Nghị định 114/2021/ND-CP

Nội dung toàn văn Decree 114/2021/ND-CP management and use of official development assistance ODA


GOVERNMENT
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SOCIALIST REPUBLIC OF VIETNAM
Independence - Freedom - Happiness
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No. 114/2021/ND-CP

Hanoi, December 16, 2021

 

DECREE

ON MANAGEMENT AND USE OF OFFICIAL DEVELOPMENT ASSISTANCE (ODA) AND CONCESSIONAL LOANS PROVIDED BY FOREIGN DONORS

Pursuant to the Law on Government Organization dated June 19, 2015; the Law on Amending and Supplementing certain Articles of the Law on Government Organization and the Law on Local Government Organization dated November 22, 2019;

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

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

Pursuant to the Law on Construction dated June 18, 2014; the Law on Amendments and Supplements to several the Law on Construction dated June 17, 2020; 

Pursuant to the Law on Management and Use of State Capital Invested in Production and Business Activities of Enterprises dated November 26, 2014;

Pursuant to the Law on Treaties dated April 9, 2016;

Pursuant to the Law on Management of Public Debts dated November 23, 2017;

Pursuant to the Law on Public Investment dated June 13, 2019;

Pursuant to the Law on Investment dated June 17, 2020;

Pursuant to the Law on Enterprises dated June 17, 2020;

Pursuant to the Law on Public – Private Partnership Investment dated June 18, 2020;

Pursuant to the Law on Environmental Protection dated November 17, 2020;

Upon the request of the Minister of Planning and Investment;

The Government herein issues the Decree on management and use of official development assistance (ODA) and concessional loans provided by foreign donors.

Chapter I

GENERAL PROVISIONS

Article 1. Scope

This Decree provides for the management and use of official development assistance (ODA) and concessional loans provided by foreign governments, international organizations, inter-government or international organizations, governmental organizations authorized by foreign governments (hereinafter referred to as foreign donors) to the State or the Government of Socialist Republic of Vietnam.

Article 2. Subjects of application  

This Decree applies to agencies, organizations and individuals that participate in or are related to the management and use of ODA and concessional loans granted by foreign donors, and counterpart fund on the Vietnam’s side.

Article 3. Definitions

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

1. Steering Committee for programs or projects funded by ODA and concessional loans (hereinafter referred to as Steering Committee) means an organization established by the managing agency of a program/project funded by ODA or concessional loans (hereinafter referred to as “program/project”) in which an authorized representative of the relevant agency participates to take control of, cooperating in, and supervising the execution of the program/project. In some cases where necessary, under an agreement with the foreign donor, the Steering Committee may include the foreign donor’s representatives.

2. Management Unit of foreign aid program or project funded by ODA and concessional loans (hereinafter referred to as Project Management Unit) means an organization established to help the managing agency or the project owner in managing the execution of one or some programs/projects.

3. Program means a series of activities and projects funded by ODA or concessional loans that are interrelated and might be related to one or some different sectors, industries, territories or subjects with an aim of achieving one or some targets, and is executed in one or several phases.

4. Program associated with a policy framework means a program that is subject to conditions for disbursement of ODA or concessional loans of foreign donors associated with the commitment of Vietnam’s government to building and implementing policies, regulations, solutions for socio-economic development in accordance with the scale and schedule agreed upon among the parties.

5. Regional and global program/project (hereinafter referred to as regional program/project) means a program/project that is sponsored on a global scale or for which aid are received by a group of nations in the same region or different regions to engage in cooperation in achieving certain targets for the benefits of participating parties and in the common interests of the whole region or world. Vietnam’s participation in such a program/project can exist in either form as follow:

a) Participation in one or some activities readily designed by the foreign donor that are embraced in the regional program/project;

b) Execution of operations for which aid is provided for Vietnam in order to develop and execute the program/project within the framework of the regional program/project.

6. Sectoral approach program means a program funded by ODA or concessional loans in which the foreign donor provides assistance according to the development program of an industry or sector in order to ensure concerted, sustainable and effective development of such industry or sector.

7. Managing agency of a program/project funded by ODA and concessional loans (hereinafter referred to as Managing agency) means the central agency of a political organization; the People’s Supreme Procuracy; the People’s Supreme Court, an agency of the National Assembly; the National Assembly’s Office; the State Audit Agency; the President Office, a Ministry, ministerial agency or Governmental agency, the People’s Committee of a province or centrally-affiliated city (hereinafter referred to as provincial People’s Committee); the central agency of Vietnamese Fatherland Front, a socio-political organization, socio-political-professional organization, or socio-professional organization that performs the duty assigned by a competent state authority; other agency or organization assigned the public investment plan comprising the program/project funded by ODA and concessional loans.

8. Owner of a program/project funded by ODA and concessional loans means a unit assigned by the managing agency to directly manage or jointly execute that program/project.

9. Domestic financial mechanism applied to programs/projects funded by ODA and concessional loans (hereinafter referred to as domestic financial mechanism) means regulations on the use of ODA and concessional loans from the state budget for the program/project, including:

a) Full grant of 100% of the loan proceeds;

b) Partial on-lending at the predetermined rate;

c) Full on-lending.

The on-lending method is carried out according to the approach whereunder credit risk is borne or not.

10. Project means a set of proposals that correlate in order to achieve one or more specified goals, and is implemented in a specified area within a predetermined time period and based on defined resources.

Technical assistance project means a project aimed to assist in study into policies, institutions, professions, improvement of capacity through activities, such as provision of domestic and foreign experts, training, provision of equipment and materials, study visits, trips, domestic and overseas conventions, provision of equipment, development of demonstration model, preparation and support for execution of the investment project. Technical assistance projects are comprised of independent technical assistance projects and technical assistance projects making preparations for investment projects.

11. Program/project proposal means a document describing the setting, necessity, objectives, scope, main outcomes, expected execution duration, estimated total investment and capital structure, preliminary assessment of economic, social and environmental impacts (if any), proposed domestic financial mechanism, debt repayment plan; impacts on the mid-term investment plan of the managing agency (with respect to public investment programs/projects).

12. International treaty on ODA or concessional loans means an international treaty defined by the Law on Treaties on the receipt, management and use of ODA and concessional loans, which can be either:

a) Framework international treaty on ODA or concessional loan, which is an international convention related to a strategy, policy and framework for cooperation, prioritized fields; principles and standards binding upon the provision and use of ODA or concessional loans; commitment on ODA or concessional loans for one or several years, and other matters agreed upon between its signatories;

b) A specific international treaty on ODA or concessional loan, which is an international convention on specific matters related to the targets to be attained from, activities involved in, duration for implementation thereof, achievements; conditions for sponsoring, capital, capital structure, financial requirements of a loan and loan repayment schedule; management formalities; duties, responsibilities and powers of the parties towards management of the program/project funded by ODA or concessional loan, and other matters agreed upon between the signatories.

13. Agreement on ODA or concessional loan means a written arrangement on ODA or concessional loan concluded in the name of the Government of Socialist Republic of Vietnam and is not an international treaty. Such an agreement can be either:

a) A framework agreement, which is an agreement related to a strategy, policy and framework for cooperation, prioritized fields; principles and standards binding upon the provision and use of ODA or concessional loans; commitment on ODA or concessional loans for one or several years, and other matters agreed upon between its signatories;

b) A specific agreement, which is an agreement on ODA or concessional loan related to the targets to be attained from, activities involved in, duration for implementation thereof, attained outcomes; conditions for sponsoring, capital, capital structure, financial requirements of a loan and loan repayment schedule; management formalities; duties, responsibilities and powers of the parties towards management of execution of the program/project funded by ODA or concessional loan, and other matters agreed upon between the signatories.

14. Budget support means a method of provision where ODA or concessional loan is transferred directly to the state budget, managed and used in accordance with state budget regulations and procedures in order to achieve set targets in agreement with the foreign donor. Budget assistance can be general budget support or central budget support given to a national target program approved by the competent authority.

15. Service bank means a bank selected by the user (project owner) to perform business transactions for ODA or concessional loan-funded projects, based on judgements about banks that are qualified as service banks for projects run by the State Bank of Vietnam.

16. Non-project assistance means a method of providing the ODA grant in the form of a separate aid without constituting a single project. The aid can be cash, goods or experts carrying out one of the activities, such as conferences, seminars, training, research, and surveys.

17. Decision on implementation policy for a technical assistance project or a non-project assistance funded by the ODA grant (hereinafter referred to as execution policy) means a Prime Minister’s written decision on policy for execution of a technical assistance project or non-project assistance (except technical assistance projects funded by the ODA grant that make preparations and provide assistance for execution of investment projects). Such written decision should contain the following main information: name of the project/non-project assistance, the foreign donor or co-donor; name of the managing agency; targets; total investment amount. Implementation policy decision serves as a basis for the managing agency’s cooperation with the foreign donor on approval of technical assistance project or non-project documentation.

18. Document of a technical assistance project or non-project assistance funded by the ODA grant (hereinafter referred to as project document) means any document that describes the context, necessity, targets, content, primary activities, execution duration, expected economic, social and environmental effects, total capital, capital sources and structure, other resources, sponsoring method, the foreign donor’s conditions (if any), approaches for management of execution of projects approved by the managing agency as a basis for execution of the technical assistance project or non-project assistance.

19. ODA or concessional loan means capital provided by a foreign donor for the State or the Government of Socialist Republic of Vietnam to assist in development, assurance of welfare and social security, which is either:

a) ODA grant, which is an ODA financing, the refund of which to the foreign donor is not required, and which is provided in the form of an independent project or in combination with investment projects funded by ODA or foreign concessional loans;

b) ODA loan, which is a foreign loan with at least 35% grant element if the loan is tied to mandatory procurement of goods or services as required by the foreign donor, or at least 25% grant element if it is an untied aid. Calculation of the grant element is specified in Appendix I hereto;

c) Concessional loan, which is a foreign loan that sets terms and conditions that are more favorable than those of a commercial loan, but has the grant element of which is lower than that of an ODA loan mentioned in point b hereof.

20. Counterpart fund means capital contributed on the Vietnam’s side (in cash or in kind) in a program/project funded by ODA or concessional loan in order to prepare for and execute the program/project. Counterpart fund is provided by the central government budget, the local government budget or the project owner, or contributed by the beneficiary, or other lawful capital source.

21. Mixed capital means capital combined from various sources of ODA and concessional loans with different levels of concession to improve the technical and financial capacity in various forms to increase the grant element of loans for the programs and projects.

22. Surplus fund is the amount of ODA or concessional loan from the foreign donor that come into existence during the period of implementation of a program or project, including post-bidding excess capital, excess capital arising due to exchange rate changes, unused reserve capital and other excess funds.

23. Emergency aid means an ODA or concessional loan provided to Vietnam by the foreign donor for relief and mitigation of natural disaster consequences that are not covered by the Government's regulations on acquisition, management and utilization of international emergency aid for natural disaster relief and recovery; disaster relief, disease prevention; performance of urgent national defense, security and diplomatic tasks in accordance with decisions of competent authorities.

Article 4. Methods for provision of ODA and concessional loans

Methods for provision of ODA and concessional loans include:

1. Program.

2. Project.

3. Non-project.

4. Budget support.

Article 5. Priority use of ODA and concessional loans

1. ODA grants shall be prioritized for use to implement socio-economic infrastructure and capacity building programs/projects; formulate policies, institutions and reforms; prevent, combat, mitigate the risk of natural disasters, provide disaster relief, prevent and control diseases; adapt to climate change; ensure green growth, innovation, and social security; prepare investment projects or co-finance projects using concessional loans to increase the grant elements of the loan.

2. ODA loans shall be prioritized for programs and projects in the fields of health, education, vocational education, climate change adaptation, environmental protection, essential economic infrastructure with no direct cost recovery possibility.

3. Concessional loans are prioritized for on-lending programs and projects in accordance with the Government’s regulatory provisions on on-lending of foreign ODA and concessional loans; programs and projects funded by the state budget in the field of socio-economic infrastructure development.

4. Other priority cases shall comply with the Prime Minister’s decision on the Orientations to attract, manage and utilize foreign donors’ ODA and concessional loans from time to time.

Article 6. Contents and basic rules for state management of ODA and concessional loans

1. Scope of state management for ODA and concessional loans:

a) Formulate, promulgate and organize the implementation of legislative documents on management and use of ODA and concessional loans;

b) Formulate and implement Proposals for attracting, managing and using ODA and concessional loans in each stage to facilitate the implementation of 5-year socio-economic development plans; measures and policies to effectively manage and use such funding sources;

c) Supervise and provide information about management and use of ODA and concessional loans;

d) Monitor, evaluate, and inspect the management and use of ODA and concessional loans according to regulatory provisions.

2. Basic rules for state management of ODA and concessional loans:

a) ODA and concessional loans shall be used to finance capital expenditures only, and are not available for recurrent expenditures. Foreign loans must not be used to carry out activities, such as training or drilling for capacity building, except transfer of technologies and skills in operating equipment and machinery; make study visits or trips; pay taxes, fees, and interest expenses on loans; purchase cars, except for specialized cars decided by competent authorities, reserve supplies and equipment for operation phase after the project is completed, except for special ones decided by competent authorities in accordance with legislative regulations; pay compensation, support and resettlement expenses; pay operating expenses of the Project Management Unit; 

b) The Government shall unify the state management of ODA and concessional loans on the basis of ensuring the effective use of capital and solvency; decentralization associated with accountability, power, managerial capability of ministries, central and local authorities; ensuring coordinated management, supervision and evaluation of concerned agencies in accordance with applicable laws;

c) Ensure information disclosure and transparency; promote accountability in terms of policies, procedures for raising, managing and using ODA and concessional loans among industries, sectors and localities; and the effectiveness of using ODA and concessional loans;

d) Disclose information about cooperation policies, priority fields of foreign donors on the Government's web portals (chinhphu.vn; mpi.gov.vn; mof.gov.vn; mofa.gov.vn);

dd) Prevent and combat corruption, losses and wastefulness in management and use of ODA and concessional loans; prevent and impose punishments for these acts in accordance with law;

e) Methods of determining capital expenditures funded by the state budget: Capital expenditures are determined in compliance with the provisions of the Law on Public Investment, the Law on State Budget, the Law on Construction and other relevant legislative documents.

Article 7. Principles of applying domestic financial mechanism for ODA and concessional loans

1. For programs/projects funded by central government budget, the method of full grant of foreign ODA loans and concessional loans from the central budget shall be applied. 

2. For investment programs/projects funded by local government budget, the method of partial or full on-lending of foreign ODA and concessional loans as prescribed by legislation on on-lending of the Government’s foreign ODA loans and concessional loans shall be applied.

For investment programs/projects funded by local government budget that use foreign ODA and concessional loans to finance the locality's contribution in public-private partnership (PPP) projects, the method of full on-lending of foreign ODA and concessional loans as prescribed by legislation on on-lending of foreign ODA and concessional loans shall be applied.

3. For investment programs/projects with full or partial cost recoverability, the method of full or partial on-lending of foreign ODA and concessional loans from the central budget as prescribed by legislation on on-lending of the Government’s foreign loans shall be applied.

4. For ODA grants, including those associated with loans, ODA grants for investment projects, technical assistance projects (e.g. independent projects, preparatory and supporting projects), and non-projects, the method of full grant of 100% of the loan proceeds shall be applied.

Article 8. Order and procedures for management and use of ODA and concessional loans

1. For programs/projects funded by ODA and concessional loans:

a) Draft, select and approve the program/project proposal;

b) Send an official notice of the approved program/project proposal to the foreign donor;

c) Draft, appraise and decide on the investment policy for the program/project;

d) Officially notify the foreign donor of the investment policy decision of the program or project and the sponsoring request;

dd) Draft, appraise and decide on investment in the program/project;

e) Depending on donor regulations, one of the following procedures shall be performed: Sign international treaties, agreements on ODA and concessional loans;

g) Carry out the performance management and financial management;

h) Complete and transfer the results.

2. For technical assistance projects and non-project assistance funded by ODA grants:

a) Formulate project documents and non-project documents;

b) Decide on the implementation policy for projects and non-project assistance specified in clause 1 of Article 23 herein;

c) Appraise and approve project documents and non-project documents;

d) Officially notify the foreign donor of the approval the project/non-project document and the request for sponsoring;

e) Depending on foreign donor’s regulations, one of the following procedures shall be performed: Sign international treaties, agreements on ODA grants; sign aide memoire on technical assistance projects and non-project assistance;

e) Carry out the performance management and financial management;

g) Complete and transfer the results.

3. For budget support:

a) Make documents and records on the budget support;

b) Decide on the policy to receive the budget support;

c) Sign international treaties, agreements on ODA and concessional loans for the budget support;

d) Carry out the performance management and financial management;

dd) Complete and transfer the results.

4. For programs/projects funded by mixed capital: The managing agency shall follow the order and procedures applied to the programs and projects funded ODA and concessional loans as specified in clause 1 of this Article.

5. Programs/projects following streamlined procedures:

a) Emergency investment projects funded by ODA grants shall be subject to regulations laid down in Article 42 in the Law on Public Investment;

b) Investment programs/projects funded by ODA grants, and technical assistance projects funded by ODA grants to prepare for investment projects, shall be subject to regulations laid down in point c, d, dd, e, g and h of clause 1 of this Article.

Article 9. Policy to receive the budget support

1. Order and procedures for deciding the policy to receive general budget support are prescribed as follows:

a) The Ministry of Finance shall be in charge of formulating the document on budget support which specifies the central budget’s balance, proposed plans to cover budget deficit; shall adhere to the principles of budget support loans used as capital expenditures, and get comments from the Ministry of Planning and Investment and other concerned agencies;

b) On the basis of synthesizing these comments, the Ministry of Finance shall be in charge of reporting to the Prime Minister on the necessity, objectives, socio-economic efficiency, total capital, funding sources and structure, conditions for receiving budget support, benefits and obligations, funding methods and arrangements for management;  

c) The Prime Minister shall consider and decide on the policy to receive the budget support, which will serve as a basis for negotiation, signing and receipt of the general budget support as per regulations.

2. Order and procedures for decision on the policy to receive the central budget support for implementation of the national target programs approved by competent authorities shall be subject to the following regulations:

a) Upon receipt of the decision on approval of the policy for investment in the national target program, the managing agency of the national target program sends an Official Letter to the Ministry of Planning and Investment and Ministry of Finance, enclosing the Document on the budget support, clearly specifying the  context,  necessity,  targets, total  fund,  funding  sources  and  structure,  other  resources; conditions  for  receiving  the  budget  support,  benefits  and  obligations;  funding  methods  and  arrangements  for management;  plans to use loans to serve the objectives of the national target program; principles, criteria, list of the projects funded by the budget support, plans to assign loan use plans to ministries, central and local authorities as a basis to allocate midterm and annual public investment capital;

b) The Ministry of Finance evaluates the level of concession, impacts, financial mechanism of the loan; capability to receive the budget support for accomplishment of targets determined in the national target program; conditions for receiving the budget support, and sends the evaluation report to the Ministry of Planning and Investment;

c) After incorporating opinions of the Ministry of Finance referred to in point b of this clause and opinions of concerned agencies, the Ministry of Planning and Investment takes the lead and send a report to the Prime Minister to seek consent to the policy to receive the central budget support for implementation of the national target program, including the principles, criteria, financial mechanism, list of projects funded by that budget support, plans to assign loan use plans to ministries, central and local authorities;  

d) The Prime Minister considers approving the policy to receive the budget support, principles, criteria, financial mechanism, detailed list of projects, plans to allocate financing to ministries, central and local authorities;

dd) According to the Prime Minister’s decision, the managing agency of the project carries out procedures for appraising and deciding to invest in a particular project funded by the budget support that is part of the national target program as provided by relevant law. 

Article 10. Participation in regional programs and projects

1. In cases where a managing agency of a regional program or project has not been identified, based on the foreign donors' proposal on the participation in regional programs and projects, the Ministry of Planning and Investment shall take the lead and cooperate with concerned agencies in seeking the Prime Minister’s approval of Vietnam’s participation in such regional programs/projects and designation of the managing agency in charge.

2. In cases where a managing agency of a regional program or project has been identified, the managing agency shall send the Ministry of Planning and Investment an official letter, enclosing the regional program/project document of the foreign donor, clearly specifying the interests and duties of Vietnam as a participant. The Ministry of Planning and Investment shall take the lead and cooperate with concerned agencies in seeking the Prime Minister’s approval of Vietnam’s participation in such regional program/project.

3. Where a foreign donor provides ODA or concessional loan to develop and implement a program/project within the framework of a regional program/project, based on the Prime Minister’s decision on Vietnam’s participation in regional programs/projects as per clause 1 and 2 of this Article, the managing agency shall elaborate, appraise and make investment policy decision and investment decision for the programs/projects funded by ODA and concessional loans in accordance with Chapter II herein.

Article 11. Private sector access to ODA and concessional loans

1. The private sector may access ODA and concessional loans in accordance with policies on provision of ODA and concessional loans of foreign donors.

2. Methods for the private sector to access and use ODA and concessional loans:

a) Access to ODA and concessional loans that ministries, central authorities and provincial People's Committees use to finance project preparation and bidding for investor selection, or finance the state contribution in PPP projects in accordance with applicable provisions on PPP and specific international treaties, specific agreements on ODA and concessional loans;

b) Access and use ODA and concessional loans through participation in private sector support programs/projects of managing agencies.

Chapter II

DRAFTING, APPRAISING, AND MAKING INVESTMENT POLICY DECISION AND INVESTMENT DECISION FOR PROGRAMS/PROJECTS FUNDED BY ODA, CONCESSIONAL LOANS; INVESTMENT PROGRAMS, PROJECTS FUNDED BY ODA GRANTS AND TECHNICAL ASSISTANCE PROJECTS FUNDED BY ODA GRANTS FOR INVESTMENT PROJECT PREPARATION

Section 1. DRAFTING, APPRAISING AND DECIDING ON INVESTMENT POLICY FOR THE PROGRAM/PROJECT

Article 12. Decision making authority on investment policy for the programs/projects funded by ODA and concessional loans

1. a) The power to issue an investment policy decision for a national target program, project of national importance and public investment program funded by ODA and concessional loans shall be subject to the regulations laid down in clause 1 and 2 of Article 17 in the Law on Public Investment.

2. The Prime Minister shall be accorded authority to decide on investment policy for the following programs/projects:

a) Investment programs and projects funded by ODA loans and concessional loans, except for those specified in clause 1 of this Article;

b) Investment programs and projects funded by ODA grants in the following cases: Category A and Category B investment programs and projects; programs and projects accompanied by policy frameworks; programs and projects in the fields of security, national defense and religion; sector-wide approach programs; procurement of goods subject to permission of the Prime Minister;

c) Technical assistance projects funded by foreign donors’ ODA and concessional loans to prepare investment projects.

3. The head of the managing agency shall decide on investment policy for Category C investment programs/projects funded by ODA grants.

Article 13. Proposal for programs/projects funded by ODA and concessional loans

1. The Prime Minister shall be accorded authority to approve program/project proposals.

2. Order and procedures for approval of a program/project proposal:

a) Ministries, central and local regulatory authorities prepare the proposal for the program/project funded by foreign ODA and concessional loan for submission to the Ministry of Planning and Investment, the Ministry of Finance and concerned agencies in accordance with law; and give clear explanations as to why they make the proposal for the tied loan of the foreign donor (if any);

b) The Ministry of Finance takes the lead for determining the grant elements, evaluating the impact of new loans on the public debt safety thresholds, determining applicable domestic financial mechanism, and reporting to the Prime Minister in accordance with the Law on Public Debt Management and concurrently send to the Ministry of Planning and Investment;

c) The Ministry of Planning and Investment sends a written request to consult concerned agencies on the program/project proposal. After incorporating the comments of the Ministry of Finance as prescribed in point b of this clause and the comments of concerned agencies, the Ministry of Planning and Investment evaluates the necessity of the programs/projects; makes the preliminary assessment of the feasibility, socio-economic effectiveness, environmental impacts (if any), and the impacts of the programs/projects on the midterm public investment plans; thereby selecting the suitable program/project proposals and submitting them to the Prime Minister for approval; 

d) The Prime Minister considers and approves the program/project proposal against the following aspects: Name of the program/project; name of the foreign donor and co-donor (if any); name of the managing agency; binding terms and conditions of the foreign donor (if any), expected objectives and scale; expected duration; total estimated investment and fund structure; domestic financial mechanism; on-lending method; proposals to use ODA and concessional loan for purchase of reserve supplies and equipment (if any) and other relevant contents; 

dd) The Ministry of Planning and Investment officially notifies the foreign donor of the Prime Minister’s decision on approval of the program/project proposal.

3. Dossier and time limit for reviewing the program/project proposal:

a) Dossier: Program/project proposal made by using the sample specified in Appendix II hereto; the written request that the managing agency submits to the competent authority for approval of the program/project proposal; other relevant documents (if any); 

b) The number of dossiers to be submitted to the Ministry of Planning and Investment is 08 sets;

c) The number of dossiers to be submitted to the Ministry of Finance is 03 sets;

d) The time limit for review and submission of the program/project proposal to the Prime Minister is 45 days from the date that Ministry of Planning and Investment and the Ministry of Finance receive complete and valid dossiers.

Where the dossier is invalid or the content of the program/project proposal does not conform to the provisions of clause 3 of this Article, the Ministry of Planning and Investment and the Ministry of Finance must send their written feedback to request the managing agency to fine tune the program/project proposal within 05 days.

4. Criteria for selection of the program/project proposal:

a) Compatibility with the relevant socio-economic development strategies or master plans in accordance with law on socio-economic development master plans and plans; public debt safety thresholds and repayment capacity; orientation for attraction of ODA and concessional loans; policies and orientations for priorities in ODA and concessional loan provision of foreign donors; 

b) Assurance of socio-economic and environmental effectiveness and sustainability;

c) Compatibility with the availability of ODA, concessional loans, and counterpart fund;

d) No overlap with the contents of programs/projects whose proposals, investment policies or investment decisions have already been approved by competent authorities.

Article 14. Order and procedures for making investment policy decision for programs/projects funded by ODA and concessional loans

1. Order and procedures for making investment policy decisions for national target programs or projects of national importance funded by ODA and concessional loans shall be subject to the regulations laid down in clause 5 of Article 25 in the Law on Public Investment.

2. Order and procedures for making investment policy decisions for public investment programs funded by ODA and concessional loans under the Government’s decision-making authority shall be subject to the regulations laid down in Article 22 and clause 6 of Article 25 in the Law on Public Investment.

3. Order and procedures for making investment policy decisions for category A projects funded by ODA and concessional loans shall be subject to the regulations laid down in Article 23 and clause 7 of Article 25 in the Law on Public Investment.

4. Order and procedures for making investment policy decisions for programs/projects funded by ODA and concessional loans under the Prime Minister’s decision-making authority, except category A projects, shall be subject to the regulations laid down in clause 8 of Article 25 in the Law on Public Investment, specifically as follows:

a) The managing agency sends the Ministry of Planning and Investment an investment policy proposal report;

b) The Ministry of Planning and Investment presides over evaluating the investment policy proposal report, funding sources and availability, and submitting it to the Prime Minister; 

c) The Prime Minister considers granting the investment policy decision.

5. Order and procedures for making investment policy decisions for programs/projects under the decision-making authority of heads of managing agencies shall be subject to the regulations laid down in clause 9 of Article 25 in the Law on Public Investment, specifically as follows:

a) The managing agency consults the Ministry of Planning and Investment, the Ministry of Finance and other concerned agencies about the investment policy proposal report;

b) Based on the comments of agencies, the managing agency undertakes the evaluation of the report and decides on the investment policy.

6. The Ministry of Planning and Investment officially notifies the foreign donor of the decision of approval of the investment policy for the program/project, and the funding request.

7. In case there are changes to the pre-feasibility study report and the report on investment policy proposal compared to the contents of the approved program/project proposal, the managing agency shall supplement explanation on the changes compared to the approved program/project proposal in the letter of transmittal for appraisal of the feasibility study report and report on investment policy proposal for the program/project as prescribed in point b of clause 1 of Article 15 in this Decree. 

8. The preliminary assessment of environmental impacts is part of the pre-feasibility study report or investment policy proposal report. The competent authority shall consult that preliminary assessment of environmental impacts to decide on the investment policy in accordance with Article 99 in the Law on Public Investment.   Preliminary environmental impact assessment shall be subject to the Government's regulations elaborating on implementation of several Articles of the Law on Public Investment.

Article 15. Dossiers, contents and time limit for appraisal of feasibility study reports and reports on investment policy proposals for the programs/projects funded by ODA and concessional loans 

1. Appraisal dossiers of feasibility study report and report on investment policy proposal for the program/project funded by ODA and concessional loan: 

a) A letter of transmittal requesting the competent authority’s approval of the investment policy for the program/project using the sample given in Appendix IVa to this Decree;

b) The written approval of the program/project proposal from the competent authority;

c) Report on the internal appraisal results of the managing agency regarding the investment policy of the program/project funded by ODA or concessional loan; 

d) The pre-feasibility study report or the report on investment policy proposal for the program/project that is prepared using the sample given in Appendix IIIa, IIIb and IIIc to this Decree; 

dd) Reports on performance review of the program/project implementation in the previous period (for follow-up programs and projects in the new phase);

e) Comments of the provincial People’s Council on category A projects funded by ODA and concessional loans of which pre-feasibility study report is prepared by the provincial People’s Committee in accordance with point c of clause 1 of Article 23 in the Law on Public Investment;

g) Other relevant documents (if any).

2. The required minimum number of appraisal dossiers to be submitted to the Appraisal Council or the lead appraising agency is 10 sets.

3. Appraisal contents of the investment policy for public investment programs funded by ODA and concessional loans:

a) Alignment with criteria for determination of public investment program;

b) Regulatory conformance of the dossier submitted for appraisal;

c) Alignment with objectives of regional and territorial socio-economic development strategies, plans; relevant master plans in accordance with the laws on planning;

d) The contents specified in Article 29 of the Law on Public Investment, including basic details of the program as follows: objectives, scope, scale, beneficiaries, duration, time lines and fund allocation plan; funding sources and availability; mobilization of funding and other resources;  

dd) Socio-economic effectiveness, environmental protection and sustainable development.

4. Appraisal contents of the investment policy for programs/projects funded by ODA and concessional loans:

a) Necessity of investment;

b) Regulatory conformance of the dossier submitted for appraisal;

b) Alignment with objectives of the relevant strategies, plans and master plans in accordance with law on planning;

d) Alignment with project classification criteria in accordance with the Law on Public Investment;

dd) The contents specified in Articles 30 and 31 of the Law on Public Investment, including appraisal of basic details of the project, such as objectives, scale, form of investment, scope, location, area of land to be used, duration, time lines, plan for selection of main technologies, environmental protection solution, funding sources and availability; cost recovery and debt repayment possibility for loans; and fund allocation plan;

e) Socio-economic effectiveness, environmental protection and sustainable development.

5. The lead appraising agency for the pre-feasibility study report and report on investment policy proposal for programs and projects shall consult agencies assigned to appraise funding sources and availability in accordance with Article 33 of the Law on Public Investment in the process of appraising pre-feasibility study report and report on investment policy proposal.

6. Time limits for appraising the report on investment policy proposal and pre-feasibility study report of the program or project from the date the Appraisal Council or the lead appraising agency receives complete and valid dossier are as follows 

a) National target programs: No more than 60 days;

a) Public investment programs (except national target programs): No more than 45 days;

c) Category A projects: No more than 45 days;

d) Projects other than those prescribed in point a, b and c of this clause: No more than 30 days;

In case the dossier is invalid or the content of the pre-feasibility study report or report on investment policy proposal of the program or project does not conform with the provisions of Article 29, 30 and 31 of the Law on Public Investment, within no later than 10 days from the day on which the dossier is received, the Appraisal Council or the lead appraising agency shall send written feedback to request the proposing agency to fine tune the pre-feasibility study report or report on investment policy proposal.

7. Where it is necessary to extend time limit for appraisal of feasibility study report and report on investment policy proposal for the program/project, the Appraisal Council or the lead appraising agency shall: 

a) Report to the Prime Minister to seek his consent to the extension of time limit for appraisal of pre-feasibility study reports and reports on investment policy proposal of programs and projects falling under the approving competence of the National Assembly, Government, and Prime Minister;

b) Report to the head of the managing agency to allow the extension of time limit for appraisal of the report on investment policy proposal for the programs/projects falling under the investment policy approving competence of the managing agency;

c) The extended period shall not exceed the corresponding appraisal time specified in clause 6 of this Article. 

8. The Appraisal Council or the lead appraising agency for pre-feasibility study report of category A projects and the report on investment policy proposal for the program or project shall send the appraisal report as per the following regulations: 

a) For public investment programs: Submit it to the managing agency and competent authority in charge of making investment policy decision;

b) For category A projects falling under the approving competence of the Prime Minister: Comply with the provisions of clause 4 of Article 23 in the Law on Public Investment to submit it to the Prime Minister;

c) For other projects not specified at point a and b of this clause: Submit it to the appraising agency and competent authority in charge of making investment policy decision.

Article 16. Dossiers submitted to the competent authority and time limit for making the investment policy decision for the program/project funded by ODA and concessional loan

1. Dossiers submitted to the competent authority for making the investment policy decision for the program/project funded by ODA and concessional loan, including:

a) Documents specified in clause 1 of Article 15 herein, including the letter of transmittal, the pre-feasibility study report and report on investment policy proposal specified at points a and b of clause 1 of Article 15 in this Decree have been fine tuned according to the appraisal report of the Appraisal Council or the lead appraising agency;   

b) The appraisal report by the Appraisal Council or the lead appraising agency on investment policy for the program/project shall be prepared using the sample given in Appendix IVb enclosed with this Decree. 

2. The required number of dossiers submitted to competent authorities to seek their decisions on investment policies for programs/projects, subject to clause 1 of this Article, shall be 05 sets.

3. From the date the competent authority deciding on investment policy receives complete and valid dossiers, the time limit for making the investment policy decision shall be as follows:

a) Public investment programs (except national target programs): No more than 20 days;

b) Category A projects: No more than 15 days;

c) Projects other than those prescribed in point a and b of this clause: No more than 10 days.

4. Within 15 days from the date the competent authority makes investment policy decision of the program or project, the managing agency shall send such approved investment policy to the Ministry of Planning and Investment and the Ministry of Finance.

Article 17. Prior activities

Prior activities performed in the phase of preparation for implementation of programs/projects funded by financing for investment preparation, including:

1. Formulate a resettlement policy framework and submit it to a competent authority for approval in the process of appraising the pre-feasibility study report or the program/project document, and making investment decision;

2. Prepare a contractor selection plan; prepare dossiers of invitation for expression of interest, dossiers of invitation for pre-qualification, bidding documents, and requests for proposals.

Article 18. Major contents of the investment policy for the programs/projects funded by ODA and concessional loans

1. Name of the program/project.

2. Name of the project donor and co-donor.

3. Name of the managing agency.

4. Objectives and scale.

5. Location.

6. Project execution duration.

7. Total investment and fund structure (denominated in Vietnamese dong, converted into base currency), including:

a) ODA grants, ODA loans, concessional loans;

b) Counterpart fund.

8. Domestic financial mechanism and on-lending method.

9. Implementation method (as for projects funded by ODA grants).

10. Activities funded by ODA loans or concessional loans that are other than those prescribed in clause 2 of Article 6 herein (if any).

Article 19. Amendments to the investment policy for the programs/projects funded by ODA and concessional loans

1. The competence to make amendments to investment policy for the programs/projects shall be subject to clause 1 of Article 34 in the Law on Public Investment.

2. For public investment programs, projects of national importance:

a) Public investment programs to which amendments lead to changes to major contents of the investment policy decision as provided in Article 18 herein: Comply with the regulations laid down in point a of clause 2 of Article 34 in the Law on Public Investment;

b) Projects of national importance to which amendments lead to changes to major contents of the investment policy decision as provided in Article 18 herein: Comply with the regulations of the Law on Public Investment and the Government’s Decree on order and procedures for appraisal of projects of national importance, supervision and assessment of investment.

3. For programs/projects falling under the Prime Minister's delegated authority to make investment policy decisions:

a) Where the adjustment of the project implementation duration does not change the remaining main contents of the investment policy decision; the decreasing adjustment of ODA loan or concessional loan incurs financial obligations and does not change the remaining main contents of the investment policy decision, the managing agency shall send a written document and report on the reasons for such adjustment in order for the Ministry of Planning and Investment to incorporate opinions of the Ministry of Finance for submission to the Prime Minister to seek his decision;

b) Where the amendment to a program or project leads to a change in the main contents of the decision on investment policy, other than provided in point a of clause 3 of this Article, the managing agency shall adjust the investment policy according to the order and procedures specified in clause 4 of Article 14 in this Decree.

Required components of the request dossier to be submitted to the competent authority and the time limit for making the decision on amendment to the investment policy for the programs/projects shall be subject to Article 15 and 16 herein. The followings should be clarified: Reasons for amendment to the investment policies for the program/project; amendments corresponding to main contents of the pre-feasibility study report or investment policy proposal report. 

4. As for the program/project under the authority to decide on the investment policy of the head of the managing agency, if any amendment leads to any change in main contents of the investment policy decision, the managing agency shall amend the investment policy according to the order and procedures specified in clause 5 of Article 14 herein.

5. Where total investment in the program/project is adjusted due to exchange rate fluctuations; the reduction in ODA and concessional loan does not incur financial obligations and lead to any change in the remaining main contents of the investment policy decision referred to in Article 18 herein, the managing agency shall not follow the order and procedures for decision on amendment to the investment policy.

Section 2. DRAFTING, APPRAISING AND DECIDING ON INVESTMENT IN PROGRAMS/PROJECTS

Article 20. Decision-making authority on investment in the programs/projects funded by ODA and concessional loans

1. The Prime Minister shall be accorded authority to issue the decision on investment in the following programs and projects funded by ODA and concessional loans:

a) National target programs and projects of national importance for which the investment policy decision is made by the National Assembly;

b) Public investment programs that have already obtained investment policy decisions from the Government;

c) Public investment programs and projects funded by ODA and concessional loans of foreign donors in the national defence, security and religion fields and other programs/projects subject to the Government’s regulations.

2. The head of the managing agency shall make investment decision for programs and projects funded by ODA or concessional loans that are not prescribed in clause 1 of this Article and take responsibility for the investment efficiency of programs and projects.

Article 21. Procedures for drafting, appraising and making decision on investment in the programs/projects funded by ODA and concessional loans

1. Comply with the regulations laid down in Article 41 in the Law on Public Investment.

2. The feasibility study reports of the programs, projects are prepared in accordance with Article 44 of the Law on Public Investment and related regulations, taking into account the contents of the sample provided by foreign donors, while ensuring the consistency with the investment policy decision and harmonizing the procedures between Vietnam and foreign donors.

3. Dossiers, contents, time limit for appraisal and decision on investment in programs and projects shall 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) In case the program/project is eligible for full or partial on-lending of ODA or concessional loan from the state budget, the project owner shall enclose proofs of the financial capacity, debt repayment plans and other documents prescribed by regulations of law on public debt management;

b) Documents related to the program/project in foreign language must have attached Vietnamese translations;

c) Within 15 working days from the day on which a decision on investment in the program/project is issued by a competent authority, the managing agency shall notify the foreign donor and project owner of the decision, and send it to the Ministry of Planning and Investment, the Ministry of Finance and relevant agencies (original or notarized copy) together with the feasibility study report which has been approved and bears the seal of the managing agency for their implementation supervision and cooperation.

Article 22. Amendments to the programs and projects funded by ODA and concessional loans

1. The competence to make amendments to programs/projects shall be subject to clause 3 of Article 43 in the Law on Public Investment.

2. Amendments to the programs and projects are made in the cases specified in clauses 1 and 2 of Article 43 in the Law on Public Investment.

3. For projects of national importance: Comply with the regulations of Article 43 in the Law on Public Investment and the Government’s Decree on the order and procedures for appraisal of projects of national importance, supervision and evaluation of investment.

4. For category A, B and C programs/projects:

a) Contents of, order and procedures for formulating and appraising amendments to the programs/projects shall comply with Article 43 in the Law on Public Investment and the Government's Decree elaborating on a number of Articles of the Law on Public Investment;

b) Where the amendment to a program/project in progress leads to a change in the main contents of the decision on investment policy, the managing agency shall adjust the investment policy according to Article 19 in this Decree before following the order and procedures for amendment to the programs/projects.

5. Where amendments to the contents of programs/projects in progress result in the amendment, complement or renewal of specific international treaties, agreements on ODA and concessional loans:

a) Based on the revised investment policy decision and investment decision in the program/project approved by the competent authority, the managing agency shall cooperate with the proposing agency to sign the updated specific international treaties and specific agreements on ODA and concessional loans;

b) Where amendments to the contents of programs/projects do not result in the amendment to the main content of the investment policy decision, the managing agency shall adjust the investment decision by incorporating opinions of the Ministry of Planning and Investment, the Ministry of Finance, and relevant agencies as a basis to amend, update and renew specific international treaties and specific agreements on ODA and concessional loans.

Chapter III

FORMULATING, APPRAISING, DECIDING ON POLICY FOR IMPLEMENTATION AND APPROVING DOCUMENTS OF TECHNICAL ASSISTANCE PROJECTS AND NON-PROJECT ASSISTANCE FUNDED BY ODA GRANTS

Article 23. Authority to approve the policy for implementation and documents of the technical assistance project and non-project assistance

1. The Prime Minister shall be empowered to approve the policy for implementation of technical assistance projects and non-project assistance funded by ODA grants in the following cases: Projects associated with a policy framework; projects or non-project in the field of national defense, security and religion; procurement of goods subject to the Prime Minister’s permission in accordance with relevant law.

2. The head of the managing agency shall:

a) Approve the documents of the technical assistance project, non-project assistance based on the implementation policy decision of the Prime Minister for the cases specified in clause 1 of this Article; the Prime Minister’s decision on policy for participation in the regional programs/projects;

b) Approve the documents of the technical assistance project, non-project assistance for the cases that are not specified in clause 1 of this Article and not required to follow the order and procedures of the implementation policy decision.

Article 24. Preparation of documents of technical assistance projects and non-project assistance

The managing agency shall cooperate with foreign donors in formulating the documents of projects and non-projects by using the samples given in Appendix V and VI herein.

Article 25. Order and procedures for decision on investment policy for technical assistance projects and non-project assistance under the Prime Minister's decision-making authority

1. The managing agency shall send the competent authority a written request for approval of the policy, enclosing project or non-project documents sent to the Ministry of Planning and Investment.

2. Within 05 working days from the day on which valid documents prescribed in clause 1 of this Article are received, the Ministry of Planning and Investment shall send written enquiries to relevant authorities in order for them to respond within 10 days from the receipt of the enquiries.

3. Within 05 days from the day on which the written comments are received from concerned agencies, the Ministry of Planning and Investment shall incorporate them into a report to be submitted to the Prime Minister to seek his decision.

4. The Prime Minister shall consider granting the investment policy decision for the project or non-project, including the following information:

a) Name of the project or non-project;

b) Donor, co-donor (if any):

c) Objectives;

d) Total fund and funding structure (e.g. ODA grants and counterpart fund);

dd) Implementation method.

5. In case the project or non-project documents are found to be incomplete after incorporating those comments, the Ministry of Planning and Investment shall request the managing agency to complete them.

Article 26. Order and procedures for appraising and deciding approval of technical assistance project and non-project documents

1. Appraisal of the projects and non-projects referred to in clause 1 of Article 23 of this Decree by their managing agencies is not required. The head of the managing agency shall decide whether to approve the project or non-project documents according to the decision on implementation policy.

2. Regarding projects and non-project assistance other than those specified in clause 1 of Article 23 of this Decree:

a) The managing agency shall preside over the appraisal process; send written enquiries, enclosing project or non-project documents and other relevant documents (if any) to the Ministry of Planning and Investment, the Ministry of Finance and concerned authorities;

b) Within 10 days from the day on which valid documents are received, the consulted agencies shall send their written comments thereon, focusing on the following contents: necessity, key objectives and outcomes; funding sources and availability, financial mechanisms; conditions of the foreign donor (if any) and responding capacity of Vietnam;

c) The appraisal contents of the project or non-project assistance include: the compatibility of the project and non-project assistance with the specific development goals of ministries, agencies, localities, implementing agencies and beneficiaries; the appropriateness of the implementation method; fund and the availability of fund, financial mechanism; the rationality of funding structure for major categories; commitments, prerequisites and other conditions of the foreign donor and the stakeholders (if any); effectiveness, the ability to apply the results in real practices and sustainability beyond the project or non-project life cycle; unanimous opinions or discrepancies amongst the parties;

d) The appraisal dossiers include: The project or non-project owner’s letter of transmittal for approval of the project/non-project document; draft project or non-project document; written comments of concerned agencies; and other relevant documents (if any), such as the donor’s written endorsement for the project or non-project contents, notice of commitment to consider funding, memorandum of understanding with the donor, report of the appraisal mission prepared upon the request of the donor;

dd) Based on the appraisal results, the head of the managing agency shall decide whether the project or non-project documents are approved;

e) The appraisal time limit for the project or non-project document shall not exceed 20 days of receipt of completed and valid dossiers;

g) Where a project/non-project is funded by an ODA grant worth USD 200,000 or less, the head of the managing agency may approve the project or non-project document without having to consult concerned agencies.

3. After the project or non-project document has been approved, the managing agency shall inform the Ministry of Planning and Investment, the Ministry of Finance and other concerned agencies, enclosing the approved project or non-project document bearing the affixed seal of the managing agency for implementation supervision and coordination.

4. Main contents of the decision on approval of technical assistance project and non-project document:

a) Name of the project or non-project;

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

c) Name of the managing agency and project owner;

d) Implementation duration and location;

dd) Objectives, activities and results;

e) Arrangements for management;

g) Implementation method;

h) Total fund and funding structure, including ODA grants (in base currency and VND equivalent) and counterpart funds (in VND);

i) Others.

5. The Ministry of Planning and Investment shall send an official notice and funding request to the foreign donor.

Article 27. Revision of the implementation policy decision and the decision on approval of technical assistance project and non-project documents

1. For the implementation policy decision:

a) The managing agency shall deliver to the Ministry of Planning and Investment the written documents informing the changes in the contents of the implementation policy decision prescribed in clause 4 of Article 25 herein, enclosing the revised project or non-project document;

b) The Ministry of Planning and Investment shall take the lead and consult concerned agencies on relevant changes, and discuss with the foreign donor on changes in the scale of ODA grant (if any), and incorporate the comments into a report submitted to the Prime Minister;

c) The Prime Minister shall consider granting the decision on the policy to implement the project or non-project assistance.

2. For the decision on approval of the project or non-project document:

a) The managing agency shall send the Ministry of Planning and Investment, the Ministry of Finance and relevant agencies a written document to inform them about changes in the contents of the decision on approval of the project or non-project document, enclosing the updated one;

b) On the basis of the comments of the Ministry of Planning and Investment, the Ministry of Finance and concerned agencies, the head of the managing agency shall decide whether to approve these changes;

c) Where a project/non-project is funded by an ODA grant worth USD 200,000 or less, the head of the managing agency may revise the decision on approval of the project or non-project document without having to consult concerned agencies;

d) Where a change in the project or non-project document leads to disqualification of the approval competence specified in Article 23 herein, the managing agency shall follow the order and procedures for decision on the implementation policy stipulated in Article 25 herein;

dd) Regarding projects and non-project assistance specified in clause 1 of Article 23 of this Decree, the head of the managing agency shall consult the decision on revision of the implementation policy prescribed in clause 1 of this Article to decide to approve the changes to the project or non-project document without having to consult concerned agencies.

Chapter IV

SIGNING OF INTERNATIONAL TREATIES, AGREEMENTS ON ODA AND CONCESSIONAL LOANS

Section 1. SIGNING OF INTERNATIONAL TREATIES ON ODA AND CONCESSIONAL LOANS

Article 28. Basis for proposal to sign international treaties on ODA and concessional loans

1. The basis for proposing the signing of a framework treaty on ODA or concessional loan is the result of mobilization, development and cooperation strategies and policies, priority areas for the use of ODA or concessional loans agreed between Vietnam and foreign donors, or decisions to approve the investment policy of programs/projects if specific programs/projects are involved.

2. Basis for proposal to sign specific international treaties on ODA and concessional loans:

a) For programs/projects funded by ODA, concessional loans, and programs/projects funded by ODA grants: The approved feasibility study reports; the decisions on investment in programs/projects; Prime Minister’s decisions on approval of on-lending (with respect to appropriate programs/projects);

b) For technical assistance projects and non-project assistance funded by ODA grants: The decision on approval of project or non-project documents, and project or non-project documents.

Article 29. Authorities proposing to sign international treaties on ODA and concessional loans

1. The People’s Supreme Court, the People’s Supreme Procuracy, State Audit Agency, Ministries, ministerial agencies, and Governmental agencies, may propose to the Government conclusion of specific international treaties on ODA grants for their programs and projects other than those specified in clause 3 of this Article.

2. The Ministry of Finance may propose to the Government conclusion of framework and specific international treaties on ODA loans, concessional loans or ODA grants for mixed programs/projects funded by ODA loans or concessional loans, except for ODA grants specified in clause 3 and 4 of this Article.

3. The State Bank of Vietnam may propose to the Government conclusion of specific international treaties on ODA grants that are not associated with loans granted by international banks and financial institutions represented by the State Bank of Vietnam.

4. The Ministry of Planning and Investment may propose to the Government conclusion of framework and specific international treaties on ODA grants for programs/projects not specified in clause 1, 2 and 3 of this Article.

Article 30. Order and procedures for signing, amending, supplementing and renewing international treaties on ODA and concessional loans

1. Order and procedures for signing, amending or renewing international treaties on ODA financing and concessional loans shall be subject to the regulations laid down in the Law on International Treaties.

2. In urgent cases where it is required that international treaties on ODA financing and concessional loans are signed for the Government and obtain consent from competent authorities, the negotiation and signing of international treaties on ODA loans , concessional loans for the Government shall be subject to the following regulations:

a) According to the provisions of Article 28 of this Decree and the request of the managing agency, the Ministry of Finance shall request the foreign donors or lenders to submit draft international treaties on ODA or concessional loans;

b) The Ministry of Finance shall consult the Ministry of Foreign Affairs, the Ministry of Justice and relevant agencies on the draft international treaties on ODA loans and concessional loans. The consulted agencies shall reply in writing to the Ministry of Finance within 05 days from the date of receipt of complete consulting dossiers;

b) Based on the comments of concerned agencies, the Ministry of Finance shall formulate the plans for negotiation of international treaties on ODA loans and concessional loans and submit them to the Prime Minister. Transmittal dossiers for negotiation of international treaties shall be subject to the regulations laid down in Article 11 in the Law on International Treaties;

d) The Ministry of Finance shall be in charge of, and coordinate with the Ministry of Foreign Affairs, the Ministry of Justice and concerned agencies in, negotiating with foreign donors or lenders about draft international treaties on ODA and concessional loans; promptly reporting to the Prime Minister on problems that arise in the course of negotiation and proposing remedial measures;

dd) Based on the negotiation results, the Ministry of Finance shall seek the Government’s decision to sign international treaties on ODA loans and concessional loans. Transmittal dossiers on proposal to sign international treaties shall be subject to the regulations laid down in clause 1, 2 and 6 of Article 17 in the Law on International Treaties;

e) Based on the Government’s decision, the Minister of Finance or the person authorized to act on the Government's behalf shall sign international treaties on ODA loans and concessional loans with foreign donors or lenders; 

g) Within 10 days from the day on which the international treaty is signed domestically by both parties, or from the day on which the mission signing the international treaty abroad arrives in Vietnam, the proposing agency shall send the Ministry of Foreign Affairs an original copy of the international treaty; the Vietnamese translation in the event that the international treaty in foreign language is signed.  

3. In case where the amendment, supplementation or renewal of a specific international treaty on ODA loan or concessional loan in the name of the Government is related to the contents already approved by the competent authority in the decision on revision of investment policy; does not give rise to more debt repayment obligations of the Government of Vietnam, or does not require a new international treaty to be signed for revision or amendment purposes, the Ministry of Finance may decide not to consult the Ministry of Foreign Affairs, the Ministry of Justice and other concerned agencies when seeking the Government’s decision on amendment, supplementation or renewal of the international treaty.  Transmittal dossiers on revision, supplementation or renewal of the international treaty shall be subject to the regulations laid down in clause 6 of Article 54 in the Law on International Treaties, except for the comments of concerned agencies. When being consulted, concerned agencies shall reply in writing within the period of 05 days of receipt of complete consultation documents.

4. Where programs/projects funded by ODA or concessional loans, which are signed under multiple international treaties corresponding to the project’s phases:

a) For the international treaty signed for the first loan: Comply with the provisions of clause 1 or clause 2 of this Article;

b) For the international treaty signed for the subsequent loans: Based on the managing agency's proposal regarding necessity of the next loan; ODA loan and concessional loan limits approved by the competent authorities in the investment decision; project progress and disbursement results under the signed international treaties, the Ministry of Finance shall take the lead and coordinate with the managing agency and concerned agencies in determining the value of the next loan, discuss and agree with the donors and proceed with the order and procedures specified in clause 1 or clause 2 of this Article.

5. Where an international treaty requires the legal opinion of the Ministry of Justice, after receiving complete dossiers in accordance with existing regulatory provisions on granting legal opinions, the Ministry of Justice shall carry out procedures for granting legal opinions as per regulations.

Section 2. SIGNING OF AGREEMENTS ON ODA AND CONCESSIONAL LOANS

Article 31. Basis for proposal to sign agreements on ODA and concessional loans

1. For framework agreements on ODA and concessional loans: The basis for proposing the signing thereof is the result of mobilization, development and cooperation strategies and policies, priority areas for the use of ODA or concessional loans agreed between Vietnam and foreign donors, or investment decisions of programs/projects if specific programs/projects are involved.

2. For specific agreements on ODA and concessional loans: The basis for proposing the signing thereof is framework international treaties or framework agreements on ODA and concessional loans (if any) and the decision on investment in the program/project.

3. For specific agreements on ODA grants: In case the donor requests to sign, the basis for signing an agreement on ODA grant is the framework international treaty on ODA grant (if any) and project-non-project document or feasibility study report (for investment projects) approved by the competent authorities.

Article 32. Authorities proposing to sign agreements on ODA and concessional loans

1. The People’s Supreme Court, the People’s Supreme Procuracy, State Audit Agency, Ministries, ministerial agencies, and Governmental agencies, may propose to the Prime Minister the signing of specific agreements on ODA grants for their programs and projects, except for those specified in clause 3 of this Article.

2. The Ministry of Finance may propose to the Prime Minister the signing of framework and specific agreements on ODA loans, concessional loans or ODA grants for programs/projects funded by ODA loans or concessional loans, except for ODA grants specified in clause 3 of this Article.

3. The Ministry of Planning and Investment may propose to the Prime Minister the signing of framework and specific agreements on ODA grants for the programs/projects not specified in clause 1 and 2 of this Article.

Article 33. Order and procedures for signing, amending, supplementing and renewing agreements on ODA and concessional loans

1. Order and procedures for signing of agreements on ODA and concessional loans:

a) According to the provisions of Article 31 of this Decree and the request of the managing agency, the Ministry of Finance shall request the foreign donors or lenders to submit draft agreements on ODA or concessional loans;

b) The Ministry of Finance shall consult the Ministry of Foreign Affairs, the Ministry of Justice and relevant agencies on the draft agreements on ODA loans and concessional loans. The consulted agencies shall reply in writing to the Ministry of Finance within 05 days from the date of receipt of written requests for comments and relevant documents;

c) The Ministry of Finance shall be in charge of, and coordinate with the Ministry of Foreign Affairs, the Ministry of Justice and concerned agencies in, negotiating with foreign donors or lenders about draft agreements on ODA and concessional loans;

d) Based on the negotiation results, the Ministry of Finance shall submit proposal to the Prime Minister for decision on signing the agreement on ODA and concessional loans with the foreign donors or lenders;

dd) Based on the Prime Minister’s decision, the Minister of Finance or the person authorized to act on the Government's behalf shall sign agreements on ODA loans and concessional loans with the foreign donors or lenders; 

e) Regarding agreements on mixed capital: The Ministry of Finance shall perform the order and procedures for signing prescribed under this clause;

g) For programs/projects funded by ODA and concessional loans, which are signed under multiple agreements corresponding to the project’s phases: Based on the loan value specified in the respective framework international treaty already signed, the Ministry of Finance shall be in charge of, and cooperate with the managing agency and concerned agencies in, performing the order and procedures for signing prescribed under this clause.

2. Order and procedures for amending, supplementing and renewing agreements on ODA and concessional loans shall be as follows:

a) The managing agency shall submit a request to the Ministry of Finance for amending, supplementing or renewing the agreement on ODA and concessional loans;

b) The Ministry of Finance shall consult the Ministry of Foreign Affairs, the Ministry of Justice and concerned agencies on the request for amending, supplementing or renewing agreements on ODA loans and concessional loans. The consulted agencies shall reply in writing to the Ministry of Finance within 05 days from the date of receipt of written requests for comments and relevant documents;

c) The Ministry of Finance shall report to the Prime Minister for approval of the content of amendments, supplements and renewal of the agreements on ODA and concessional loans;

d) Based on the Prime Minister’s decision, the Ministry of Finance shall proceed with procedures to amend, supplement and renew the agreement on ODA and concessional loans with foreign donors or lenders;

dd) In case amendments, supplements or renewal of agreements on ODA and concessional loans lead to changes to the contents of decision on investment policy for programs and projects that the competent authority has approved: The managing agency shall adjust the investment policy in accordance with Article 19 and the investment decision under Article 22 herein before proceeding with the order and procedures for amending, supplementing and renewing agreements on ODA loans and concessional loans as per point a, c and d of this clause;

e) In case amendment, supplementation or renewal of agreements on ODA and concessional loans is closely associated with the contents of amendments, supplements or renewal of the corresponding framework international treaty approved by the competent authority, the Ministry of Finance shall carry out the order and procedures for amending, supplementing or renewing agreements on ODA or concessional loans as per point c and d of this clause.

3. Order and procedures for amending, supplementing and renewing agreements on ODA and concessional loans shall be as follows:

a) The agency proposing the signing shall discuss and reach an agreement with the foreign donor on the draft agreement;

b) The agency proposing the signing shall consult the Ministry of Foreign Affairs, the Ministry of Justice and concerned agencies on the draft agreement. The consulted agencies shall reply in writing to the Ministry of Finance within 15 days after receiving written requests for comments and relevant documents;

c) The agency proposing the signing shall get back to the foreign donor to finalize the draft agreement and submit it to the Prime Minister for signing;

d) After obtaining the Prime Minister's approval of the signing, the head of the agency authorized by the Prime Minister shall sign the agreements with the foreign donors; 

dd) For amendments and supplements to an agreement on ODA grant: On the basis of synthesizing the comments of the Ministry of Foreign Affairs, the Ministry of Justice and concerned agencies, the proposing agency shall submit the draft to the Prime Minister for decision.

4. Where an agreement on ODA and concessional loan requires the legal opinion of the Ministry of Justice, after receiving complete dossiers in accordance with existing regulatory provisions on granting legal opinions, the Ministry of Justice shall carry out procedures for granting legal opinions as per regulations.

5. In case the donor does not request to sign agreement on ODA grant, on the basis of the project/non-project document approved by the competent authority, on the basis of the project/non-project document approved by the competent authority, the managing agency or the State Bank of Vietnam (when it involves international financial institutions and banks where the State Bank of Vietnam acts as the representative) and the donor exchanges aide memoire on commitment to provide and receive ODA grant for project and non-project assistance implementation in accordance with applicable regulatory provisions; and concurrently send an original copy to the Ministry of Planning and Investment, the Ministry of Finance and concerned agencies for supervision and coordination.

6. If the donor requests to sign an agreement on implementation of the project or non-project assistance, the managing agency shall draft, negotiate and sign the agreement with the donor on the principle of no contradiction to international treaties, agreements on ODA and concessional loans and applicable regulatory provisions.

Chapter V

MANAGEMENT OF THE PROGRAM/PROJECT/NON-PROJECT ASSISTANCE

Article 34. Arrangements for management over programs/projects/non-project assistance

Depending on the scale, nature, and conditions, capacity for program/project management, regulations on management of ODA and concessional loans of the foreign donor, the investment decision maker shall decide on any of the following arrangements for program/project management:

1. For Investment programs/projects: Comply with the law on public investment management and construction investment management.

2. For technical assistance projects and non-project assistance funded by ODA grants:

a) The managing agency shall directly manage the project or assign an affiliated unit to act as the project owner and administer the implementation of the program, project or non-project assistance. For technical assistance projects and non-project assistance funded by an ODA grant worth USD 200,000 or less, the managing agency and project owner is not required to establish a Project Management Unit but may use their own human resource to manage and administer project and non-project assistance implementation;

b) Foreign donors directly manage the entire program/project or non-project assistance: Where the program or project documents or specific international treaties/agreements on ODA and concessional loans stipulate that foreign donors directly manage the entire programs/projects or non-project assistance, the head of the managing agency or project owner shall assign their subordinate units to coordinate with foreign donors in monitoring the progress and quality, leveraging and using the outputs of the programs/projects or non-project assistance;

c) Foreign donors directly manage a part of the programs/projects or non-project assistance: Where the program or project documents or specific international treaties/agreements on ODA and concessional loans stipulate that foreign donors directly manage a part of the programs/projects or non-project assistance and the Vietnamese side manage the rest, the managing agency or project owner shall decide to establish a Project Management Unit to manage the work undertaken by the Vietnamese side in accordance with Vietnam's applicable regulations and commitments with foreign donors.

3. For other programs and projects, the managing agency shall decide to apply one of these following forms:

a) Establishing a new Project Management Unit;

b) Using the existing Project Management Unit to manage new programs and projects: The managing agency and project owner must issue a decision on supplementing management task in relation to new programs and projects for the existing Project Management Unit;

c) The project owners manage the programs and projects themselves.

4. Establishing a Project Management Unit to manage and implement a large-scale program/project, involving high technology application or related to national defense and security; a program/project with special funding sources or management model that needs a Project Management Unit, a program/project that is required to establish a Project Management Unit under an international treaty or agreement on ODA and concessional loan.

5. Project owners shall employ capable personnel to manage and implement small-scale projects and projects participated by the community.

6. Hire consultants to manage a part of or the entire implementation of programs and projects.

Article 35. Project management

1. Within 30 days after the issuance of the investment decision or the decision on approval of the project document, the head of the managing agency shall issue a decision to establish a Project Management Unit by using the sample given in Appendix VII hereto. In cases where the project owner has full legal personality, the head of the managing agency may authorize the project owner to issue a decision on the establishment of the Project Management Unit (except for specialized Project Management Units, regional Project Management Units established under the regulations on management of construction investment).

2. Where a new Project Management Unit is established under the provisions of point a of clause 3 of Article 34 in this Decree, the decision to establish a project management unit shall be enclosed with documents specifying the organizational structure, functions, tasks, and entitlements of the project management unit; and job description of some key positions thereof.

3. In case of using the existing Project Management Unit for the new programs and projects according to the provisions of point b of clause 3 of Article 34 in this Decree: Pursuant to the decision on the establishment of the Project Management Unit, the head of the managing agency or the project owners shall complement and adjust the functions and tasks of the existing Project Management Unit, open new account and obtain new seal to manage new programs or projects.

4. Where the project owners manage the programs/projects on their own account as prescribed in point c of clause 3 of Article 34 herein, on the basis of the decision of the head of the managing agency to assign the project owner to manage the project implementation, within 30 days since the investment decision is issued, the project owner shall issue the decision to assign additional tasks to the subordinate unit, individual to perform the management activities in accordance with the existing regulatory provisions. Accordingly, there must be at least an officer in charge of management and an officer in charge of financial issues, who work on a part-time or full-time basis and must have professional skills and qualifications suitable for the position held.

5. Within 15 days after the decision to establish the project management unit is issued, the head of the managing agency or the project owner having legal personality shall be authorized by the head of the managing agency to issue the regulations on the organization and operation of the project management unit. Where an international treaty or agreement on ODA and concessional loan for the program/project provides for organizational structure, duties and entitlements of the project management unit, such provisions must be fully elaborated and reflected in the regulations on organization and operation of the project management unit.

Article 36. Responsibilities and authority of the managing agency in program/project management and implementation

1. The decision on organizational structure for the management and implementation of the program/project, including: project owner; steering committee of the program and project (if necessary).

2. Approve the 05-year implementation plan for the program/project; compile and approval annual plans for program/project implementation.

3. Direct the procurement process in accordance with applicable regulatory provisions, international treaties, agreements on ODA and concessional loans on procurement.

4. Organize the monitoring and inspection of the plan implementation; supervise and evaluate the performance of implementation and disbursement of funds; ensure progress, quality and achievement of set objectives in accordance with regulatory provisions on public investment and regulations on monitoring and evaluation under this Decree.

5. Bear the additional costs incurred because of human errors, wastefulness, corruption and misconducts in management and use of ODA and concessional loans under its management in accordance with regulations of law on public investment.

6. Perform other duties and entitlements in accordance with law, specific international treaties and agreements on ODA and concessional loans for programs/projects.

Article 37. Responsibilities and authority of project owners in program/project management and implementation

1. Organize the structure for program/project management and implementation according to the decision of the managing agency.

2. Take responsibility for effective management and use of ODA, concessional loans and counterpart funds of programs/projects from preparation and implementation through operation phase.

3. Disburse funds, manage funds and assets of the programs/projects in case where the project owners manage and implement the programs/projects by themselves.

4. Formulate and submit master plans and annual plans for program/project implementation.

5. Formulate quarterly operation plans serving the management, monitoring and evaluation of the program/project.

6. Carry out the procurement process in accordance with applicable regulatory provisions on procurement, specific international treaties on ODA and concessional loans.

7. Negotiate, conclude and supervise the implementation of contracts, and resolve difficulties within their competence.

8. Cooperate with the local government in compensation for site clearance and resettlement in accordance with law and the specific international treaty or agreement on ODA or concessional loan (for construction projects).

9. Organize the monitoring and assessment of the program/project in accordance with law on supervision and assessment of public investment and regulations of this Decree, ensuring progress, quality and achievement of set objectives.

10. Perform accounting, account finalization and audit of the program/project in accordance with regulatory provisions; make reports on closing and account finalization of the program/project; audit and hand-over assets and documents of the program/project, and ensure compliance with regulations on project closing of the specific international treaty or agreement on ODA and concessional loans.

11. Take full responsibility for every loss, wastefulness, corruption, and misconduct that occurs during the implementation of the program/project if they cause economic, social, environmental damage, or affect the overall effectiveness of the program/project.

12. Regarding a program/project eligible for full or partial on-lending from the state budget, the project owner shall repay the on-lent amount in full and on time in accordance with on-lending terms agreed with the Ministry of Finance or the on-lending agency.

13. Perform other duties and entitlements in accordance with law, specific international treaties and agreements on ODA and concessional loans for the programs/projects.

14. Take responsibility to notify the Ministry of Finance of the designated service banks for its fund withdrawal and disbursement.

15. Bear responsibility before law and the managing agency within their rights and obligations prescribed in this Decree and other regulatory provisions.

Article 38. Responsibilities and entitlements of project management units in program/project management and implementation

1. Responsibilities and entitlements of the project management unit are assigned by the project owner under the decision on project management unit establishment. The project owner may authorize the project management unit to issue decisions or sign documents within the project owner’s competence in the process of program/project management and implementation. The authorization must be specified in the decision to establish project management unit or made into a specific authorization letter by the project owner.

2. The project management unit may be assigned to manage multiple programs/projects as long as it is accepted by the project owner and ensure that: Each program/project is not interrupted and is managed and accounted for in accordance with applicable regulatory provisions. If the project management unit is not capable of some management and supervision tasks, they may hire consultants to perform such tasks provided that it is accepted by the project owner.

3. The project management unit shall perform the tasks assigned by the project owner and be accountable to the project owner, including:

a) Formulate and submit master plans and annual plans for program/project implementation;

b) Prepare and implement the program/project;

c) Carry out activities related to procurement, contract management and compensation for site clearance and resettlement;

d) Disburse funds, manage funds and assets of the program/project;

dd) Monitor and evaluate the implementation of the program/project;

e) Prepare the acceptance and transfer of the completed program/project; finish payment, account finalization and audit work, transfer assets of the program/project; prepare the completion report using the sample given in Appendix X hereto and account finalization report of the program/project; follow regulations on project closing in the applicable international treaty or agreement on ODA and concessional loan;

g) Perform other tasks assigned by the project owner within the framework of the program/project.

4. Perform other duties and entitlements in accordance with law, specific international treaties and agreements on ODA and concessional loans for the programs/projects.

5. Bear responsibility before law and the managing agency within their rights and obligations prescribed in this Decree and other regulatory provisions.

Article 39. Organization and operation regulations of the project management unit

1. Within 15 days from the day on which the competent authority issues the decision to establish the project management unit, the Director of the project management unit shall submit organization and operation regulations to the managing agency or the project owner authorized by the managing agency referred to in clause 1 of Article 35 for approval according to the sample given in Appendix VIII hereto. The managing agency and/or the project owner shall send these Regulations to the Ministry of Planning and Investment, the Ministry of Finance, concerned agencies and foreign donors within 05 days from the day on which the Regulations are approved.

2. With respect to construction investment programs and projects, the organization and operation Regulations of the managing agency shall be subject to legislative regulations on construction.

3. The organization structure of the project management unit:

a) Appointment to the key positions of the project management unit shall be made by the managing agency under the decision to establish the project management unit, including: Director, Deputy Director (if any), Chief Accountant or Accountant in charge. The Director of the project management unit shall be accountable to the project owner and/or the managing agency for management and administration of the project management unit, and implementation of the project in accordance with law and specific international treaties or agreements on ODA and concessional loans already signed;

b) Where a new project management unit is founded: Based on the contents, scale, nature, extent of its operation, and arrangements for management of implementation, the project management unit must be fully staffed by properly qualified and experienced members to ensure the effective and sustainable management of implementation of the projects. The Director of the project management unit shall propose the organization structure of the project management unit, which may be composed of functional units in charge of day-to-day administration, human resource and training, planning, procurement, finance, monitoring and supervision work in the organization and operation regulations of the project management unit;

c) Where the project management unit that is in operation is assigned to manage the new programs/projects: The Director of the project management unit shall complement and adjust the tasks in the organization and operation regulations of the project management unit to match assigned duties, and submit revised and updated tasks to the managing agency and the project owner to seek their decision;

d) Where the project owner manages the program/project on their own, the project owner shall assign duties in writing to subordinate officers to take part in management and implementation of the programs/projects.

4. Personnel of the project management unit shall be recruited, appointed and discharged. Functions, tasks, powers, remuneration package (salaries, bonuses, allowances,...) are specified according to terms of assignment of jobs appropriate for positions and relevant law. Nominating, hiring and appointing officeholders who are not on the payroll of the project owner or the managing agency to hold posts at the project management unit shall be aligned with the contents of the program/project document already approved by the competent authority and comply with relevant law.

5. Seal and account of the project management unit:

a) The project management unit shall be allowed to use its own seal according to the regulatory provisions or the seal of the managing agency or the project owner according to the regulations of the managing agency or the project owner to serve the management and maintenance of the program/project;

b) The project management unit shall be entitled to open Vietnamese dong and/or foreign currency accounts of the programs/projects at commercial banks or the State Treasury for respective funding sources of the programs/projects in accordance with regulations of law and specific international treaties, agreements on ODA and concessional loans already signed with foreign donors.

6. Operating budget of the project management unit: The operating budget of the project management unit shall be allocated by the counterpart fund for preparation and implementation of the programs or projects specified in clause 2 of Article 44 in this Decree, or funded by ODA grants in accordance with the provisions of law and specific international treaties, agreements on ODA and concessional loans already signed with foreign donors.

7. The management and use of assets assigned by the managing agency or project owner to the project management unit for management and implementation of projects/programs:

a) Assets of programs/projects assigned by the managing agency or project owner to the project management unit for management and implementation of these projects/programs must be used economically, effectively, and serve correct purposes and beneficiaries in accordance with law and project documents, specific international treaties or agreements on ODA and concessional loans already signed with foreign donors;

b) In case where the consultant or consulting organization or the contractor transferring, donating or assigning the assets to the project management unit, the project management unit shall send the managing agency or project owner a written request for management and use thereof during the course of implementation of the program/project, and transfer thereof to the managing agency or project owner after the program/project is completed.

8. Upon completion of the program/project and dissolution of the project management unit:

a) The deadline for completion of the program/project funded by ODA or concessional loan is prescribed in the investment decision, the decision on approval of project documents, specific international treaty or agreement on ODA and concessional loan already signed with the foreign donor;

b) Within the maximum duration of 06 months from completion of the program/project, the project management unit is obliged to prepare and send the managing agency or the project owner the report on completion of the program/project in order for the project owner to submit that report to the managing agency. Program/project completion report shall be made on the basis of the report on completion of the program/project under law and the specific international treaty or agreement on ODA and concessional loan;

c) The project management unit shall transfer assets of the program/project of which the custody is awarded the managing agency or the project owner by the competent authority in accordance with law;

d) After the completion report or the financial report of the program/project is approved by the managing agency or the project owner, and the transfer of assets to the managing agency or the project owner is completed, the managing agency shall issue the decision on completion of the program/project and the decision on resolution of the project management unit;

dd) In case where it is necessary to settle financial obligations and complete all required procedures, the project management unit shall send the managing agency or the project management unit the letter of transmittal to request the issuance of the decision to allow prolonging of the activities of the project management unit, and the provision of adequate budget for these activities;

e) Where the project management unit manages various programs/projects, the managing agency or the project owner shall issue the decision on completion of each program/project, and adjust the corresponding functions and duties of the project management unit.

Article 40. Hiring of consultants for program/project management

1. The program/project management consultant shall perform the tasks and commitments under the contract with the project owner while complying with relevant applicable regulatory provisions.

2. The project owner shall select program and project management consultants through bidding and signing consultancy contracts according to applicable regulations. When hiring a program/project management consultant, the project owner must designate an affiliated specialized unit or appoint a unit in charge of inspecting and supervising the consultant’s contract performance.

Article 41. Formulation, appraisal, approval and assignment of the public investment plans funded by foreign funding sources for programs/projects funded by ODA and concessional loans

1. Formulation, appraisal, approval and assignment of the medium-term public investment plans funded by ODA and concessional loans shall be subject to the regulations laid down in Chapter III of the Law on Public Investment and the Government’s regulations detailing some articles of the Law on Public Investment.

2. ODA and concessional loans of foreign donors applying the domestic financial mechanism for on-lending thereof to domestic public non-business units shall comply with the provisions of international treaties, agreements on ODA and concessional loans, and the Law on Public Debt Management and other applicable regulatory provisions.

3. Programs and projects already obtaining investment policy decisions from competent authorities, and new projects, have to ensure that the time limit for disbursement of capital for implementation of category-A, category-B and category-C projects is 6, 4 and 3 years, respectively. In case of failing to meet the aforesaid time limit, the Prime Minister shall decide the implementation duration of projects funded by the central budget capital.   

The implementation duration of a program/project funded by ODA or concessional loan is determined from the time of allocating fund to the program or project by a competent authority.

Article 42. Preparing and approving master plans for implementation of programs/projects funded by ODA and concessional loans

1. The master plan for implementation of a program/project shall cover its entire duration, all components, items, activities, relevant funding sources (e.g. ODA, concessional loan, counterpart fund) and schedule.  

2. Within 30 working days from the day on which the specific international treaty or agreement on ODA and concessional loans is signed, based on the feasibility study report, program/project document approved by a competent authority, the decision on investment in the program/project, and the specific international treaty or agreement on ODA and concessional loan, the project owner shall coordinate with the foreign donor in preparing or reviewing, updating the master plan for program/project implementation before submitting it to the managing agency for approval.

3. Within 05 working days from the day on which the master plan for program/project implementation is approved, the managing agency shall send the decision on approval enclosed with the master plan to the Ministry of Planning and Investment, Ministry of Finance, concerned agencies, and the foreign donor to facilitate their monitoring, evaluation, and cooperation in implementing the program/project.

Article 43. Preparing and approving annual plans for implementation of programs/projects funded by ODA and concessional loans

1. Based on the master plan for the program/project implementation already approved by the managing agency; Based on the actual disbursement and disbursement plan specified in the applicable specific international treaties, agreements on ODA and concessional loans, the project owner shall review and submit annual implementation plan to the head of the managing agency for approval. The annual implementation plan for programs and projects funded by ODA and concessional loan is also part of the annual investment plan of the managing agency.

2. The content of the annual program/project implementation plan shall contain detailed information about its components (divided into technical assistance component and construction component), main activities, items, funding sources including counterpart fund, and tentative schedule.

3. The annual plan approved by the managing agency is the basis for the project owner to formulate quarterly plans serving the management, monitoring and evaluation of the program/project implementation.

4. Every year, when formulating the socio-economic development plan and state budget estimate in accordance with regulations in effect, the managing agency shall incorporate the annual program/project implementation plan in its annual public investment plan and annual budget plan. Based on the managing agency’s annual budget plan, the Ministry of Planning and Investment shall formulate the capital plan and coordinate with the Ministry of Finance in submitting the annual socio-economic development plan and annual budget plan to the National Assembly for approval.

5. Procedures for assigning tasks in the annual program/project implementation plan shall comply with applicable regulatory provisions on assigning annual socio-economic development tasks.

6. Within 05 working days from the day on which the annual plan for program/project implementation is approved, the project owner shall send the decision on approval enclosed with the annual program/project implementation plan to the managing agency and seek agreement from the managing agency to send it to Ministry of Planning and Investment, concerned agencies, and the foreign donor to facilitate their monitoring, evaluation, and cooperation in implementing the program/project.

7. Regarding a program/project eligible for full on-lending from the state budget: Every year when formulating the socio-economic development plan and state budget estimate, the project owner shall formulate the program/project implementation plan and submit it to the managing agency for approval of the ODA or concessional loan financing plan and submit it to the Ministry of Planning and Investment, the Ministry of Finance, and the authorized on-lending agency for supervision. The managing agency and the project owner shall provide sufficient counterpart fund according to the progress of the program/project.

8. Regarding a program/project eligible for partial on-lending from the state budget: Depending on the nature of each component (full grant or on-lending), the project owner shall apply the procedures for preparing and submitting the program/project plan for each component in accordance with clauses 1, 2, and 7 of this Article.

Article 44. Counterpart funds for preparing and implementing the program/project

1. The counterpart fund must be sufficiently provided in a timely manner and according to the set schedule to prepare and implement the program/project (including prior activities, if any). The funding sources, level, and mechanism of the counterpart fund must be suitable for the expenditures of the program/project agreed between the managing agency and the foreign donor, and specified in the feasibility study report and program/project document as appraised and approved by a competent authority.

2. Counterpart funds shall cover:

a) Operating costs of the project management unit (e.g. salaries, bonuses, allowances, offices, work equipment, administrative costs);

b) Costs of design appraisal, examination of overall budget estimates, completion of procedures for investment, construction and other necessary administrative procedures;

c) Costs of contractor selection;

d) Costs of workshops, conferences, training in management and implementation of the program/project;

dd) Costs of receiving and imparting international technologies, experience and skills;

e) Costs of communication, advertising and community activities;

g) Taxes, customs fees, insurance premiums according to applicable regulations;

h) Interest expenses, deposits, commitment fees and other relevant fees payable to the foreign donor;

i) Costs of receiving and transporting equipment domestically (if any);

k) Costs of account finalization and verification of final accounts;

l) Compensation, support and resettlement costs;

m) Costs of some basic activities of the program/project (e.g. survey, technical design, construction of certain items, procurement of certain equipment);

n) Costs of monitoring and evaluation; quality assurance and control, acceptance, hand-over and account finalization of the program/project;

o) Contingencies and other reasonable expenses.

3. Regarding a program/project eligible for full grant from the state budget: The managing agency shall allocate counterpart  fund  in  its  annual  budget  estimate  based  on budget  decentralization  arrangement  and  other  legitimate financial sources, which are clearly classified into capital expenditures and recurrent expenditures corresponding to spending  items  of  the  program/project;  ensuring  sufficient  and  timely  counterpart  fund  as  specified  in  the  feasibility study report and program/project document approved by a competent authority, the decision on investment, regulatory provisions on state budget and applicable specific international treaty or agreement on ODA and concessional loans.

4. Regarding a program/project eligible for full on-lending:

a) For localities eligible for full on-lending: The counterpart funds shall be provided by local government budgets;

b) For enterprises and public non-business units eligible for full on-lending: The project owner shall provide the counterpart fund at their own expense or seek the competent authority’s decision to ensure the adequate counterpart fund for the program/project according to regulations before signing the on-lending agreement.

5. For a programs/project with the hybrid financial mechanism (the combined grant and on-lending mechanism): The managing agency or the project owner shall allocate sufficient counterpart fund in accordance with applicable regulatory provisions before signing the on-lending agreement.

6. Regarding the program/project eligible for grant from the state budget that is not approved or concluded at the same time as the annual budget estimates, and hence not provided with counterpart fund: The managing agency shall request the Ministry of Planning and Investment and the Ministry of Finance in writing to take actions within their jurisdiction, or seek the competent authority’s decision on supplementation of the annual budget estimate.

If the counterpart fund plan is not made at the same time as the annual budget plan, the managing agency shall provide it from the allocated capital. If the managing agency is not able to provide counterpart fund, it shall request the  Ministry  of  Planning  and  Investment  and  the  Ministry  of  Finance  in  writing  to  seek  approval  of  capital  advance, which will be then deducted from the next year’s budget plan.

7. Norms of the counterpart fund shall be aligned with the state budget spending norms and conform to the regulations laid down in relevant legislation.

Article 45. Taxes and fees imposed upon programs/projects

Taxes and fees imposed upon programs and projects shall comply with applicable regulatory provisions on taxes and fees, and international treaties to which the Socialist Republic of Vietnam is a signatory.  Where there are discrepancies between Vietnam's domestic law and a signed international treaty on the same issue, the latter shall prevail.

Article 46. Compensation, support and resettlement

Compensation, support and resettlement in the course of implementation of programs/projects shall comply with applicable regulatory provisions and international treaties on ODA and concessional loan to which the Socialist Republic of Vietnam is a signatory.  Where there are discrepancies between Vietnam's domestic law and a signed international treaty on the same issue, the latter shall prevail.

Article 47. Procurement

1. The contractor selection shall be carried out in accordance with the international treaty between Vietnam and the foreign donor; where there are discrepancies on contractor selection between the international treaty to which Vietnam is a signatory and the Law on Bidding, such international treaty shall prevail. If the international treaty does not provide for contractor selection procedures, the contractor selection process shall be carried out in accordance with the Law on Bidding.

2. Delegation procedures for submission, appraisal and approval of bidding contents shall comply with Vietnam's regulations on bidding. The content of appraisal and approval shall comply with the international treaty under the rules prescribed in clause 1 of this Article.

Article 48. Surplus funds

1. Surplus funds may be used only after capital is fully provided for successfully accomplishing the objectives of a project or project items at an investment stage with respect to the project involves various staged loans.  

2. In cases where it is really necessary to use the surplus funds to promote the efficiency without altering major objectives specified in the investment policy decision of the ongoing program/project:

a) The managing agency shall be in charge of determining the necessity and efficiency to decide the use of the surplus funds; send the written proposal or agreement for use of the surplus funds of the foreign donor and other relevant documents to the Ministry of Planning and Investment; 

b) The Ministry of Planning and Investment shall take the lead and incorporate the comments of the Ministry of Finance, other relevant agencies and foreign donors into a report prepared for submission to the Prime Minister to seek his decision.

3. Where there is the demand for the surplus funds for implementation of a new program/project, the managing agency shall send a letter of transmittal to the Ministry of Planning and Investment, enclosing the report on the investment policy proposal for that program/project. The Ministry of Planning and Investment shall take the lead and coordinate with concerned agencies in working with the foreign donor to reach agreement on use of the surplus funds and the applicable financial mechanism, and proceeding with the procedures for decision on the investment policy stipulated in Article 14, 15, 16, 17 and 18 herein.

4. Cancellation of surplus funds: The managing agency shall synthesize comments of the Ministry of Planning and Investment and request the Ministry of Finance to cancel the surplus funds of the program/project. Based on the proposal of canceling the surplus funds, the Ministry of Finance shall inform the donor of the cancellation of surplus funds.

In case the cancellation incurs fund cancellation or other fees, the managing agency shall synthesize the comments of the Ministry of Planning and Investment and request the Ministry of Finance to cancel the surplus funds of the program/project. Based on the managing agency's proposal, the Ministry of Finance shall report to the Prime Minister for permission to cancel the surplus funds before informing the donor of the cancellation.

Article 49. Construction management, acceptance, hand-over, audit and account finalization

1. Regarding a construction project, the appraisal of the feasibility study report; the approval of the investment project; the appraisal and approval of the construction design; the grant of construction permit, construction quality management, acceptance, hand-over, project warranty and insurance shall comply with applicable regulatory provisions on construction management and international treaties on ODA and concessional loan to which the Socialist Republic of Vietnam is a signatory. Where there are discrepancies between Vietnam’s domestic law and the international treaty already in effect on the same issue, then the international treaty shall prevail.

2. Regarding a technical assistance program/project, upon completion, the managing agency shall carry out the acceptance procedures and take necessary measures to continuously operate it and maximize the achievements, as well as comply with applicable regulatory provisions on financial and asset management of the program/project.

3. The audit and account finalization of the program/project shall be carried out in accordance with applicable regulatory provisions and international treaties on ODA and concessional loans to which the Socialist Republic of Vietnam is a signatory, or at the request of the foreign donor. Where there are discrepancies between Vietnam’s domestic law and the signed international treaty on the same issue, the international treaty shall prevail. 

Article 50. Monitoring and evaluation of programs/projects funded by ODA and concessional loans

1. Monitoring, evaluation and supervision of programs/projects funded by ODA and concessional loans:

a) Monitoring, evaluation and supervision of programs/projects funded by ODA and concessional loans shall be subject to the regulations laid down in Article 69, 70, 71, 72, 73, 74, 75, 76 and 77 of the Law on Public Investment and other relevant law. Where there are discrepancies between Vietnam’s domestic law and a signed international treaty on the same issue, the international treaty shall prevail;

b) The Ministry of Planning and Investment shall develop and run the national information system and database on public investment; the information system for monitoring of investment evaluation;

c) Ministries, central authorities and local authorities shall develop and run the national information system and database on public investment; the information system for monitoring of investment evaluation within their remit.

2. Monitoring, evaluation and supervision of programs/projects funded by stand-alone ODA grants independent of any loan and non-project assistance:

a) Monitoring and inspection of the programs/projects and non-project assistance: The project owner shall monitor and inspect the implementation of programs, projects and non-project assistance on the basis of program, project or non-project assistance documents approved by the competent authorities to ensure achievement of the set objectives, and periodically report to the managing agency on the monitoring and inspection results;

b) Evaluation of programs, projects and non-project assistance: Within 3 months from the end of the program, project or non-project assistance, the project owner shall complete the evaluation report for the program, project or non-project assistance, covering the following contents: Implementation process; implementation results of objectives; resources mobilized; benefits from the programs, projects and non-project assistance to beneficiaries; impacts, sustainability; lessons learned and necessary recommendations; responsibilities of concerned agencies, organizations and individuals;

c) Reporting requirements on the implementation of programs, projects and non-project assistance for managing agencies and project owners: Managing agencies and project owners shall send reports according to applicable regulatory provisions.

Chapter VI

STATE ENTERPRISES' USE OF ODA AND CONCESSIONAL LOANS OF FOREIGN DONORS

Article 51. Areas needing and conditions for use of ODA and concessional loans of foreign donors

1. State enterprises may use ODA and concessional loans of foreign donors for investment in the projects in the priority areas referred to in Article 5 hereof according to the industries and business sectors specified in establishment decisions or enterprise registration certificates.  

2. Conditions for use of ODA and concessional loans of foreign donors:

a) State enterprises eligible to use ODA and concessional loans of foreign donors must be enterprises of which charter capital is wholly held by the State and subsidiaries thereof;

b) State enterprises may be granted all foreign ODA and concessional loans on-lent in accordance with the Government’s regulations on on-lending of foreign ODA and concessional loans;

c) State enterprises shall agree to record increases in the state capital contributions in enterprises if the state uses ODA grants associated with ODA and concessional loans (if any) as such capital contributions for implementation of investment projects.

Article 52. Project proposal

1. Order and procedures for approval; documentation requirements and time limits for considering; criteria for selecting the program/project proposal shall comply with the regulations laid down in Article 13 herein.

2. The managing agency shall send the Ministry of Planning and Investment and the Ministry of Finance the proposal for project funded by foreign ODA and concessional loan.

3. The Ministry of Finance shall take the lead for determining the grant elements, evaluating the impact of new loans on the public debt safety thresholds, and reporting to the Prime Minister in accordance with the Law on Public Debt Management and to the Ministry of Planning and Investment.

4. The Ministry of Planning and Investment shall incorporate the comments of the Ministry of Finance, other relevant agencies and foreign donors into a report to be submitted to the Prime Minister to seek his decision.

5. The Prime Minister shall consider approving the proposals for program/project funded by ODA and concessional loan of the state enterprises as per clause 1 and 2 of Article 29 in the Law on Public Debt Management and clause 1 of Article 13 herein.

6. Based on the decision on approval of the project proposal issued by the Prime Minister, the managing agency shall assign concerned agencies and organizations to prepare the project in accordance with relevant regulations.

Article 53. Assent to investment policy

1. Authority to grant assent to investment policy shall be subject to the regulations laid down in Article 30, 31 and 32 of the Law on Investment.

2. Documentation requirements, order and procedures for assent to the investment policy shall be subject to Article 33, 34, 35 and 36 of the Law on Investment.

Article 54. Investment decision

Authority, documentation requirements, order and procedures for decision on investment in the project funded by ODA and concessional loans of foreign donors that are fully on-lent to the state enterprises shall be subject to law on enterprises, construction, management and use of state capital invested in production and business activities at enterprises, and other relevant regulations.

Article 55. Signing, amending, supplementing and renewing international treaties or agreements on ODA and concessional loans

Signing, amending, supplementing or renewing international treaties on ODA and concessional loans shall comply with the regulations laid down in Chapter IV herein and Article 29 of the Law on Public Debt Management.

Article 56. On-lending of ODA and concessional loans

On-lending of ODA and concessional loans shall be subject to the Law on Public Debt Management and the Government’s regulations on on-lending of ODA and concessional loans of foreign donors.

Article 57. Project modification

1. Project modification shall comply with Article 41 in the Law on Investment and the Government's regulations elaborating on and providing instructions for implementation of a number of Articles of the Law on Investment.

2. Where modification of a program/project leads to any increase in total amount of ODA and concessional loan of the foreign donor, the managing agency shall carry out the procedures for modification of the project proposal and assent to the investment policy in accordance with Article 52 and 53 herein.

Article 58. Setting 5-year on-lending limits, developing annual on-lending plans and limits

Setting 5-year on-lending limits, developing annual on-lending plans and limits shall comply with the regulations laid down in the Law on Public Debt Management and relevant regulatory provisions.

Article 59. Management, implementation, supervision, evaluation and reporting regime

Management, implementation, supervision, evaluation and reporting regime shall be subject to regulations currently in force.

Chapter VII

FINANCIAL MANAGEMENT OF ODA AND CONCESSIONAL LOANS

Section 1. OPENING AND MANAGEMENT OF PAYMENT ACCOUNTS

Article 60. Opening payment accounts for programs and projects funded by ODA or concessional loans at State Treasuries and service banks

1. Accounts for ODA and concessional loans:

a) ODA and concessional loans channeled to the state budget shall be managed, accounted for and monitored on the accounts of each budget level;

b) The project owner shall register the project's account opened at State Treasuries or service banks to receive ODA and concessional loans for activities of the programs or projects.

2. Accounts for counterpart funds: The project owner shall open accounts at the State Treasury that is convenient for their transactions (hereinafter referred to as transacting State Treasury) so as to control and payment of counterpart fund (domestic fund) for the project, or at the bank that they choose (if enterprises are fully on-lent these funds).   

Article 61. Criteria for selection of service banks for programs/projects funded by ODA and concessional loans

1. The bank designated as the service bank for the program/project must have experience in managing ODA and concessional loan withdrawal, based on the domestic credit rating of the competent authority, meeting banking professional standards and qualifications, complying with regulations on prudential ratios in banking operations.

2. Having a network of branches suitable to the requirements of the programs/projects.

3. Accepting the responsibilities of service banks as stipulated in Articles 60, 62, 63, 64, 78 and 89 herein.

Article 62. Responsibilities of service banks

1. Carry out the procedures for the Ministry of Finance or project owners to open ODA and concessional loan accounts for the programs or projects in accordance with the international treaties, agreements on ODA and concessional loans signed by the competent authorities, as well as regulations laid down in Chapter VI and VII of this Decree.

2. Monitor and manage accounts, conduct banking transactions and collect fees according to regulations, and report information on accounts of the programs or projects funded by ODA and concessional loans in accordance with Chapter VII and VIII of this Decree.

Article 63. Principles for opening and managing designated accounts for advance payment of ODA and concessional loans

1. The transacting State Treasury or the service bank shall carry out the procedures for opening designated accounts for advance payments (transaction accounts) for project owners or the Ministry of Finance in accordance with the project's payment requirements, ensuring the direct transfer of funds to the projects, not through intermediary accounts. In cases where a project is supported by multiple financial sources, separate accounts must be opened to monitor individual withdrawals.

2. Where the managing agency assigns several implementing units, the project owners shall open branch accounts at the transacting State Treasury or the service bank branch.

3. The currency of the account is the borrowing foreign currency (except for cases where the Ministry of Finance approves the opening of accounts in Vietnamese dong).

4. Management of interest earned on advance payment accounts:

a) Interest earned on advance payment accounts must be separately accounted and used for payment of banking service charges according to regulations. Banking service charges are considered project expenses. Where the amount of interest earned is not enough to cover banking service charges, the project owners shall make a budget estimate and earmark a part of counterpart fund for payment of the charges not yet fully paid.  

b) Upon completion of all spending activities on the designated account, for projects eligible for full grant from the state budget, the project owners shall remit the amount of interest earned thereon into the state budget. For projects eligible for full on-lending, the amount of interest earned shall be the project owners’ revenue. For projects eligible for partial on-lending, the amount of interest earned shall be distributed on a pro rata basis.  

Article 64. Responsibilities of the account opening institutions of programs/projects funded by ODA and concessional loans

1. At the request of the project owners as the account holders, the State Treasury or the service bank shall provide guidance on documentation requirements and procedures for opening payment accounts of the projects and carrying out payment, fund withdrawal and other transactions according to the applicable regulations.

2. The State Treasury or the service bank shall guide and provide project owners with sufficient information for the payment transaction via the State Treasury or service bank system.

3. On a monthly basis, as agreed upon between the account opening institutions and the account holders, and upon the account holders’ request, the account opening institutions shall send the balance statements of the designated accounts to the account holders, including details of the amount in the base currency, the beneficiaries and transaction dates, applicable exchange rates and the equivalent value in VND, opening balance, outflows and the closing balance.

4. On a monthly basis, as agreed upon between the account opening institutions and the account holders, and upon the account holders’ request, the account opening institutions shall notify the account holders of the interest earned on the designated accounts of the projects (if any); banking service charges collected; the difference between interest earned and service fees paid; opening and closing balance.

5. Within 02 working days after being informed of the disbursement by the foreign donors, the account opening institutions shall credit to the accounts of the project and notify the account holders.

6. Before the 10th of each month, the State Treasury and the service bank shall submit a synthesis report to the Ministry of Finance on previous-month changes arising in the ODA, concessional loan accounts opened throughout the entire system. The report must detail project names, project owners, accounts, sub-accounts (each account or sub-account is used for a source of funding); must separate ODA grants and loans; must provide details about the opening balance, total withdrawal from foreign donors in the period, total expenditures in the period, the closing balance, repayments to foreign donors (if any); must provide data on interest earned on ODA and concessional loan accounts in the period, the amount of interest used to cover banking service charges, and closing interest balance.

7. At the end of every fiscal year, account balances shall be reconciled with the project owner.

Section 2. ANNUAL FINANCIAL PLANS FOR ODA AND CONCESSIONAL LOANS

Article 65. Principles of formulation of annual financial plans for programs/projects funded by ODA and concessional loans

1. Based on the medium-term plans approved by the competent authorities, the managing agencies shall formulate annual financial plans for programs/projects funded by ODA and concessional loans.

2. The annual financial plan must be detailed by each program, project, international treaty, and agreement on ODA and concessional loans already signed, including foreign funds granted from the central budget, on-lent foreign funds, and counterpart fund granted from the central government budget, the local government budgets. In cases where the projects are funded according to the pro-rata on-lending approach, the financial plan must reflect the exact ratio of granted and on-lent amounts in line with the financial mechanism approved by the competent authorities.

3. The allocation level of ODA, concessional loans and counterpart fund in the annual budget estimates must be in line with international treaties and signed agreements on ODA and foreign concessional loans, and the actual disbursement capacity of programs and projects funded by ODA, concessional loans.

4. The formulation of annual financial plans for programs, projects funded by ODA and concessional loans shall adhere to regulatory procedures for formulation of annual state budget estimates under the provisions of the Law on State Budget and relevant legislation.

Article 66. Synthesis of financial plans for ODA and concessional loans in the annual state budget estimates

1. For capital investment programs/projects eligible for full grant from the state budget, Ministries, central and local authorities shall propose public investment plans in order for the Ministry of Planning and Investment and the Ministry of Finance to integrate them in the annual state budget estimates.

2. For on-lent loans to provincial People's Committees, the provincial People's Committees shall elaborate the withdrawal plans for on-lent fund, and report to competent authorities as required by the Government's Decree on the management of local governments’ debts, and deliver the plans to the Ministry of Finance to be incorporated into the State budget estimates and report to competent authorities for decision.

3. For on-lending projects of enterprises or public non-business units, the project owners shall deliver to the Ministry of Finance the registration of annual plans on disbursement of on-lent fund, and concurrently send these plans to the managing and authorized on-lending agencies. The Ministry of Finance shall synthesize and submit them to the Government for decision on the limit of ODA and concessional loans for annual on-lending as per regulations.

Article 67. Entry and approval of annual estimates on the Treasury and Budget Management Information System (TABMIS)

1. As for the central budget, based on the budget estimates approved by the National Assembly and assigned by the Prime Minister, the managing agency shall allocate and enter estimated fund for the Ministry of Finance's verification and approval of estimates comprising funds derived from ODA, concessional loans and ODA grants associated with foreign donors' loans on TABMIS as per regulations on TABMIS operation and applicable guiding documents.

2. As  for  local  budget,  based  on  the  budget  estimates  approved  by  the provincial  People's  Councils  and assigned by the provincial People's Committees, the provincial Departments of Finance shall enter and verify capital investment plans and recurrent expenditure estimates from ODA loans and ODA grants associated with foreign donors' loans and concessional loans as targeted local budget support; the Government's ODA loans and ODA grants associated with foreign donors' loans for on-lending to local budget on TABMIS according to applicable regulatory provisions.

3. The entry of estimates into TABMIS must ensure the correct source of granted ODA and concessional loans, targeted local budget support via on-lent ODA and concessional loans to localities as well as assigned portfolio and norms assigned by the competent authorities (for targeted local budget support).

Section 3. EXPENDITURE REVIEW OF ODA AND CONCESSIONAL LOANS

Article 68. Principles of expenditure review

The expenditure review and repayment of ODA and concessional loans (hereinafter referred to as expenditure review) shall comply with the applicable regulations on state budget fund.

1. Expenditure  review  applies  to  all  expenditures  of  the  project  financed  by  ODA  and  concessional  loans, including  those  in  the  form  of  L/C  or  direct  payments  authorized  to  foreign  parties,  ensuring  that  expenditures  are based  on estimates  and  in  compliance  with  the  signed  international  treaties  on  ODA  and  concessional  loans  and applicable domestic regulations on financial management.

2. Expenditure review for the programs and projects funded by foreign ODA and concessional loans that are eligible for full grant from the state budget or partial on-lending on a pro-rata basis are conducted in compliance with applicable regulations on state budget within the approved estimates of foreign fund, annual on-lending plan, or revisions thereof made in the year (if any) approved by the competent authorities.

3. Order, procedures, documentation requirements for expenditure review, the written request for certification of eligible non-business expenditures and the written request for payment of capital expenditures of the project owners shall comply with the regulatory provisions on administrative procedures in the field of state treasury.

4. Time limit for expenditure review of advances and payments in the fiscal year:

a) Statutory advances: Expenditure review must be conducted not later than December 31 of the planning year while the project owner shall send dossier and other evidencing documents to the expenditure review agency by December 31 every year;

b) Payments for completed quantities are subject to expenditure review until January 31 of the following year.

5. For on-lending projects and component subject to credit limits applicable to loan agreements signed in 2017 and earlier: Expenditure review dossiers and procedures for on-lending projects and components subject to credit limits shall follow regulations of credit institutions using on-lent loans and the signed specific international treaties and agreements on ODA and concessional loans. Credit institutions using on-lent ODA or concessional loans shall be legally responsible for the eligibility and validity of extended credit and fees in their statements of expenditures sent to the Ministry of Finance when preparing and submitting foreign fund withdrawal dossier.

6. Expenditure review dossiers and procedures for projects or project components applying the full on-lending mechanism: The on-lending agencies shall comply with clause 3 of this Article and on-lending agreements.

7. Based on the project owner's expenditure review request for all forms of withdrawal, the expenditure review agency shall consult the signed international treaties, agreements on ODA and concessional loans and payment terms set in the agreements (e.g. number of payments, payment period, time of payment and payment conditions) or the approved estimates for non-contractual payments, and the value of each payment, to effect expenditure review to the project owner. Project owners are responsible for the methods of contractor selection, the accuracy and legality of the accepted quantities eligible for payment, norms, unit prices, estimates for different types of work, project quality and compliance with applicable regulations. Project owners are responsible for managing and using funds for the right purposes, right subjects and ensuring cost efficiency and effectiveness. Project owners are responsible for strictly abiding by the legislative regulations on the regime for financial management of ODA and concessional loans. 

Article 69. Expenditure review agencies

1. The State Treasuries at all levels shall control the payment dossiers of projects or project components eligible for full grant from the state budget; projects eligible for partial grant and pro-rata partial on-lending, and on-lending projects of provincial People's Committees.

2. The on-lending agencies authorized by the Ministry of Finance shall control the payment dossiers of the projects or the project components that apply full on- lending mechanism.

3. For other programs and projects which have not been specified in clause 1 and 2 of this Article yet, the Ministry of Finance shall determine the appropriate expenditure review agency, ensuring no overlap where two expenditure review agencies control the same expenditure activity of the project.

Article 70. Forms of expenditure review

1. Prior review of expenditures means that the expenditure review agency inspects and validates the legality and validity of the expenditures before the project owners withdraw fund to pay the contractors or beneficiaries. Prior review of expenditures shall apply to the expenditures not covered by clause 2 of this Article.

2. Post review of expenditures means that the expenditure review agency inspects and validates the legality and validity of the expenditures after the project owners withdraw fund to pay the contractors or beneficiaries. Prior review of expenditures shall apply in the following cases:

a) Payment from designated accounts to contractors or suppliers, except for designated accounts for advance payments owned by the Ministry of Finance that apply prior review of expenditures;

b) Advance payment transfer from designated accounts to secondary accounts for the projects having several management levels;

c) Expenditures from secondary accounts for the project management activities according to the estimates already approved by competent authorities;

d) Payment by L/C for procurement of goods and equipment, except for the last payment.

3. Within 30 days after the withdrawal of fund for payment, the project owner shall prepare the complete payment dossiers for submission to the expenditure review agency for validation as the basis for the next payment. Where it is deemed necessary, the project owner may reach an agreement with the contractor to apply the prior review of expenditures for the expenditures specified in clause 2 of this Article and deliver the agreement to the expenditure review agency for its coordinated implementation.

Section 4. WITHDRAWAL OF FUND, ACCOUNTING MANAGEMENT OF ODA AND CONCESSIONAL LOANS

Article 71. Forms of ODA and concessional loan withdrawal

Forms of ODA and concessional loan withdrawal are as follows:

1. Withdrawal of budget support: ODA and concessional loans shall be disbursed to the state budget for direct budget support or result-based funding.

2. Fund withdrawal for programs or projects: Fund withdrawal for programs or projects shall apply one or some of the following forms: Direct payment, payment by L/C, reimbursement, designated account for advance payment.

Article 72. Time limit for processing withdrawal applications for ODA and concessional loans

1. The time limit for processing withdrawal applications at the Ministry of Finance is 04 working days of receipt of the complete dossier required by law. The time limit for processing statements of expenditures is 07 working days of receipt of the complete dossier required by law.

2. In case where the programs and projects funded by ODA loans and concessional loans finish the last disbursement in the year of project closing, the project owner shall send the withdrawal application to the Ministry of Finance before December 31 (of the planning year) to ensure the disbursement to be completed before January 31 of the following year. In case of a force majeure event which results in failure to complete the disbursement before January 31 of the following year (regardless of the cases where the foreign donor has not notified fund withdrawal though expenditure review and submission of fund withdrawal application are completed before January 31 of the following year), extension of implementation duration and disbursement of medium-term and annual public investment capital shall be subject to clause 2 of Article 68 in the Law on Public Investment.

Article 73. Order and procedures for withdrawal of ODA and concessional loans

1. Order and procedures for fund withdrawal in the form of budget support:

a) The project owners and managing agencies shall take the lead or coordinate with the Ministry of Finance and concerned agencies in fulfilling Vietnam’s commitments as agreed upon with the foreign lenders to satisfy the prerequisites for withdrawal of fund stated in specific international treaties, agreements on ODA and concessional loans already signed;

b) For general budget support, the Ministry of Finance shall prepare withdrawal applications and send them to the foreign lenders, and transfer the withdrawn funds to the state budget for use according to the signed international treaties and agreements on ODA and concessional loans;

c) For central budget support for national target programs, after reaching an agreement with the agencies managing component projects, the agencies managing national target programs shall agree with the Ministry of Finance on the time and amount of ODA and concessional loan withdrawal, and ensure that the disbursed amount is incorporated in the annual financial plans and estimates of programs and component projects; prepare fund withdrawal applications for submission to the Ministry of Finance according to the signed international treaties or agreements on ODA and concessional loans;

ODA and concessional loans that are disbursed to the state budget shall be allocated to component projects for use in accordance with the applicable procedures on managing state budget fund.

2. Order and procedures for fund withdrawal in the form of result-based funding:

a) The project owners and managing agencies shall take the lead and cooperate with concerned agencies in implementing the relevant disbursement linked indicators as agreed upon with the foreign lenders as a basis for fund withdrawal. Project owners are entitled to receive advance fund in accordance with the regulations of the foreign lenders in order to carry out the agreed work towards achieving disbursement linked indicators;

b) The project owners and managing agencies shall take the lead or coordinate with concerned agencies in making reports, documents, or providing documents that prove the fulfillment of the disbursement criteria prescribed in the signed international treaties or agreements on ODA and concessional loans, and sending them through to the foreign lenders. The project owners shall submit fund withdrawal dossiers and applications to the Ministry of Finance according to the regulations of the foreign lenders;

c) The disbursed ODA and concessional loans shall be transferred to the accounts that the agencies implementing programs/projects have opened at the State Treasury as agreed upon with the donors. The spending shall be subject to the applicable state budget management procedures. At the end of each fiscal year, the balance in the estimates of foreign funding sources shall be handled according to the applicable regulations on state budget management; the cash balance on the designated account for advance payment shall continue to be used for activities of the program or project in the subsequent fiscal year according to the regulations;

d) When withdrawing funds under the results-based financing facilities, the project owner may use the exchange rate between Special Drawing Rights (SDR) and Vietnam Dong (VND) published on the donor’s website at the time of preparing withdrawal application.

3. Order and procedures for fund withdrawal in the form of project financing:

a) Forms of withdrawal:

Direct payment: Transfer money directly to the contractors and suppliers of the projects;

Payment by letter of credit (L/C): This payment method means payment by L/C issued by the bank at the request of the project owner under commitments to the contractor or supplier on payment of a certain amount if the contractor or supplier can present a set of valid documents as prescribed in the L/C;

Reimbursement: This method is a form in which a foreign donor pays to reimburse the eligible expenditures paid by the project owner for the project;

Designated account for advance payment: This is a form in which foreign donors pay in advance a sum of money into a designated account opened for the project at the service bank or the State Treasury so that the project owner can take initiative in paying for eligible recurrent expenditures of the project, thereby reducing the number of loan withdrawals;

For programs/projects funded in the form of fund withdrawal to the special account, the investor (project owner) shall report on expenditures and send the letter of transmittal to return proofs of these expenditures each month.  Time limit for returning proofs of expenditures from the special account to the Ministry of Finance shall not exceed 06 months. After the 6-month time limit, if the investor (project owner) does not return these proofs, the method of direct payment for subsequent disbursements shall be applied.  

b) After the foreign donors announce that they have fulfilled the prerequisites for fund withdrawal under international treaties, agreements on ODA and concessional loans, the project owners or the project management units shall submit the dossier on request for fund withdrawal in line with the sample dossier given by the foreign lenders and depending on specific forms of fund withdrawal to the Ministry of Finance;

c) In cases where the foreign lenders request additional documents or only approve part of the fund withdrawal application, the Ministry of Finance or the foreign lenders shall notify the project owner for timely coordination in handling reasonable requests of the foreign lenders;

d) The fund withdrawal dossier to be delivered to the Ministry of Finance: For each fund withdrawal transaction, the project owner or the authorized unit shall compile and deliver to the Ministry of Finance a fund withdrawal dossier in line with each form of fund withdrawal. The sample dossier on fund withdrawal is prescribed in the Appendix IX hereto. Project owners shall be responsible for accuracy and validity of the fund withdrawal dossier, including: expenditure review numbers that help prevent an expenditure from being reviewed or disbursed twice, quantities accepted for payment, norms, unit prices, estimates of costs of different types of work, instructional information about payment to contractors. This dossier must comply with regulatory provisions on financial management of ODA and concessional loans;

dd) Procedures for electronic fund withdrawal meeting prescribed conditions shall be carried out on the website of the Ministry of Finance in accordance with the Government's regulations on provision of online information and public services on websites or web portals.   

4. Introduction and invalidation of specimen signature affixed to ODA and concessional loan withdrawal application: The managing agency shall send the Ministry of Finance the letter of introduction or the notice of invalidation of the specimen signature of the project owner or the project management unit authorized by the project owner for projects applying the pro-rata partial grant or on-lending mechanism; the party receiving on-lend fund shall send the Ministry of Finance the letter of introduction or the notice of invalidation of the specimen signature of the project owner or the project management unit authorized by the project owner for projects applying the full on-lending mechanism.

Article 74. Principles for management of accounting of ODA and concessional loans into the state budget

1. ODA and concessional loans to offset the state budget deficit must be fully and accurately accounted into the state budget.

2. For programs and projects that apply full or partial grant mechanism and subject to expenditure review at the State Treasury, the accounting of ODA and concessional loans fully granted or partially on-lent on a pro-rata basis (for provincial People's Committees) into the state budget shall be carried out by the state treasury where the transactions are conducted.

3. State budget accounting shall be carried out based on the disbursement documents of ODA and concessional loans transferred to agencies, organizations and units for use as notified by foreign donors. For the payment from designated accounts for advance payment, the project owners shall prepare written requests for accounting of ODA and concessional loans for submission to the State Treasury for validation when the expenditure review procedures are taking place. For other forms of fund withdrawal, the project owners shall prepare written requests for accounting of ODA and concessional loans for submission to the State Treasury for validation within 03 working days after receiving the disbursement documents from the foreign donors, and send them all to the Ministry of Finance for monitoring.

Article 75. Accounting of direct budget support

Based on cash receipts or credit advices of the service banks, the State Treasury shall debit ODA and concessional loans, and credit ODA and concessional loan revenues to the state budget as prescribed by regulations; In case of transferring foreign currencies to the centralized foreign currency reserve, the State Treasury shall account them according to regulations on revenues or loans of the state budget in foreign currencies.

Article 76. Accounting of ODA and concessional loans at the State Treasury

The State Treasury shall record revenues and expenditures for ODA and concessional loans eligible for grant and on-lending under programs and projects subject to expenditure review at the State Treasury, specifically as follows:

1. Keep the accounts under the correct source codes of ODA, concessional loans granted from the central budget; targeted local budget support from ODA, concessional loans; ODA, concessional loans on-lent to the localities and make detailed accounting entries by types of ODA grants associated with loans.

2. Permissible advances shall be accounted for as increase in advance expenditures. Recovered advances shall be accounted for as decrease in advance expenditures.

3. Payments for completed quantities are accounted for under actual revenues and expenditures for annual account finalization of the state budget.

4. For expenditures in the annual budget plan which have been reviewed and paid before January 31 of the following year, the State Treasury shall record any increase or decrease in these expenditures in the current year (transaction year). For expenditures which have been reviewed before January 31 of the following year and paid after January 31 of the following year, the project owner shall arrange the following year's plan to record any increase or decrease.

5. Accounting dossiers of such increase or decrease in expenditures shall be subject to the Government’s regulations on administrative procedures in the state treasury field. The project owner shall send the dossier to the transacting State Treasury to confirm the accounting before February 1 of the following year.

Article 77. Accounting of on-lent ODA and concessional loans at the Ministry of Finance

1. For the Government’s ODA and concessional loans on-lent by the Ministry of Finance; loans where the financial institutions and credit institutions are authorized by the Ministry of Finance to act as on-lending agencies to investment programs and projects: Based on the donor's disbursement notice and the project owner’s statement of disbursement, the Ministry of Finance shall account the debt obligations in accordance with the regulations on accounting regime applicable to the central and local governments’ loans and repayments; keep track of statistics of on-lent amounts and Government guarantee.

2. When adjusting accounting entries of programs and projects falling under the accounting mandate of the Ministry of Finance, based on the disbursement advice of the foreign donor, the Ministry of Finance shall make an entry adjustment and send copies thereof to on-lending agencies and project owners to adjust entry data accordingly on financial and account finalization reports on foreign capital.

Article 78. Accounting exchange rate and disbursement exchange rate

1. Direct payments and L/C payments made by the donor in foreign currencies to contractors and suppliers when being accounted in VND shall apply the transfer buying rate at the beginning of the day published by the service bank or the bank where the State Treasury opens the account, or the transfer buying rate at the beginning of the day published by Joint Stock Commercial Bank for Foreign Trade of Vietnam in the absence of a service bank on the date when the donor makes loan to the Government.

2. For direct payments made by the donor in other currencies other than the currency of indebtedness, the actual exchange rate shall be applied between the currency of indebtedness and the currency of payment.

3. In case the project expenditures are made from the designated account for advance payment, expenditures from the designated account for advance payment in VND and in foreign currency shall apply the transfer buying rates for the respective foreign currencies of the service bank or the bank where the State Treasury opens account at the time of payment.

4. When converting advance payment to actual payment for completed volume, the transfer buying rate at the beginning of the day published by the service bank or the bank where the State Treasury opens the account at the time of accounting advance payment shall be applied to account for the recovered advances.

5. The project owner is responsible for determining and applying the exchange rate when requesting the State Treasury where the transactions are conducted to review expenditures or requests accounting for any increase or decrease in expenditures in foreign currencies as per regulations.

6. The project owner shall revaluate the exchange rates for monetary items denominated in foreign currencies related to project activities at the end of the accounting period before preparing financial statements and upon request of the donors according to regulations of the accounting regime applied by the units.

Article 79. Time limit for state budget accounting

1. Expenditures from ODA and concessional loans validated under expenditure review procedures and disbursed until January 31 of the following year shall be accounted at the State Treasury where transactions are conducted before January 31 within 05 working days.

2. The State Treasury shall complete the accounting of expenditures from ODA and concessional loans in the implementation year within 30 days from January 31.

3. The order and procedures for managing the state budget accounting of ODA and concessional loans shall comply with the Government's regulations on administrative procedures in the state treasury field.

Section 5. REPORTING, ACCOUNTING, AUDITING, ACCOUNT FINALIZATION AND INSPECTION

Article 80. Electronic reporting on ODA and concessional loans

1. The managing agency shall publish information on the Program/Project Proposal, Report on investment policy proposal or Pre-feasibility study report, Project documents, Feasibility study report approved by the competent authorities on the National information system and database on public investment and the Ministry of Finance’s web portal. The time limit for reporting is not later than 10 days from the date of approval/decision by the competent authority.

2. The project owner or the project management unit shall submit an electronic report on the National Information System and Database on Public Investment, the Ministry of Finance's web portal on the Program/Project Implementation Master Plan, expected annual disbursement needs, annual allocated capital plans and revision thereof (if any), the disbursement of ODA and foreign concessional loans.

a) As for the Program/Project Implementation Master Plan and revision thereof (if any), the project owner or the project management unit shall submit a report within 10 days from the date of receiving the document approved by the managing agency;

b) As for the expected annual disbursement needs, annual allocated capital plans and revision thereof (if any), the project owner or the project management unit shall submit a report within 10 days from the date of receiving the document approved by the managing agency;

c) Regarding actual fund disbursement, the project owner or the project management unit shall submit a report on the disbursement of ODA and concessional loans in the month within 05 days from the end of the month on the National Public Information System and Database on Public Investment and the Ministry of Finance’s web portal.

3. The Ministry of Planning and Investment and the Ministry of Finance shall provide guidelines on forms of electronic reports as prescribed in this Article.

Article 81. Report on disbursement and state budget accounting status

1. Within 15 days since each quarter end, the project owners shall carry out expenditure review at the State Treasury and send a report to the managing agencies and the financial institutions of the same level on disbursement of ODA and concessional loans in the quarter, together with the State budget revenue-expenditure accounting notes certified by the State Treasury where transactions are conducted.

Enterprises and public non-business units that receive the on-lent amount shall follow the regulations on the disbursement reporting requirements under the Government's Decree on on-lending.

2. Within 30 days from the closing date of the ODA and concessional loans, the project owner shall send a report on completion of the withdrawal of ODA and concessional loans to the Ministry of Finance and the managing agency as a basis for the project’s account finalization.

3. The project owner shall compile and deliver the financial reports to foreign donors according to the provisions at signed international treaties, agreements on ODA and concessional loans, feasibility study reports, project documents (if any) and concurrently send these reports to the managing agency and the financial institution of the same level to promptly monitor and direct the financial management of the project.

4. Annually, within 60 days from the end of the reporting period, to facilitate reconciliation between the accounted data and actual disbursement, the managing agencies shall compile, synthesize and provide the Ministry of Finance, the State  Treasury with the disbursement reports and accounting notes of the state budget revenues and expenditures from ODA and concessional loans.

5. The Ministry of Finance shall provide guidance on the forms of disbursement report.

Article 82. Accounting, auditing and account finalization regimes

Regimes on accounting, auditing, and account finalization of programs and projects funded by ODA and concessional loans shall comply with the regulations applicable to state budget fund and the directions of the Ministry of Finance while ensuring compatibility with the unique contents of the ODA and concessional loans.

Article 83. Regulations on asset management

Management of public assets formed from foreign ODA and concessional loans shall be subject to regulatory provisions on management and use of public assets.

Section 6. OTHER REGULATIONS ON FINANCIAL MANAGEMENT

Article 84. Unique contents of programs/projects funded by ODA and concessional loans

1. Level of contractual advance, recovery of advances, withheld ratio pending for warranty shall comply with the contractual provisions between the project owner and the contractor in accordance with the regulatory provisions on contracts (the project owner may negotiate with contractors on advance guarantees for contracts with advance payment value not exceeding VND 1 billion). The project owners are responsible for managing and recovering the advances made to contractors. In case of failure to recover advances, the project owners shall be responsible for repaying the donors.

2. For every request for certification and payment of the warranty sums to transfer it to the contractors, the project owner shall send the State Treasury a schedule to monitor the progress of transfer of these sums and accumulated amounts to be transferred for reconciliation and confirmation of the warranty amount in accordance with the contractual provisions so that the project owner can make the payment to the contractor.

Article 85. Regulations on financial management of projects whose recurrent expenditures are prescribed in the signed international treaties and loan agreements

1. Project owners shall prepare disbursement plans in the planning year and 02 subsequent years for each program or project with breakdown by ODA loans, concessional loans, and ODA grants for recurrent expenditures and counterpart funds, and submit them to the Ministry of Finance.

2. The Ministry of Finance shall incorporate plans on ODA loans and ODA grants associated with the loans for recurrent expenditures granted to ministries, ministerial-level agencies, central agencies and provincial People's Committees into the annual budget estimates.

3. After the recurrent budget is approved by the competent authority, concerned agencies shall enter the recurrent expenditure plan on the TABMIS according to the applicable regulations.

4. Review of recurrent expenditures for projects or activities shall comply with the Law on State Budget and guiding documents.

5. Projects with recurrent expenditure nature shall apply the administrative and non-business accounting regime. As for projects with hybrid nature of recurrent and capital expenditure, the project owner shall report to the managing agency for decision on the application of suitable accounting regime.

6. Within 06 months from the end of the disbursement, for the projects funded by ODA and concessional loans and eligible for recurrent budget allocation, the project management unit shall prepare an account finalization report with detailed breakdown by each source of ODA funds (e.g. ODA grants, ODA loans, concessional loans, counterpart funds) on the basis of aggregating all account finalization data throughout the project implementation duration already approved by the competent agency and notified to the managing agency. The managing agency shall prepare a synthesis report for submission to the Ministry of Finance.

7. The project owners (spending units) shall prepare and submit annual account finalization reports, annual financial statements to the managing agencies (direct accounting supervisor), or send them to financial institutions (in the absence of any direct accounting supervisor) according to the guiding documents on administrative and non-business accounting regime. The approval, appraisal and notification of annual account finalization shall comply with the Ministry of Finance’s regulations on approval, appraisal, notification and synthesis of annual account finalization.

Chapter VIII

FINANCIAL MANAGEMENT FOR ODA GRANTS

Article 86. Principles of financial management for ODA grants

1. ODA grants as the state budget revenues on the Vietnam’s side shall be budgeted, reviewed, accounted, and finalized in accordance with the laws on state budget and financial management specified in this Decree. For new ODA grants that have not been incorporated in the budget estimates allocated and assigned by the competent authority, the project owners shall make additional estimates in accordance with the regulatory provisions on state management and relevant legislation.

2. For ODA grants directly made and managed by donors: The managing agencies are responsible for the tasks assigned under the signed international treaties, agreements on ODA grants, program/project documents or feasibility study reports; in line with their functions and mandates; in compliance with the regulatory provisions on acceptance of ODA grants. In case the donor transfers ownership of the assets and equipment of the program or project to the project owner, the project owner shall establish the ownership over the assets in accordance with applicable regulations.

3. For mixed ODA grants: Comply with the regulations on financial management for ODA and concessional loans prescribed in Chapter VII of this Decree.

4. For ODA grants serving as emergency aid:

a) For emergency ODA grants for disaster assistance and relief: Comply with the Government’s regulations on acceptance, management and use of international emergency aid for disaster relief and recovery;

b) For other emergency aid: Comply with the regulations of this Decree.

5. In the event of any discrepancies on financial management between this Chapter and the signed international treaties on ODA grants, the latter shall prevail.

Article 87. Opening of payment accounts for programs/projects funded by ODA grants

1. Accounts for counterpart funds: The project owners shall open accounts at the transacting State Treasury so as to effect the control and payment of counterpart fund of the projects.  

2. Accounts for ODA grants: The project owner shall open an account to receive ODA grant at the service bank or the commercial bank. Order and procedures for opening of accounts at the State Treasury and management and use of accounts shall be subject to the applicable regulations.

Article 88. Preparation of financial plans for ODA grants

1. Pursuant to the Decision approving the project/non-project document, or the Investment Decision for the program or project; international treaty or agreement on ODA grant (if any), the project owner shall prepare 3-year and annual budget plans for the ODA grant in accordance with the Law on State Budget and relevant legislation and send them to the managing agency for incorporation.

2. The annual budget estimates for revenues and expenditures from ODA grants shall be detailed by each donor, program, project or non-project assistance, by each international treaty or agreement on ODA grant.

3. Formulation, synthesis, submission, approval, assignment and revision of ODA grant budget plan:

a) For ODA grant used for public capital expenditures, the regulatory provisions on public investment shall be applied;

b) For ODA grant used for recurrent expenditures, the regulatory provisions on state budget shall be applied;

c) For technical assistance projects and non-project assistance funded by ODA grants in kind, the formulation and decision on assignment of budget in the estimates or revised estimates in the year by the competent authorities shall be carried out only when value of aid assets or goods is determined.

4. Based on the annual budget limits assigned by the competent authority, the managing agency shall allocate funds with detailed breakdown by each program, project and non-project assistance and notify the Ministry of Finance and the Ministry of Planning and Investment of the detailed allocation plan.

5. The managing agencies shall direct, organize and report the implementation of budget estimates for the ODA grants in accordance with applicable regulations.

Article 89. Expenditure review, disbursement, and accounting of ODA grant in cash

1. Project owners shall perform expenditure review at the State Treasury according to the regulations on state budget management. The order and procedures for expenditure review and accounting shall comply with the regulatory provisions on administrative procedures in the state treasury field.

2. Expenditure review dossier sent to the State Treasury for the first time:

a) Decision to assign or supplement budget estimates by the competent authority;

b) Certified true copies of the Decision on approval of program/project documents or the Decision on investment in programs/projects and program/project documents or approved feasibility study reports;

c) Certified true copies of the international treaty or agreement on ODA grant or aide memoire on projects funded by ODA grants;

d) Procurement contract of related goods and services (if any). If the contract is executed in a foreign language, the Vietnamese translation with the project owner’s signature and stamp shall be enclosed. Project owners shall be legally responsible for the accuracy of the Vietnamese translation;

dd) The written request for certification of eligible recurrent expenditures or the written request for payment of capital expenditures of the project owners shall comply with the Government’s regulations on administrative procedures in the field of state treasury.

3. Each payment dossier submitted to the State Treasury shall comply with the regulations on expenditures from the state budget.

4. Disbursement of ODA grant in cash for programs/projects: Based on the expenditure review results and at the request of the project owner, the State Treasury or the commercial bank where the project account is opened shall disburse funds to the project as per regulations; notify the Ministry of Finance of the disbursed ODA grant of each account owner on a monthly basis for each program or project.

5. Accounting of revenues and expenditures for projects:

a) On a monthly basis or from time to time, based on the expenditure review results and the written request for accounting ODA grant sent by the project owner, the State Treasury shall keep records accordingly as per regulations. In case the project owner opens an ODA account at the commercial bank where the project account is opened, in addition to the above-mentioned dossier, the project owner needs to enclose a list of payment documents from the ODA account opened at the service bank;

b) The State Treasury shall account ODA grant into the state budget under grant item according to applicable regulations. Permissible advances shall be accounted for as increase in advance expenditures. Recovered advances shall be accounted for as decrease in advance expenditures. Payments for completed quantities are accounted for under actual revenues and expenditures for annual budget account finalization;

c) Time of accounting shall comply with applicable regulations on state budget funds.

6. The payment of advances and expenditure review from ODA grant in cash shall be made in conformance to applicable regulations on state budget.

7. Interest earned on ODA grant deposited in accounts must be separately accounted and used for payment of banking service charges according to the regulations. Banking service charges are considered project expenditures.

8. Upon completion of spending activities on ODA grant account at the commercial bank or the State Treasury where the project account is opened, if there is no commitment in international treaties and agreements on ODA grant on the use of interest earned on the grant, the project owner shall remit the whole interest balance earned on the grant account into the state budget according to applicable regulations. The use of such interest earned on the grant balance shall comply with the regulatory provisions on public investment and state budget.

Article 90. Receipt of ODA grant in kind and service support

1. The receipt of imported relief goods shall comply with the Law on Customs, the Law on Import and Export Tax and the Law on Tax Administration. In addition to import dossiers prescribed in law on customs, legislation on export and import tax, dossiers sent to customs authorities to carry out the customs clearance procedures for imported relief goods include:

a) Specific international treaties or agreements on ODA grants or aide memoire on commitment and receipt of ODA grants: 01 copy certified by the importer’s seal;

b) Decision on approval of the documents of the projects, non-project assistance or the decision on investment in programs and project documents or approved feasibility study reports: 01 copy certified as true copy by the competent authority in accordance with applicable regulatory provisions.

2. Tax refund or exemption dossier for goods and services purchased domestically by using ODA grant sent to the tax authorities include:

a) Specific international treaty or agreement on ODA grant or aide memoire on commitment and receipt of ODA grant: 01 copy;

b) Decision on approval of the documents of the projects, non-project assistance or the decision on investment in programs and project documents or approved feasibility study reports: 01 copy;

c) Other documents prescribed by laws related to tax refund or exemption;

d) The written request for certification of legitimate non-business expenditures or the written request for payment of investment capital of the project owner prescribed in the Government’s regulations on administrative procedures in the field of state treasury (with respect to ODA grant managed and carried out by Vietnam).

3. After the goods have been delivered, the project or non-project owner shall prepare a dossier for submission to the State Treasury for state budget accounting as per regulations. Accounting dossier of revenues and expenditures shall include:

a) Specific international treaty or agreement on ODA grant or aide memoire on commitment and receipt of ODA grant: 01 copy certified as true copy by the competent authority in accordance with relevant law;

b) Decision on approval of the documents of the projects or the decision on investment in programs and project documents or approved feasibility study reports: 01 copy certified as true copy by the competent authority in accordance with applicable regulatory provisions;

c) Written request for recording of revenues and expenditures prescribed in the Government’s regulations on administrative procedures in the state treasury field;

d) For imported goods: Contracts, bills of lading or other equivalent transport documents, commercial invoices or customs declarations of imported goods for cases where commercial invoices are not available: 01 copy certified as true copy of the competent authority in accordance with applicable regulatory provisions. For goods purchased domestically: Procurement contracts, VAT invoices, goods delivery records:  01 copy certified as true copy by the competent authority in accordance with applicable regulatory provisions;

dd) Decision on assignment of ODA grant estimates or revisions thereof in the year by the competent authorities that is required if value of the goods and items is determined.

4. When accounting for value of imported goods, the State Treasury shall record the price exclusive of taxes, fees and charges prescribed in applicable regulations.

Chapter IX

DUTIES, ENTITLEMENTS AND RESPONSIBILITIES OF AGENCIES AND ORGANIZATIONS INVOLVED IN MANAGEMENT AND UTILIZATION OF ODA AND CONCESSIONAL LOANS

Article 91. Duties and entitlements of the Ministry of Planning and Investment

1. Take the lead in drafting cooperation strategies and policies with foreign donors; and orientations to attract, manage and use foreign donors’ ODA and concessional loans.

2. Take the lead in formulating, submitting for promulgation or promulgating legislative documents on management and use of ODA and concessional loans within its competence.

3. Take the lead in determining the capital investment needs to be financed by ODA and concessional loans; synthesizing and submitting to the Prime Minister proposals on programs and projects funded by ODA and concessional loans.

4. Take the lead and coordinate with concerned agencies in appraising funding sources and availability for investment projects funded by ODA or concessional loans.

5. Take the lead and coordinate with concerned agencies in proposing the Government to sign framework/specific international treaties and framework agreements on ODA grants defined in clause 4 of Article 29 of this Decree; seek the Prime Minister’s approval for signing of framework/specific agreements on ODA grants defined in clause 3 of Article 32 of this Decree.

6. Synthesize and propose the investment policy for programs and projects funded by ODA and concessional loans falling under the approving competence of the Prime Minister to seek his decision, except for Category A projects; send official notices to foreign donors on approval of the program/project proposal, decisions on investment policy, and request for support.

7. Synthesize and propose the implementation policy for technical assistance projects and non-project assistance funded by ODA and concessional loans falling under the approving competence of the Prime Minister; send official notices to foreign donors on approval of the technical assistance projects and non-project assistance, and request for support once the implementation policy and project/non-project documents have been approved by the competent authorities.

8. Coordinate with the Ministry of Finance in elaborating framework and specific international treaties, agreements on ODA and concessional loans.

9. Coordinate with the State Bank of Vietnam in formulating international treaties on ODA grant not associated with loans with international financial institutions.

10. Coordinate with the Ministry of Finance and concerned agencies in determining the grant elements, assessing the impacts of new loans on public debt safety thresholds and domestic financial mechanisms applicable to programs/projects in accordance with the regulatory provisions.

11. Monitor and evaluate programs/projects funded by ODA and concessional loans in accordance with regulatory provisions on monitoring and evaluation of public investment, management and use of ODA and concessional loans.

12. Act as the agency in charge of resolving bottlenecks arising in the course of program/project implementation; issues related to multiple ministries or agencies to ensure progress and accelerate disbursement of ODA and concessional loans; propose the Prime Minister to decide solutions for issues related to ODA and concessional loans falling under the approving competence of the Prime Minister.

Where necessary, establish an interdisciplinary working group to work directly with managing agencies, project owners, project management units, and foreign donors to review, assess, and promptly address the issues within its competence.

13. Submit biannual, annual, and ad-hoc reports on mobilization, management, and use of ODA and concessional loans to the Prime Minister; propose solutions for bottlenecks arising in the course of program/project implementation.

Article 92. Duties and entitlements of the Ministry of Finance

1. Coordinate with the Ministry of Planning and Investment and concerned agencies in developing cooperation strategies and policies with foreign donors.

2. Take charge of preparation of contents related to conditions for use of capital, domestic financial mechanism, financial management of programs and projects; financial appraisal of on-lending projects.

3. Take the lead in determining the grant elements, evaluating the impacts of ODA and concessional loans on public debt safety thresholds, determining domestic financial mechanisms for programs and projects funded by ODA and concessional loans.

4. Take the lead and coordinate with the concerned agencies in proposing the Government to sign framework and specific international treaties on ODA, concessional loans, and ODA grants for ODA and concessional loan-funded programs/projects specified in clause 2 of Article 29 of this Decree; propose the Prime Minister to sign framework and specific agreements on ODA, concessional loans, and ODA grants for ODA and concessional loan-funded programs/projects specified in clause 2 of Article 32 of this Decree.

5. Coordinate with the Ministry of Planning and Investment in appraising funding sources and availability for investment projects funded by ODA or concessional loans.

6. Officially represent the "borrower" for ODA and concessional loans in the name of the State or the Government to the foreign donors.

7. Synthesize and submit proposal to the Prime Minister for decision on cancellation the surplus funds; send an official written notice to the donor of the cancellation of the surplus funds as specified under clause 5 of Article 47 of this Decree.

8. Financial management of programs/projects:

a) Take the lead and coordinate with concerned agencies in providing instructions on financial management of programs and projects;

b) Provide instructions on the format and reports on financial management of programs and projects in accordance with applicable regulatory provisions and the international treaties and agreements on ODA and concessional loans signed with foreign donors;

c) Provide capital from state budget and other funding sources to repay ODA loans and concessional loans when they are due;

d) Monitor and inspect financial management in the use of ODA and concessional loans and organize accounting work for these funding sources into the state budget;

dd) Comply with the reporting regime on disbursement, fund withdrawal and repayment of ODA and concessional loans in accordance with the laws on public investment, public debt management and applicable regulations;

e) Take the lead and coordinate with the Ministry of Planning and Investment in promptly providing sufficient counterpart fund from administration funding sources for preparation and implementation of the programs and projects eligible for grant from central government budget in the annual budget plans;

g) Organize on-lending and on-lent fund collection activities of the programs/projects applying mechanism for on-lending of fund from the state budget.

Article 93. Duties and entitlements of the State Bank of Vietnam

1. Coordinate with the Ministry of Planning and Investment and concerned agencies in developing cooperation strategies and policies with foreign donors; developing master plans and plans for attraction, coordination, management, and use of ODA and concessional loans; analyzing and evaluating the effectiveness of such funding sources.

2. Coordinate with the Ministry of Planning and Investment and the Ministry of Finance in assessing sources of ODA, concessional loans, counterpart fund, and their availability (for capital provided by the World Bank, Asian Development Bank, international financial institutions, and other international banks in which the State Bank of Vietnam acts as a representative).

3. Take the lead and coordinate with concerned agencies in proposing the competent authorities to sign international treaties on ODA grants that are not associated with loans from international financial institutions, as stipulated in clause 3 of Article 29 of this Decree.

4. Coordinate with the Ministry of Finance in proposing the competent authorities to sign framework and specific international treaties and agreements on ODA and concessional loans for financial institutions and international banks in which the State Bank of Vietnam acts as a representative.

5. Provide comments on banks eligible to become service banks for the programs or projects funded by ODA and concessional loans.

Article 94. Duties and entitlements of the Ministry of Justice

1. Appraise the draft international treaties and agreements on ODA and concessional loans as prescribed by law.

2. Participate in negotiation and development of draft international treaties and agreements on ODA and concessional loans.

3. Provide comments on investment policy proposal reports for programs/projects for judicial cooperation with foreign donors.

4. Appraise documents of technical assistance projects, non-project assistance in cooperation with foreign donors falling under the approving competence of the Prime Minister in accordance with the law on management of international judicial cooperation; provide comments on the judicial cooperation programs/projects or non-project assistance falling under the approving competence of the managing agency.

Article 95. Duties and entitlements of the Ministry of Foreign Affairs

1. Coordinate with concerned agencies, based on general diplomatic policies, in developing and implementing policies on raising ODA and concessional loans, cooperation policies; participate in raising ODA and concessional loans.

2. Coordinate with the Ministry of Planning and Investment and concerned agencies in directing concerned agencies and diplomatic missions of Vietnam in other countries or at international organizations to raise ODA and concessional loans in accordance with policies and plans for attraction, coordination, management, and use of ODA and concessional loans in each period.

3. Participate in negotiation and provide comments on international treaties and agreements on ODA and concessional loans; provide inputs for proposals to sign international treaties and agreements on ODA and concessional loans.

4. Carry out foreign affairs procedures on the signing and implementation of international treaties; organize the filing, copy and publication of treaties on ODA and concessional loans in accordance with the Law on International Treaties.

5. Grant authorization to sign agreements on ODA and concessional loans.

6. Participate in evaluation of the programs and projects at the request of competent authorities.

7. Monitor and inspect compliance with procedures for signing and implementing international treaties and agreements on ODA and concessional loans as prescribed by law.

Article 96. Duties and entitlements of Ministries, Ministry-level agencies and Governmental bodies

1. Coordinate with the Ministry of Planning and Investment and concerned agencies in developing strategies and plans for attraction, coordination, management, and use of ODA and concessional loans; develop policies and measures on coordinating and improving the effectiveness of ODA and concessional loans under their mandate.

2. Formulate program/project proposals and reports on investment policy proposal or pre-feasibility study reports, documents of the projects or non-project assistance and submit them to the competent authorities for approval under their competence.

3. Coordinate with the proposing agency in proposing the competent authorities to sign specific international treaties and agreements on ODA, concessional loans for the programs or projects in which they act as the managing agency as stipulated in clauses 2, 3, and 4 of Article 29 and clauses 2 and 3 of Article 32 of this Decree, and execute such international treaties and agreements according to the regulatory provisions.

4. Propose the Government to sign specific international treaties on ODA grant as prescribed in clause 1 of Article 29 hereof and implement such international treaties in accordance with regulatory provisions on international treaties; propose the Prime Minister to sign agreements on ODA grant as prescribed in clause 1 of Article 32 hereof and implement such agreement as prescribed by law.

5. Perform state management tasks regarding ODA and concessional loans under their mandate as prescribed by law.

6. Ensure information disclosure, transparency and accountability for effectiveness of ODA and concessional loans provided for the programs and projects under their mandate.

Article 97. Duties and entitlements of provincial People’s Committees

1. Coordinate with the Ministry of Planning and Investment, other Ministries and concerned agencies in developing strategies and plans for attraction, coordination, management, and use of ODA and concessional loans; develop policies and measures on coordination and improvement of effectiveness of ODA and concessional loans within their provinces/cities.

2. Formulate program/project proposals and reports on investment policy proposal or pre-feasibility study reports, documents of the projects or non-project assistance and submit them to the competent authorities for approval under their competence.

3. Coordinate with the proposing agency in proposing the competent authorities to sign specific international treaties and agreements on ODA, concessional loans for the programs or projects in which they act as the managing agency as stipulated in clauses 2, 3, and 4 of Article 29 and clauses 2 and 3 of Article 32 of this Decree, and execute such international treaties and agreements according to the regulatory provisions.

4. Coordinate with the Ministry of Planning and Investment in proposing the Prime Minister to sign specific international treaties on ODA grants as prescribed in clause 4 of Article 29 hereof and implement such international treaties in accordance with regulatory provisions on international treaties; coordinate with the Ministry of Planning and Investment in proposing the Prime Minister to sign agreements on ODA grants as prescribed in clause 3 of Article 32 hereof and implement such agreements as prescribed by law.

5. Direct and organize land acquisition, site clearance, and compensation tasks of programs and projects in their provinces in accordance with law and international treaties on ODA and concessional loans to which the Socialist Republic of Vietnam is a signatory. 

6. Perform state management tasks regarding ODA and concessional loans in their provinces as prescribed by law.

7. Ensure information disclosure, transparency and accountability for effectiveness of ODA and concessional loans provided for the programs and projects under their mandate.

8. Provide capital for central government budget to fully repay foreign lenders by due dates with regard to the programs and projects applying on-lending of ODA and concessional loans from the central government budget to the local government budgets. 

Chapter X

IMPLEMENTATION PROVISIONS

Article 98. Transition provisions

1. For programs and projects funded by ODA loans and concessional loans whose portfolio of projects have been approved by the competent authorities, any amendments or supplements in the course of implementation shall follow the regulations on revising investment policy under this Decree.

2. Programs and projects whose Proposals and investment policies have been approved before the effective date of this Decree may proceed with subsequent order and procedures prescribed under this Decree.

3. Technical assistance programs/projects funded by ODA grants to prepare investment projects and technical assistance projects/non-project assistance funded by stand-alone ODA grants whose program/project documents have been approved before the effective date of this Decree may proceed with subsequent order and procedures prescribed under this Decree.

4. For technical assistance projects/non-project assistance funded by ODA grants whose implementation policies and project/non-project documents have been approved before the effective date of this Decree, if any amendments in the course of implementation does not lead to transformation into technical assistance projects or non-project assistance falling under the approving competence prescribed under clause 1 of Article 23 of this Decree, the managing agency shall proceed with the order and procedures for revising project/non-project documents prescribed under clause 2 of Article 27 of this Decree. If the amendment leads to transformation into technical assistance projects or non-project assistance falling under the approving competence prescribed under clause 1 of Article 23 of this Decree, the managing agency shall proceed with the order and procedures for approving and revising prescribed under Article 25, 26 and 27 of this Decree.

5. For specific international treaties on the signed ODA and concessional loans, these treaties shall continue to apply. In case of revision thereof, regulations laid down in this Decree shall prevail.

6. For currently ongoing umbrella projects, the managing agency of the umbrella project does not have the function of allocating and assigning fund plans to component projects.

7. Regarding revision of investment policies:

a) For umbrella programs and projects whose funding portfolios or investment policies are approved by competent authorities, amendments to investment policies shall be subject to the regulations laid down herein. Managing agencies of component projects of umbrella program or project shall send written documents, enclosing explanatory reports, relevant dossiers and documents, to the managing agency of the latter for compiling purposes, and proceed with the order and procedures for revision of investment policies in accordance with applicable regulations;

b) For projects where state enterprises are on-lent all ODA and concessional loans, if their funding portfolios or investment policies have been approved before the effective date of this Decree: Amendments to investment policies and use of surplus fund for improvement of their efficiency shall be subject to the regulations laid down in Chapter II herein according to the principles that the previous managing agency is the agency proposing revision or amendments; the level at which the authority previously decided investment policy and investment policy is the level at which the authority has the competence in deciding amendments to the investment policy or decision.    In case of use of surplus fund for new projects, regulations laid down in Chapter VI hereof shall prevail.

8. As for programs/projects or non-project assistance funded by ODA grants, if they are approved before the effective date of this Decree, the financial management regime shall be subject to regulations of applicable law on financial state management for foreign grants classified as state budget revenues.

Article 99. Implementation

1. Ministers, Heads of Ministry-level agencies, Heads of Governmental bodies, Chairpersons of People’s Committees of provinces and centrally-affiliated cities, other concerned organizations and individuals shall be responsible for implementing this Decree.

2. The Ministry of Planning and Investment shall lead and cooperate with concerned agencies in taking responsibility for implementation of this Decree.

Article 100. Entry into force

1. In case where reference documents mentioned in this Decree are replaced or revised, the substitute or revised document shall prevail.

2. State enterprises using on-lent ODA and concessional loans of foreign donors shall be subject to Chapter VI herein.

3. This Decree shall take effect as from the signature date and replace the Government’s Decree No. 56/2020/ND-CP dated May 25, 2020, regarding management and use of the official development assistance (ODA) and concessional loans of foreign donors.

 

 

FOR GOVERNMENT
PP. PRIME MINISTER
DEPUTY PRIME MINISTER




Pham Binh Minh

 


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