Nghị định 87/2002/ND-CP

DECREE

ON THE PROVISION AND USE OF CONSULTANCY SERVICES

THE GOVERNMENT

Pursuant to the December 25, 2001 Law on Organization of the Government;
Pursuant to the October 28, 1995 Civil Code;
In order to encourage the development of consultancy activities;
At the proposal of the Minister of Science and Technology,

DECREES:

Chapter I

GENERAL PROVISIONS

Article 1.- Scope of regulation

1. This Decree regulates the provision and use of consultancy services, excluding legal consultancy services.

2. This Decree shall not regulate the provision of consultancy services of which the users shall not have to pay consultancy charges to the providers.

Article 2.- Subjects of application

1. This Decree shall apply to Vietnamese organizations and individuals of all economic sectors, which provide and use consultancy services.

2. This Decree shall not apply to foreign organizations and individuals providing consultancy services in Vietnam.

Article 3.- Application of legal documents

1. All activities of providing and using consultancy services prescribed in Clause 1 of Article 1 must comply with the provisions of this Decree.

2. Where international agreements which Vietnam has signed or acceded to contain provisions different from those of this Decree, the provisions of such international agreements shall apply.

Article 4.- Encouragement of development of consultancy activities

1. The State recognizes consultancy activities as a form of specialized service on the list of State-controlled business lines.

2. The State encourages and supports the development of consultancy activities and the establishment of consultancy associations and adopts preferential policies to develop professional consultancy organizations of all economic sectors.

3. Consultancy activities shall enjoy the highest preferential levels in the system of policies towards service-providing activities according to the provisions of law.

Article 5.- Interpretation of terms

In this Decree the following words and phrases shall be construed as follows:

1. Consultancy activities means activities of collecting and processing information, applying professional knowledge, identifying problems, proposing solutions and options, formulating projects, monitoring and evaluation, which are conducted independently and objectively by Vietnam’s specialized organizations or individuals at the requests of consultancy users.

2. Consultants means specialized organizations or individuals that provide consultancy services in compliance with the provisions of this Decree.

3. Professional consultancy organizations means organizations which only provide consultancy services and conduct other activities closely associated with the consultancy practice, such as research, training, technical assistance, supply of information or lawful representation in settling matters requiring specialized knowledge.

4. Consultancy service users means organizations or individuals that use consultancy services provided by consultants in accordance with the provisions of this Decree.

5. Use of consultancy services with the State budget sources means the use of consultancy services which are paid for with charges coming from the State budget.

6. Independent consultancy means consultancy services that are provided by consultants neither administratively nor financially dependent on the consultancy service users.

Chapter II

PROVISION AND USE OF CONSULTANCY SERVICES

Section A. PROVISION OF CONSULTANCY SERVICES

Article 6.- Conditions for provision of consultancy services

1. For organizations conducting consulting activities, they must:

a/ Be enterprises, scientific and technological organizations or other organizations which are professionally capable and experienced in the consultancy domains, established and registering their operation according to the provisions of law;

b/ Have working offices and facilities;

c/ Have at least 02 qualified persons as prescribed in Clause 2 of this Article.

2. For individuals engaged in consultancy activities, they must:

a/ Possess college, university or higher degree in the domains where they practice consultancy, or consultancy practice certificates in the cases prescribed by law;

b/ Have good moral qualities;

c/ Have full civil act capacity;

d/ Not be currently examined for penal liability or be subjected to administrative measures in the domains where they practice consultancy;

e/ Operate in a certain consultancy organization.

3. Officials and public employees shall be permitted to participate in providing consultancy services provided that such participation is not contrary to the Ordinance on Officials and Public Employees.

Article 7.- Principles for consultancy activities

1. Complying with law.

2. Taking responsibility before law for all professional activities.

3. Observing professional ethics.

4. Ensuring independence, honesty, objectivity and scientificity.

5. Keeping secret information received from the consultancy service users in the course of providing consultancy services, except for cases where the concerned customers so agree or it is otherwise prescribed by law.

Article 8.- Consultants’ rights

1. To participate on an equal footing in selection of, or bids to select, consultants.

2. To negotiate and sign consultancy contracts.

3. To collect consultancy charges as agreed upon in the consultancy contracts.

4. To cancel or unilaterally suspend the performance of the consultancy contracts and claim for damage compensation in cases where the consultancy service users breach their obligations already committed in the consultancy contracts.

5. To request the consultancy service users to supply information and materials necessary for the performance of the consultancy contracts.

6. To hire domestic and foreign specialists to perform the consultancy contracts.

7. To conduct activities to promote the export of consultancy services.

8. To establish consultancy organizations according to the provisions in Clause 1, Article 6 of this Decree.

9. To participate in domestic, regional and international consultancy associations according to the provisions of law.

10. To exercise other rights prescribed by law.

Article 9.- Consultants’ obligations

1. To fulfil their obligations in the consultancy contracts.

2. To create favorable conditions for the consultancy service users to file applications for protection of their intellectual property rights to the results acquired from the process of performing the consultancy contracts, except otherwise provided for in the consultancy contracts.

3. To pay compensation for damage caused to the consultancy service users when they violate their obligations committed in the consultancy contracts.

4. To buy professional liability insurance.

5. To fulfil all financial obligations prescribed by law.

6. To fulfil other obligations as prescribed by law.

Article 10.- Principles for calculating consultancy charges

1. Consultancy charges shall be determined through agreement between the two involved parties on the following grounds:

a/ The content, volume and nature of work determined in the consultancy contracts;

b/ Working duration and conditions of consultants;

c/ Professional qualifications, experiences and prestige of consultants.

2. Consultancy charges shall be agreed upon by the following modes:

a/ According to the working time in the process of providing consultancy services;

b/ According to specific cases with package charges;

c/ According to a percentage (%) of the value of the consulted work.

Section B. USE OF CONSULTANCY SERVICES

Article 11.- Consultancy service users’ rights:

1. To negotiate and sign consultancy contracts.

2. To request consultants to perform the consultancy work with the right volume and quality, according to the time limits, at the places and other agreements reached in the consultancy contracted.

3. To cancel or unilaterally suspend the contractual performance and claim damage compensation according to the terms of the consultancy contracts in cases where the consultants violate their obligations committed in consultancy contracts.

Article 12.- Consultancy service users’ obligations

1. To supply consultants with truthful information and materials necessary for the provision of consultancy services.

2. To pay fully consultancy charges to consultants as agreed upon in consultancy contracts.

3. To fulfil other obligations as prescribed by law.

Section C. SOURCES OF FUNDING FOR THE USE OF CONSULTANCY SERVICES

Article 13.- Sources of funding for the use of consultancy services

1. For agencies and units which use consultancy services with the State budget source, the expenses for using consultancy services shall be calculated into the expenses for preparing and implementing programs or projects in strict accordance with the provisions of the State Budget Law on budget spending.

2. For agencies and units which use consultancy services with their own funding source, the expenses for using consultancy services shall be calculated into their operation or production and business costs.

3. The Ministry of Finance shall assume the prime responsibility and coordinate with the Ministry of Science and Technology and the Ministry of Planning and Investment in guiding the funding sources and methods of determining expenses for using consultancy services according to the provisions in Clause 1, Article 13 of this Decree.

Section D. USE OF CONSULTANCY SERVICES WITH THE STATE BUDGET SOURCE

Article 14.- Use of consultancy services with the State budget source

1. Agencies and units may use independent consultancy services with the State budget source for the following programs and projects:

a/ Investment programs and projects to develop production or services, build infrastructures, develop education, health, culture, sciences, technologies, environmental protection, rural development, hunger elimination and poverty alleviation;

b/ Programs and projects invested with the State budget capital to renew technologies or raise the operational capacity of enterprises or scientific, technological and training institutions;

c/ Programs and projects to formulate strategies and development plannings for various sectors and geographical areas; projects to study and draft legal documents related to or affecting the activities of enterprises or scientific, technological and training institutions;

d/ Other programs and projects decided by competent authorities.

2. Programs and projects specified in Clause 1 of this Article may use consultancy for the following activities:

a/ Conducting pre-feasibility and feasibility studies, preparing program or project documents or providing justifications for evaluation or in response to criticism;

b/ Making designs after the end of the feasibility study stage, making total cost estimates;

c/ Monitoring and evaluating programs and projects.

Article 15.- Obligations of the users of consultancy services with the State budget source

Apart from their general obligations specified in Article 12 of this Decree, the consultancy service users shall also have the following obligations:

1. To organize selection of consultants according to the principles and procedures specified in Article 16 of this Decree.

2. To monitor and step up the consultants work, take timely handling measures when consultants fail to properly perform the consultancy contracts.

3. To test consultancy results, pay for and liquidate contracts according to the terms of consultancy contracts.

4. To take responsibility before law for their use of consultancy services.

Article 16.- Principles and procedures for selecting consultants

1. Agencies and units which use consultancy services with the State budget source must organize bidding to select consultants according to the State’s current legislation on bidding.

2. In cases where bidding is not required for the purpose of keeping confidential national, security and defense secrets or for urgent jobs under decisions of competent authorities, the agencies and units which use consultancy services with the State budget source shall select consultants according to the following principles:

a/ To determine requirements for consultants in a job assignment paper which clearly states the background, objectives, scope and results to be achieved, requirements on the implementation methods, professional capability of consultancy organizations, qualifications and experiences of individuals who will directly provide consultancy services;

b/ To clearly determine criteria and methods of evaluation and selection of consultants and announce such criteria simultaneously with the job assignment paper;

c/ To notify the need to use consultants together with the job assignment paper to at least 03 (three) consultancy organizations, and select a consultant that best satisfies all the determined criteria.

d/ To request the consultant to produce a written technical proposal clearly stating the expected implementation method, introducing the qualifications and experiences of individuals who shall participate in the implementation, and a written financial proposal clearly stating the prices of the services and bases for determining such prices.

Section E. CONSULTANCY CONTRACTS

Article 17.- Form of consultancy contracts

Consultants and users of consultancy services must clearly demonstrate their agreements and commitments in the consultancy contracts in accordance with the provisions of law.

Article 18.- Contents of consultancy contracts

1. A consultancy contract (hereinafter called the contract for short) shall have the following principal contents:

a/ Names, addresses, telephone and fax numbers, e-mail addresses of the consultant and users of the consultancy service;

b/ Objectives of the consultancy service, its scope and expected results;

c/ Rights and obligations of the consultant;

d/ Obligations and rights of the consultancy service users;

e/ Time limit for and tempo of provision of the consultancy service;

f/ Service charge and payment mode;

g/ Agreements on the protection of intellectual property rights to the consultancy results;

h/ Applicable laws and dispute-settling modes;

i/ Force majeure cases;

j/ Contract termination and liabilities of the involved parties upon contract termination;

k/ The conditions for the contract’s validity;

l/ The contract’s duration, principles and procedures for result test and liquidation of the contract;

m/ Cases of amendment and supplementation of the contract, settlement of arising problems.

2. On a case-by-case basis, consultancy contracts may be adjusted or supplemented with other contents if it is so agreed upon by the two involved parties.

Chapter III

STATE MANAGEMENT OVER CONSULTANCY ACTIVITIES

Article 19.- Contents of the State management over consultancy activities

1. Formulating strategies and policies on the development of consultancy activities in Vietnam.

2. Promulgating, guiding and organizing the implementation of, legal documents on consultancy activities.

3. Organizing, guiding, training and fostering in, professional consultancy.

4. Collecting statistics on, monitoring and evaluating the situation of, consultancy activities.

5. Inspecting, supervising, settling complaints and denunciations, and handling violations of the legislation on consultancy organization and activities.

6. Applying measures to support and develop the consultancy profession.

7. Performing the State management over activities of international cooperation on consultancy activities.

Article 20.- State management over consultancy activities

1. The Ministry of Science, Technology and Environment shall assist the Government in performing the uniform State management over consultancy activities.

2. The ministries, the ministerial-level agencies and the agencies attached to the Government shall, within the ambit of their respective tasks and powers, be accountable to the Government for performing the State management over specialized consultancy activities and promulgating regulations thereon according to the provisions in Article 6 of this Decree.

3. The People’s Committees of the provinces and centrally-run cities shall perform the State management over consultancy activities within their respective localities,

Chapter IV

COMMENDATION, HANDLING OF VIOLATIONS, COMPLAINTS AND DENUNCIATIONS

Article 21.- Commendation

Organizations and individuals that record achievements in consultancy activities shall be commended and/or rewarded according to the provisions of law.

Article 22.- Handling of violations

Organizations and individuals that commit acts of violating the provisions of this Decree shall, depending on the nature and seriousness of their violations, be disciplined, administratively sanctioned or examined for penal liability, and, if causing damage, have to pay compensation according to the provisions of law.

Article 23.- Complaints and denunciations

1. Organizations and individuals shall be entitled to complain about and individuals shall be entitled to denounce to competent functional bodies decisions and acts of any organizations and/or individuals in consultancy activities if they have grounds to believe that such decisions or acts violate the provisions of this Decree or infringe upon their rights and/or legitimate interests.

2. The ministries, the ministerial-level agencies, and the agencies attached to the Government, and the provincial/municipal People’s Committees shall, within the ambit of their respective tasks and powers, settle complaints and denunciations and handle violations according to the current provisions of law.

3. The procedures for settling complaints and denunciations shall comply with the law provisions on complaints and denunciations.

Chapter V

IMPLEMENTATION PROVISIONS

Article 24.- Transitional provisions

If consultancy organizations, which have been established and operating lawfully before the effective date of this Decree, meet all conditions prescribed in Article 6 of this Decree, they shall be allowed to continue their operation provided that they must comply with the provisions of this Decree and relevant legal documents.

Article 25.- Implementation effect

1. This Decree takes implementation effect 15 days after its signing.

2. The Minister of Science and Technology shall assume the prime responsibility and coordinate with the concerned ministries and branches in detailing the provisions in Articles 6 and 14, issuing the lists of specialized consultancy domains, and coordinate with the Ministry of Finance in guiding the source of funding for the use of consultancy services prescribed in Clause 1, Article 13 of this Decree.

3. The ministers, the heads of the ministerial-level agencies, the heads of the agencies attached to the Government, and the presidents of the People’s Committees of the provinces and centrally-run cities shall have to implement this Decree.