as specified in Clause 1 Article 26 of Decree No. 136/2015/ND-CP.

For programs and projects within the authority of the Prime Minister excluding Group A projects: 30 days.

2. Time limit for appraising the funding source and financial capacity of a program/project funded by ODA or concessional loan begins when the appraising body receives satisfactory documents as prescribed in Clause 2 Article 26 of Decree No. 136/2015/ND-CP.

For programs and projects within the authority of the Prime Minister excluding Group A projects: 20 days.

3. The time limit for appraising the investment guidelines, the funding source and financial capacity mentioned in Clause 1 and Clause 2 of this Article only applies to the appraisal phase.

The time limit for appraisal by the governing body shall be decided by its head.

Article 9. Deadline for issuing a decision on investment guidelines and sending it to the Ministry of Planning and Investment, the Ministry of Finance and the foreign sponsor

1. The time limit for issuing a decision on investment guidelines begins when the authority having the power to decide investment guidelines receives satisfactory documents as prescribed in Clause 1 Article 27 of Decree No. 136/2015/ND-CP.

For programs and projects within the authority of the Prime Minister excluding Group A projects: 20 days.

2. The deadline for sending the decision on investment guidelines to the Ministry of Planning and Investment, the Ministry of Finance and the foreign sponsor is specified in Clause 2 Article 27 of Decree No. 136/2015/ND-CP and Clause 5 Article 58 of Decree No. 16/2016/ND-CP To be specific:

a) Within 15 days from the issuance date of the decision on investment guidelines, the governing body shall send it to the Ministry of Planning and Investment and the Ministry of Finance;

b) Within 5 working days from the day on which the decision on investment guidelines is received, the Ministry of Planning and Investment shall send an official request for sponsorship to the foreign sponsor.

Article 10. Contents of a decision on investment in a program/project funded by ODA or concessional loan

The investment decision issued by a competent authority shall have the following primary contents:

1. Regarding a construction program/project: Comply with regulations of law on management of construction, public investment and contents relevant to ODA or concessional loan: foreign sponsor and co-sponsor; domestic financial mechanism, sponsorship and on-lending mode; prior actions (if any).

2. Regarding a non-construction program/project, the investment decision shall have the following contents:

a) Name of the program/project;

b) Name of the foreign sponsor and co-sponsor (if any);

c) The governing body, project owner, and advisory organization (if any);

d) Primary targets;

dd) Investment scope;

e) Program/project duration;

g) Program/project location;

h) Technologies (if any) and technical regulations;

i) Total investment and allocation thereof by funding source, main item and phase (year);

k) Domestic financial mechanism, sponsorship and on-lending mode;

l) Management method;

m) Prior actions (if any).

3. Regarding a technical assistance project, the investment decision shall have the following primary contents:

a) Name of the program/project;

b) Name of the foreign sponsor and co-sponsor (if any);

c) The governing body, project owner, and primary cooperating bodies (if any);

d) Primary targets;

dd) Program/project duration;

e) Program/project location;

g) Total capital and allocation thereof by funding source, main item and phase (year);

h) Domestic financial mechanism, sponsorship and on-lending mode;

i) Management method;

k) Special conditions that contravene Vietnam’s law approved by a competent authority (if any).

4. Regarding non-project aid, the investment decision shall have the following primary contents:

a) Name of the non-project aid;

b) Name of the foreign sponsor and co-sponsor (if any);

c) The governing body and owner of the non-project aid;

d) Primary targets (categories and specifications if the non-project aid is commodity aid);

dd) The non-project aid duration;

e) The non-project aid location;

g) Total capital and allocation thereof by funding source and main item;

h) Domestic financial mechanism, sponsorship and on-lending mode;

i) Management method;

k) Special conditions that contravene Vietnam’s law approved by a competent authority (if any).

Chapter III

PROGRAM/PROJECT MANAGEMENT

Article 11. Selection of management method

1. The management method shall comply with the program/project instrument approved by a competent authority or the international treaty with the foreign sponsor.

2. Where the program/project instrument or international treaty does not specify the management method, the investment decider, in consideration of the nature, scope, field, location, and capacity of the project owner, shall decide it in accordance with Article 37 of Decree No. 16/2016/ND-CP and instructions in Article 12 of this Circular.

Article 12. Management methods

1. Management of a construction program/project (except those whose total capital is under USD 350,000 inclusive of grant ODA and reciprocal capital, the management method of which shall be decided by the project owner) shall comply with the Government's Decree No. 59/2015/ND-CP and Circular No. 16/2016/TT-BXD

2. Management method for other programs and projects:

a) Management of a new program/project by existing project management board

In order to enhance cooperation, integrity and reduce management cost, utilize the existing apparatus, the governing body and project owner may request the existing project management board to manage the new program/project.

To do this, the person who established the project management board shall issue a decision on amendments to functions and duties of the project management board.

b) Management of a program/project by the project owner

The following types of programs and projects shall be managed by its project owner:

- Any program/project funded by grant ODA the investment in which is under USD 350,000 inclusive of reciprocal capital.

- Any technical assistance program/project funded by grant ODA the investment in which is under USD 200,000 inclusive of reciprocal capital.

- Regional programs/projects, sectoral access programs, budget assistance, non-project aid.

The project owner shall assign their affiliates to perform management tasks in accordance with law and at least one part-time or full-time finance supervisor who is qualified for the position.

Within 03 after the management tasks are assigned, the project owner shall send a written notification to the Ministry of Planning and Investment and the Ministry of Finance.

c) Full management by the foreign sponsor

Where the program/project instrument or international treaty stipulates that the program/project must be fully managed by the foreign sponsor, the project owner shall appoint an affiliate to cooperate with the foreign sponsor in supervising the progress and quality, using the outcomes of the program/project.

d) Partial management by the foreign sponsor

Where the program/project instrument or international treaty stipulates that the program/project must be partially managed by both the foreign sponsor and the project owner, the governing body and the project owner shall establish a project management board which will perform the Vietnamese party’s management tasks in accordance with Vietnam’s law and agreement with the foreign sponsor.

dd) Hiring an advisory organization to manage the project

Where the project owner is not capable of program/project management or international treaty stipulate that an external managing body shall be hired, the project owner may hire a capable advisory organization to partially or fully manage the project under a contract between the project owner and the advisory organization. An advisory organization shall be selected in accordance with regulations on bidding. In this case, either of the following methods may be applied:

- Partial management of the program/project by the advisory organization: the advisory organization is responsible to the project owner under the contract. The project owner is also the account holder of the project.

- Full management of the program/project by the advisory organization: the advisory organization has to be a professional project management organization and shall be the project owner’s representative, totally responsible for execution of the project.

The project owner shall supervise the execution of the advisory contract, settle issues between the advisory organization and the contractor, local government and relevant parties. The project owner shall appoint some persons as supervisors, at least one of whom shall be chief supervisor and one shall be financial supervisor, part-time or full-time, who are qualified for such positions.

Article 13. Power and procedures for establishing a project management board

1. Where the project owner does not have a legal status, the governing body shall issue a decision on establishment of the project management board.

2. Where a project management board is not established, the governing body shall issue a decision to assign project management to the project owner.

3. Within 05 working days from the issuance date of the decision to establish the project management board or decision on additional tasks of the existing project management board, the project owner shall send copies of such decision to the Ministry of Planning and Investment, the Ministry of Finance, relevant authorities, and the foreign sponsor.

The specimen of the project management board establishment decision is provided in Appendix I enclosed herewith.

Article 14. Statute on organization and operation of project management board

1. Within 15 days from the issuance date of the decision to establish the project management board, the Director of the project management board shall request the person who established the project management board to approve the Statute on organization and operation of project management board. The project owner shall send it to the Ministry of Planning and Investment, the Ministry of Finance, relevant authorities and the foreign sponsor within 05 days from the day on which it is approved.

2. Regarding a construction program/project, the Statute on organization and operation of the project management board shall comply with Decree No. 59/2015/ND-CP and Circular No. 16/2016/TT-BXD.

3. The specimen of the Statute on organization and operation of the project management board is provided in Appendix I enclosed herewith, which must contain specific information about:

a) Organizational structure of a new project management board depends on its nature scope of operation, management method; the personnel must be adequate and qualified for the effective management of the program/project. The Director of the project management board shall propose its organizational structure which might consists of administrative, personnel, training, planning, bidding, finance and supervision departments.

Regarding an existing project management board that is assign to manage a new program/project, its Director shall adjust the Statute to the new tasks and submit it to the governing body for approval.

Regarding a program/project managed by the project owner, the project owner shall prepare written assignments of program/project managers.

b) Holders of key positions in the project management board, which comprise Director, Deputy Director (if any), Chief accountant or accountant, shall be specified by the governing body in the decision to establish the project management board. The Director and Chief accountant or accountant shall be full-time employees of the project owner or governing body.

c) Other positions in the project management board shall be designated and dismissed by its Director. Functions, tasks, entitlements and benefits of those positions shall be lawful, specified in the Statute and notified to the governing body and relevant parties.

d) External officers shall be recruited to the project management board in accordance with the program/project instrument approved by a competent authority and law. Where an officer of the project management board is mobilized from another unit, it is required to obtain a written consent of such unit.

4. Seal and account of the project management board:

A project management board may use its own seal in accordance with law or the seal of the governing body or project owner in accordance with regulations established by the governing body or project owner to serve the management and execution of the program/project.

A project management board may open VND and/or foreign currency accounts at commercial banks and/or State Treasuries in accordance with law and the international treaty with the foreign sponsor.

5. Funding for operation of the project management board:

Funding for operation of the project management board shall be extracted from the reciprocal capital specified in Article 48 of Decree No. 16/2016/ND-CP or from the ODA or concessional loan under the international treaty with the foreign sponsor.

6. Management and use of assets provided by the project owner for the project management board to serve management and execution of the program/project:

a) Assets within the framework of a program/project or non-project aid provided by the project owner for the project management board to serve management and execution of the program/project shall be used in a frugal, effective, and conformable manner as prescribed by law, the project instrument or international treaty with the foreign sponsor;

b) Where the advisory organization or contractor gifts an asset to the project management board, it shall request the project owner in writing to permit the use of such asset during the execution of the program/project and transfer it to the project owner after the program/project is complete.

7. Completion of a program/project and dissolution of the project management board thereof:

a) The time of completion of a program/project funded by ODA or concessional loan shall be specified in the decision on investment or international treaty with the foreign sponsor.

Within 06 months from the completion of the program/project, its project management board shall send a report on program/project completion and financial report to the project owner; the project owner shall submit them to the governing body. The report on program/project completion shall be prepared according to the report on terminal assessment of the program/project in accordance with law and the international treaty on provision of ODA or concessional loan. The management board shall transfer the assets managed by the project owner to the project owner in accordance with law.

After the report on program/project completion and terminal financial statement have been approved and the transfer of assets to the project owner has complete, the investment decider shall issue a decision on program/project completion. The person who established the project management board shall dissolve it.

b) Where the aforementioned tasks are not done by the deadline, the project management board shall send a written explanation to the project owner and request extension of the deadline.

The person who established the project management board shall consider extending the deadline for up to 06 more months for the project management board to complete the tasks and provide sufficient funding for operation of the project management board during the extension.

c) Where a project management board is responsible for more than one program/project, the investment decider shall issue a decision on completion of each program/project. The person who established the project management board shall adjust the functions and duties of the project management board accordingly.

Article 15. Adjusting program/project contents during execution

Program/project contents may be adjusted in accordance with Article 53 of Decree No. 16/2016/ND-CP To be specific:

1. Where adjustments to the program/project contents also change the decision on investment guidelines but do not change the international treaty: the project owner shall request the governing body to decide in accordance with Article 21 of Decree No. 16/2016/ND-CP.

2. Where adjustments to the program/project contents also change the investment decision but do not change the international treaty: the project owner shall request the governing body or a competent authority to decide adjustments to the investment decision.

3. Where adjustments to the program/project contents also change the international treaty:

a) Where adjustments to the program/project contents also change the decision on investment guidelines: follow instructions in Clause 1 of this Article. After adjustments to the decision on investment guidelines, program/project instruments and investment decision are approved by a competent authority, the governing body shall send a written request for adjustment to the international treaty to the authority that proposed conclusion of such treaty.

b) Where adjustments to the program/project contents also change the investment decision: follow instructions in Clause 2 of this Article. After adjustments to the program/project instrument and investment decision are approved by a competent authority, the governing body shall send a written request for adjustments to the international treaty to the authority that proposed conclusion of such treaty.

Article 16. Development, appraisal, approval and execution of 5-year public investment plans derived from ODA, concessional loans and reciprocal capital

1. 5-year public investment plans derived from ODA, concessional loans and reciprocal capital shall be formulated in accordance with Article 51 and Article 70 of the Law on Public Investment and Clause 4 Article 9 of the Law on State budget 2015.

2. The basis for development of 5-year public investment plans derived from ODA, concessional loans and reciprocal capital are specified in Article 5, Clause 2 Article 71 of the Law on Public Investment, Clause 2 Article 45 and Article 46 of Decree No. 16/2016/ND-CP.

3. Conditions for including a program/project in a 5-year public investment plan derived from ODA, concessional loans and reciprocal capital:

a) It is during the period of transition to the 5-year plan;

b) A decision on approval for investment guidelines has been issued by a competent authority and an international treaty on ODA or concessional loan is expected to be concluded during the execution of the 5-year plan.

4. Conditions for providing capital for a program/project under a 5-year public investment plan derived from ODA, concessional loans and reciprocal capital:

a) The program/project is part of the 5-year plan;

b) An international treaty on ODA or concessional loan is expected is concluded during the execution of the 5-year plan.

c) Reciprocal capital is provided in full according to the concluded international treaty;

d) Rules for allocation of public capital are complied with.

5. Procedures for developing and appraising a 5-year public investment plan derived from ODA, concessional loans and reciprocal capital are specified in Clause 2 Article 23 of Decree No. 77/2015/ND-CP

6. A 5-year public investment plan derived from ODA, concessional loans and reciprocal capital shall be submitted, approved and executed in accordance with Clause 3 Article 23 of Decree No. 77/2015/ND-CP

7. Contents of a 5-year public investment plan derived from ODA, concessional loans and reciprocal capital submitted by the governing body shall comply with provisions of Article 52 of the Law on Public Investment and shall specify the following information:

a) Progress and result of the previous 5-year plan, including result of international treaties on ODA and/or concessional loans;

b) Targets and purposes of ODA, concessional loan and reciprocal capital for supporting implementation of 5-year socio-economic development plans;

c) A list of programs and projects funded by ODA and/or concessional loans under 5-year plans sorted according to the governing bodies’ financial capacity;

d) Solutions and expected results.

8. Specimens of the list of programs and projects under the 5-year public investment plan derived from ODA, concessional loans and reciprocal capital:

- For governing bodies: Template TH 1 in Appendix III enclosed herewith.

- For project owners: Template TH 2 and TH 2.1 in Appendix III enclosed herewith.

9. An application for appraisal of a 5-year public investment plan derived from ODA, concessional loans and reciprocal capital consists of the documents specified in Article 25 of Decree No. 77/2015/ND-CP and the following documents:

a) A report on 5-year public investment plans derived from ODA, concessional loans and reciprocal capital specified in Clause 7 of this Article;

b) Concluded international treaties on ODA and concessional loans (if any);

c) Other relevant documents (if any), such as memorandums and commitments of foreign sponsors.

Article 17. Development, appraisal, approval and execution of annual public investment plans derived from ODA, concessional loans and reciprocal capital

1. Rules for development of annual public investment plans derived from ODA, concessional loans and reciprocal capital are specified in Article 51 and Article 70 of the Law on Public Investment and Clause 4 Article 9 of the Law on State budget 2015.

2. Basis for development of an annual public investment plan derived from ODA, concessional loans and reciprocal capital by a governing body:

a) Programs and projects on the List of programs and projects that are part of the 5-year public investment plan under concluded international treaties on ODA and concessional loans;

b) Overall and detailed annual investment plans of the programs and projects under the management of the governing body specified in Clause 2 Article 71 of the Law on Public Investment.

The development and approval of an overall plan for execution of a program/project funded by ODA or concessional loan shall comply with Article 46 of Decree No. 16/2016/ND-CP.

3. Rules for selection of the List of programs and projects and planning allocation of capital derived from ODA and concessional loans of foreign sponsors are specified in Article 30 of Decree No. 77/2015/ND-CP

4. Procedures for developing, submitting, approving and executing the annual public investment plan derived from ODA, concessional loans and reciprocal capital are specified in Article 37 of Decree No. 77/2015/ND-CP and Article 47 of Decree No. 16/2016/ND-CP.

5. Contents of a report on execution of the annual public investment plan derived from ODA, concessional loans and reciprocal capital submitted by the governing body are specified in Article 53 of the Law on Public Investment, Article 5 of Decree No. 77/2015/ND-CP and Clause 2 Article 47 of Decree No. 16/2016/ND-CP The report must specify the following characteristics of the source of ODA or concessional loan provided by the foreign sponsor:

a) Progress of the previous year’s public investment plan derived from ODA, concessional loans and reciprocal capital;

b) Ability to raise and balance sources of ODA and concessional loans of foreign sponsors and reciprocal capital in the planning year;

c) Selection of the list of programs and projects and amount of investment in each of them that is conformable with the 5-year public investment plan and the ability to balance funding sources for the annual public investment plan;

d) Solutions for management and execution and expected results.

6. Specimens of the list of programs and projects under annual public investment plans derived from ODA, concessional loans and reciprocal capital:

- For governing bodies: Template HN 1.1 and HN 1.2  in Appendix III enclosed herewith.

- For project owners: Template HN 2, HN 2.1 and HN 2.2 in Appendix III enclosed herewith.

7. An application for appraisal of an annual public investment plan derived from ODA, concessional loan and reciprocal capital consists of the documents specified in Article 39 of Decree No. 77/2015/ND-CP and the following documents:

a) A report on the annual public investment plan derived from ODA, concessional loan and reciprocal capital specified in Clause 5 of this Article;

b) Concluded international treaties on ODA and concessional loans.

Article 18. Adjusting 5-year and annual public investment plans derived from ODA, concessional loans and reciprocal capital

1. 5-year public investment plans derived from ODA, concessional loans and reciprocal capital shall be adjusted in accordance with Article 44 of Decree No. 77/2015/ND-CP and Point c Clause 2 Article 45 of Decree No. 16/2016/ND-CP.

2. Annual public investment plans derived from ODA, concessional loans and reciprocal capital shall be adjusted in accordance with Article 44 of Decree No. 77/2015/ND-CP.

Article 19. Monitoring, inspecting and assessing public investment plans derived from ODA, concessional loans and reciprocal capital

1. Public investment plans derived from ODA, concessional loans and reciprocal capital shall be monitored and inspected in accordance with Article 77 of the Law on Public Investment and Clause 1 Article 8 of Decree No. 77/2015/ND-CP

2. Public investment plans derived from ODA, concessional loans and reciprocal capital shall be assessed in accordance with Article 78 of the Law on Public Investment and Clause 2 Article 8 of Decree No. 77/2015/ND-CP.

3. Programs and projects funded by ODA and concessional loans shall be monitored and assessed in accordance with Article 56 of Decree No. 16/2016/ND-CP and Article 19 through 25 of this Circular.

4. The governing body, project owner, the investment decider and public investment authority shall monitor, inspect and assess the entire investment process in accordance with approved criteria in order to ensure achievement of targets and efficiency of such programs and projects.

5. Violations committed during the process of monitoring, inspection and assessment of public investment plans derived from ODA and concessional loans shall be dealt with in accordance with Article 105 of the Law on Public Investment, Article 71 of Decree No. 84/2015/ND-CP and relevant regulations of law.

Article 20. Supervision of a program/project funded by ODA or concessional loan

1. The responsibility to supervise a program/project funded by ODA or concessional loan is specified in Article 12 of Decree No. 84/2015/ND-CP

2. The supervision by the authority preparing investment in the program/project funded by ODA or concessional loan is specified in Article 13 of Decree No. 84/2015/ND-CP

3. The supervision by the project owner of a program/project funded by ODA or concessional loan is specified in Article 14 of Decree No. 84/2015/ND-CP

4. The supervision by investment decider is specified in Article 15 of Decree No. 84/2015/ND-CP

5. The supervision by the governing body and public investment authority is specified in Article 16 of Decree No. 84/2015/ND-CP

6. The supervision by a specialized regulatory body is specified in Article 17 of Decree No. 84/2015/ND-CP

Article 21. Assessment of programs and projects funded by ODA or concessional loan

Programs and projects funded by ODA or concessional loan shall be assessed in accordance with Article 80 of the Law on Public Investment and Article 18 of Decree No. 84/2015/ND-CP To be specific:

1. Assessment of programs and projects funded by ODA or concessional loan shall be carried out as follows:

a) Projects of national importance and Group A projects shall undergo initial assessment, midterm assessment, terminal assessment and impact assessment;

b) Group B and Group C projects shall undergo terminal assessment and impact assessment;

c) Apart from the provisions of Point a and b of this Clause, the investment decider and public investment authority shall carry out other types of assessment where necessary.

2. Responsibility to organize assessment of a program/project funded by ODA or concessional loan:

a) The project owner shall organize the initial assessment, midterm assessment and terminal assessment;

b) The governing body and investment decider shall organize irregular assessments and impact assessment;

c) The public investment authority shall ex officio organize planned assessments and irregular assessments.

Article 22. Assessment contents

Contents of assessment of a program/project funded by ODA or concessional loan provided by foreign sponsor are specified in Article 81 of the Law on Public Investment and elaborated as follows:

1. Initial assessment:

a) After 90 days from the initiation of the program/project, the project management board shall carry out the initial assessment in order to review and update the execution plan and report adjustments to the plan to the project owner.

In case of a large-scale or complex project, the project owner shall hire an advisory organization to carry out the initial assessment.

b) Initial assessment contents:

- Assessment of preparatory and organizational tasks, mobilization of resources by the project management board.

- Assessment of difficulties that arise after the program/project instrument is approved and proposed solutions.

- Discovered objective difficulties (because of changes in the law, progress, activities, work items; because of climate, traditions, populations, other relevant conditions) or objective difficulties (organizational structure, managerial capacity of the project owner or project management board) and proposed solutions.

After the assessment is complete, the project management board shall prepare an initial assessment report and submit it to the project owner.

c) Within 15 days from the completion of the initial assessment report, the project owner shall send it and a feedback report which contains analysis and proposals to the governing body and foreign sponsor.

2. Midterm assessment:

a) The midterm assessment shall be carried out in accordance with the execution plan. The midterm assessment is usually carried out in the middle of the program/project duration or upon completion of a stage if the program/project consists of multiple stages.

b) Midterm assessment contents:

- Assessment of the conformity of the results and targets of the program/project.

- Assessment of the value (disbursed ODA, concessional loan and reciprocal capital) and quality of works at the time of assessment compared to the overall execution plan and annual execution plan.

- Discovered objective difficulties (because of changes in the law, progress, activities, work items; because of climate, traditions, populations, other relevant conditions) or objective difficulties (organizational structure, managerial capacity of the project owner or project management board) that occur during the execution of the program/project and proposed solutions.

- Proposed solutions for ensuring achievement of targets, punctuality and quality in the remaining period or next stages. Where necessary, proposed adjustments to the project contents or structures, cancellation of some activities or work items; plan for use of redundant capital.

c) Within 15 days from the completion of the midterm assessment report, the project owner shall send it and a feedback report which contains analysis and proposals to the governing body and foreign sponsor.

3. Terminal assessment:

a) The terminal assessment shall be complete within 06 months from the ending date of the program/project specified in the international treaty on ODA or concessional loan. The terminal assessment is the basis for preparing the terminal report.

b) Terminal assessment contents:

- Assessment of preparatory and organizational tasks.

- Assessment of the results of the program/project, including: management of program/project execution; allocation and disbursement of ODA, concessional loan and reciprocal capital; mobilization of resources to program/project execution; final results of the program/project; direct and indirect benefits of the program/project; impact of the program/project on the affected population.

- Assessment of the impacts of the program/project, which comprise economic impact, social impact, environmental impact, technological impact and impact on development of human resources.

- Assessment of sustainability of the program/project and guarantee factors.

- Lessons learned from the preparation, organization and execution of the program/project.

- Recommendations for assurance of effectiveness and sustainability of the program/project.

c) Within 15 days from the completion of the terminal assessment report, the project owner shall send a feedback report which contains analysis and proposals together with the report on result of the initial assessment to the governing body and foreign sponsor.

4. Impact assessment:

a) The impact assessment shall be carried out by the authority that decided the investment within 03 years from the day on which the program/project is put into operation.

b) Impact assessment contents:

- Economic and technical outcomes of the program/project during its operation.

- Its economic, political and social impacts.

- Its environmental impacts.

- Its impact on the affected population and beneficiary population.

- Sustainability of the program/project.

- Community opinions about the program/project.

- Lessons learned from the process of design, management, execution and operation of the program/project.

c) Within 15 days from the completion of the impact assessment, the governing body shall send an impact assessment report to the Ministry of Planning and Investment and relevant authorities to serve national assessment of efficiency of the use of ODA or concessional loan provided by the foreign sponsor.

5. Irregular assessment:

a) In case of unexpected difficulties that arise during the execution of the program/project, the authority that decided the investment shall carry out an irregular assessment.

b) Irregular assessment contents:

- Nature of the unexpected difficulties.

- Assessment of impacts of the difficulties on the execution of the program/project and ability to achieve set targets.

- Proposed solutions, responsible bodies and deadlines for solving.

c) The result of the irregular assessment is the basis for the competent authority to intervene in order to minimize damage or prevent failure of the program/project.

Article 23. Reporting the use of ODA or concessional loan by the project owner

1. For programs and projects:

The project owner shall prepare reports on execution of the program/project and send it to the governing body, the Ministry of Planning and Investment, the Ministry of Finance, relevant Ministries and the People’s Committee of the province where the program/project is executed.

Specimens of quarterly reports and annual reports (Form IV-GSDG 1), assessment report before commencement (Form IV-GSDG 2), assessment report before project adjustments (Form IV-GSDG 3) and terminal report (Form IV-GSDG 4) are provided in Appendix IV of this Circular. The project management board shall prepare and submit the reports to the project owner, who will send them to the governing body and relevant bodies.

a) Quarterly reports, biannual reports and annual reports

Quarterly reports, biannual reports and annual reports shall be prepared for all programs and projects.

Within 10 days after the end of a quarter and 20 days after the end of the year, the project owner shall submit a quarterly report on the program/project execution according to Form IV-GSDG in Appendix IV of this Circular to the governing body, the Ministry of Planning and Investment, the Ministry of Finance, relevant Ministries and the People’s Committee of the province where the program/project is executed, the foreign sponsor, and update it on the public investment information system of the Ministry of Planning and Investment.  

Form GSDG 1.1 shall be sent only once together with the first quarterly report and resent in case of any change to the concluded international treaty on ODA or concessional loan. Reports sent to the foreign sponsor shall be enclosed with their English translations, unless otherwise agreed.

Forms GSDG 1.6 and GSDG 1.7 are not required if the program/project does not involve land clearance, compensation, relocation and environmental protection.

b) Assessment report before commencement

An assessment report shall be prepared before commencement of every program/project.

The project owner shall send the assessment report according to Form IV-GSDG 2 in Appendix IV 15 days before the commencement date to the investment decider, governing body, the Ministry of Planning and Investment, the supervising and assessing unit, update it on the public investment information system of the Ministry of Planning and Investment.

c) Assessment report upon project adjustments

An assessment report shall be prepared upon adjustments to any program/project.

The project owner shall send the assessment report according to Form IV-GSDG 3 in Appendix IV 15 days before the commencement date to the investment decider, governing body, the Ministry of Planning and Investment, the supervising and assessing unit, update it on the public investment information system of the Ministry of Planning and Investment.

d) Program/project completion report

A program/project completion report shall be prepared upon completion of any program/project.

Within 06 months from the completion date of the program/project, the project owner shall send a completion report (Form IV-GSDG 4 in Appendix IV enclosed herewith) to the governing body, the Ministry of Planning and Investment, the Ministry of Finance, relevant Ministries and the People’s Committee of the province where the program/project is executed, the foreign sponsor, and update it on the public investment information system of the Ministry of Planning and Investment.

2. Regarding component projects of a joint program/project:

The owner of each component project shall submit reports in accordance with Decree No. 16/2016/ND-CP and Clause 1 of this Article. Reports shall be sent to the governing body of each component project and owner of the joint program/project. The owner of the joint program/project shall consolidate the reports and follow instructions in Decree No. 16/2016/ND-CP and Clause 1 of this Article.

3. For non-project aid:

The reporting regulations and forms are the same as those of programs and projects specified in Decree No. 16/2016/ND-CP and Clause 1 of this Article.

4. Apart from provisions of this Article, during execution of a new program/project, the project owner shall notify the governing body, the Ministry of Planning and Investment, the Ministry of Finance, relevant Ministries and the People’s Committee of the province where the project is executed of any adjustments or extension to the concluded international treaty on ODA or concessional loan.

5. Where the international treaty contains different stipulations on reporting, the project owner shall comply with such stipulations of the treaty in addition in provisions of Decree No. 16/2016/ND-CP and this Circular.

Article 24. Reporting the use of ODA or concessional loans by the governing body

Within 20 days after the end of a quarter and 30 days after the end of the year, the project owner shall submit a physical and electronic report on raising, receipt and use of ODA and concessional loans, result of execution of programs and projects funded by ODA and concessional loans under their management according to Form IV-GSDG 5 in Appendix IV enclosed herewith to the Ministry of Planning and Investment and the Ministry of Finance, and update it on the public investment information system of the Ministry of Planning and Investment.

Article 25. National reports on the use of ODA or concessional loans

1. The Ministry of Planning and Investment shall prepare biannual and annual reports on raising, management and use of ODA and concessional loans according to Form IV-GSDG 6 in Appendix IV enclosed herewith and submit them (physically and electronically) to the Prime Minister, notify the Ministry of Finance and relevant bodies (physically and electronically). The biannual report shall be sent before July 31 and annual report before February 15 of the next year.

2. The Ministry of Finance shall prepare biannual and annual reports on disbursement and repayment of ODA and concessional loans according to Form IV-GSDG 7 in Appendix IV enclosed herewith and submit them (physically and electronically) to the Prime Minister, notify the Ministry of Planning and Investment and relevant bodies (physically and electronically). The biannual report shall be sent before July 31 and annual report before February 15 of the next year.

Chapter IV

IMPLEMENTATION CLAUSE

Article 26. Transition clause

During the transition period from the Government's Decree No. 38/2013/ND-CP:

1. Regarding programs, projects and non-project aid whose instruments have been submitted but sponsorship lists have not been approved as prescribed in Decree No. 38/2013/ND-CP the governing body shall follow the instructions in Article 4 of this Circular.

2. Regarding programs, projects and non-project aid whose sponsorship lists have been approved as prescribed in Decree No. 38/2013/ND-CP the preparation, appraisal and issuance of the investment decisions thereof and succeeding stages shall comply with Decree No. 16/2016/ND-CP.

Where a change to contents of program, project or non-project aid whose sponsorship list has been approved as prescribed in Decree No. 38/2013/ND-CP results in adjustments to the decision on approval for the sponsorship list, provisions of Article 21 of Decree No. 16/2016/ND-CP shall apply.

3. Where contents of a program, project or non-project aid whose instrument has been approved by a competent authority as prescribed in Decree No. 38/2013/ND-CP are adjusted during its execution, instructions in Article 15 of this Circular shall be followed.

Article 27. Effect

1. This Circular comes into force from September 22, 2016.

2. This Circular replaces Circular No. 01/2014/TT-BKH dated January 09, 2014 of the Ministry of Planning and Investment on guidelines for the Government's Decree No. 38/2013/ND-CP

Article 28. Organization of implementation

1. Ministries, ministerial agencies, Governmental agencies, other central authorities, People’s Committees, relevant organizations and individuals are responsible for the implementation of this Circular.

2. Difficulties that arise during the implementation of this Circular should be reported to the Ministry of Planning and Investment for consideration./.