Thông tư 07/2010/TT-BKH

CIRCULAR

GUIDING THE IMPLEMENTATION OF THE GOVERNMENT'S DECREE NO. 93/2009/ ND-CP OF OCTOBER 22, 2009, PROMULGATING THE REGULATION ON MANAGEMENT AND USE OF FOREIGN NON-GOVERNMENTAL AID

Pursuant to the Government's Decree No. U6/2008/ND-CP of November 14, 2008, defining the functions, tasks, powers and organizational structure of the Ministry of Planning and Investment;
Pursuant to the Government's Decree No. 93/ 2009/ND-CP of October 22, 2009, promulgating the Regulation on management and use of foreign non-governmental aid;
The Minister of Planning and Investment guides the implementation of the Government's Decree No. 93/2009/ND-CP of October 22, 2009, promulgating the Regulation on management and use of foreign non-governmental aid (below referred to as the Regulation), as follows:

Chapter I

GENERAL PROVISIONS

Article 1. Scope of regulation (provided in Clause 4, Article 1 of the Regulation):

Eligible recipients of foreign non­governmental (FNG) aid are agencies and organizations defined in Clause 4, Article 1 of the Regulation and their attached and subordinate units and organizations.

Article 2. FNG aid negotiation and conclusion provided in Article 6 are guided as follows:

The negotiation and conclusion of FNG aid amounts comply with current law.

Chapter II

PREPARATION, APPRAISAL AND APPROVAL OF FOREIGN NON­GOVERNMENTAL AID AMOUNTS

Article 3. Preparation for receiving FNG aid amounts (provided in Articles 6 thru 9 of the Regulation)

1. The managing agency shall assign a unit or an organization to act as the FNG aid owner.

2. When necessary to establish an FNG aid preparation board, decision on the establishment of this board under Clause 1, Article 7 of the

Regulation shall be made as follows:

Within 5 working days after receiving a written request from the FNG aid owner, the managing agency shall decide to establish an FNG aid preparation board which has the functions, tasks and powers in accordance with Articles 7 and 8 of the Regulation.

3. An FNG aid dossier to be appraised by a competent authority under Articles 7 and 9 of the Regulation shall be prepared as follows:

a/ The FNG aid owner shall coordinate with the donor in preparing program or project documents or non-project aid dossiers in accordance with Article 9 of the Regulation. The aid owner shall officially request in writing the managing agency to carry out procedures for approval of the receipt of an FNG aid amount.

b/ A program or project document shall be made according to the forms provided in Appendices la. lb and lc to this Circular.

c/A valid FNG aid dossier comprises:

+ Written requests for approval, made by:

+ The FNG aid-approving agency, for FNG aid amounts to be approved by the Prime Minister;

+ The managing agency or the FNG aid owner (in case the managing agency directly manages the FNG aid), for FNG aid amounts to be approved by FNG aid-approving agencies.

- The donor's written agreement on FNG aid details, and notification or commitment to provide such FNG aid. The certification that the residual value of used goods is over 80% complies with Clause 3. Article 17 of the Regulation.

- Draft program or project documents, the list of non-project aid amounts (in Vietnamese and a foreign language) and the draft agreement on FNG aid (if such agreement is required to be signed to replace program or project documents).

- A copy of the operation registration certificate and/or a copy of the valid paper on the donor's legal entity status. These copies must be consularly legalized to ensure their validity.

d/For non-project aid being used vehicles, in addition to the documents specified at Point c. Clause 3 of this Article, the following documents are additionally required:

- The donor's vehicle ownership registration paper or certificate;

- The registry certificate issued by a competent authority of the donor's country. For vehicles temporarily imported for re-export, the registry certificate issued by a competent Vietnamese agency is required:

- The written assessment of the vehicle's residual value of over 80%. certified by a competent assessment organization of the donor's country.

e/ An aid dossier shall be made in 8 sets, including at least one original, for FNG aid amounts to be approved by the Prime Minister.

For aid amounts to be approved by an FNG aid-approving agency, this agency shall itself decide on the number of dossier sets (including the original) for appraisal of an FNG aid amount.

Documents in a foreign language must be accompanied by their Vietnamese translations.

Article 4. Appraisal and approval of the receipt of FNG aid amounts (provided in Articles 10. 11. 13. 14 and 15 of the Regulation)

1. Appraisal of FNG aid amounts to be approved by the Prime Minister:

a/ Appraising agency:

The Ministry of Planning and Investment shall appraise aid amounts to be approved by the Prime Minister.

b/ Appraisal process:

- Step 1: Assessment of the validity of an appraisal dossier

To assess the validity of the appraisal dossier pursuant to Clause 3. Article 3 of this Circular;

- Step 2: Consultation with concerned agencies

After receiving 8 valid dossier sets from the FNG aid-approving agency, the Ministry of Planning and Investment shall send them, enclosed with a written request for consultations, to the Government Office, the Ministry of Finance, the Vietnam Union of Friendship Organizations, the Working Committee for Foreign Non-Governmental Organizations (in case the donor is a foreign non-governmental organization), the Ministry of Public Security, and concerned agencies, units and provincial-level People's Committee, on matters related to the FNG aid amount to be appraised.

- Step 3: Appraisal

If the FNG aid dossier is incomplete, the Ministry of Planning and Investment shall request the FNG aid-approving agency to supplement, modify and complete it and follow the steps mentioned above.

If the dossier is complete and valid, the Ministry of Planning and Investment shall conduct appraisal in either of the following processes:

+ Summarization of consultations: If the FNG aid details are clear and sufficient and receive no objection from consulting agencies, the

Ministry of Planning and Investment shall prepare an appraisal report enclosed with an appraisal record, made according to the form provided in Appendix 2 to this Circular, and consultations of these agencies, and submit it to the Prime Minister for approval of the receipt of such FNG aid amount;

+ Organization of an appraisal conference: If the above process cannot be applied, the Ministry of Planning and Investment shall organize an appraisal conference and appoint the conference's chair and secretary. Such conference shall be attended by representatives of the Ministry of Planning and Investment, consulting agencies and units, the aid owner and concerned units.

If the conference approves the FNG aid dossier, the Ministry of Planning and Investment shall prepare an appraisal report enclosed with an appraisal record, made according to the form provided in Appendix 2 to this Circular, and submit it to the Prime Minister for approval of the receipt of such FNG aid amount.

If the conference disapproves the FNG aid dossier, the Ministry of Planning and Investment shall request the FNG aid-approving agency to supplement, modify and complete the dossier under regulations and follow the steps mentioned above.

c/ Appraisal duration

The time limit for appraising an FNG aid amount is 20 working days after receiving a complete and valid dossier, of which:

The time limit for assessing the appraisal dossier's validity is 3 working days after receiving a complete and valid dossier:

The time limit for concerned agencies to give their written consultations is 12 working days after a written request for consultations is made. Past this time limit, if these agencies fail to send their written consultations to the Ministry of Planning and Investment, they shall be regarded as agreeing with the receipt of the FNG aid amount.

2. Appraisal of FNG aid amounts to be approved by FNG aid-approving agencies:

a/ Appraising agencies:

- Provincial-level Planning and Investment Departments shall appraise FNG aid amounts to be approved by chairpersons of provincial-level People's Committees;

- Units in charge of managing and using FNG aid shall appraise FNG aid amounts other than those specified in Clause 1 and the first paragraph. Point a. Clause 2, of this Article.

FNG aid owners may not appraise their technical assistance projects.

b/ The appraisal process shall be set and promulgated by the FNG aid-approving agency, specifically as follows:

- Step 1: Assessment of the appraisal dossier's validity

To assess the appraisal dossier's validity pursuant to Clause 3. Article 3 of this Circular;

- Step 2: Consultation with concerned agencies

After fully receiving the number of valid dossier sets, the FNG aid-appraising agency shall send them enclosed with a written request for consultations to concerned agencies, units and localities, on matters related to the FNG aid amount to be appraised.

- Step 3: Appraisal

If the project document dossier is incomplete, the appraising agency shall request the managing agency (for the agencies defined at Point b. Clause 10. Article 4 of the Regulation) or the FNG aid owner (for aid owners being attached or subordinate units of the managing agencies defined at Point a. Clause 10, Article 4 of the Regulation) to supplement, modify and complete the dossier and follow the steps mentioned above.

If the dossier is complete and valid, the appraising agency shall conduct appraisal in either of the following processes:

+ Summarization of consultations: If the FNG aid details are clear and complete and receive no objection from consulting agencies, the appraising agency shall prepare an appraisal report enclosed with an appraisal record, made according to the form provided in Appendix 2 to this Circular, and consultations of these agencies, and submit it to the FNG aid-approving agency for approval of the receipt of such FNG aid amount;

+ Organization of an appraisal conference: If the above process cannot be applied, the appraising agency shall organize an appraisal conference and appoint the conference's chair and secretary. Such conference shall be attended by representatives of the appraising agency, consulting agencies, the aid owner and concerned units.

If the conference approves the FNG aid dossier, the appraising agency shall prepare an appraisal report enclosed with an appraisal record, made according to the form provided in Appendix 2 to this Circular, and a draft decision approving the aid amount, made according to the form provided in Appendix 3a (for program or project documents) or Appendix 3b (for non-project aid) to this Circular, and submit it to the FNG aid-approving agency for approval of the receipt of such FNG aid.

If the conference disapproves the FNG aid dossier, the appraising agency shall request the managing agency (for the agencies defined at Point b. Clause 10, Article 4 of the Regulation) or the FNG aid owner (for aid owners being attached or subordinate units of the managing agencies defined at Point a. Clause 10, Article 4 of the Regulation) to supplement, modify and complete the dossier under regulations and follow the steps mentioned above.

c/Appraisal duration

The time limit for appraising an FNG aid amount is 20 working days after receiving a complete and valid dossier, specifically:

- Step 1: The time limit for assessing the appraisal dossier's validity is 3 working days after receiving a complete and valid dossier.

- Step 2: The time limit for concerned agencies to give their written consultations is 12 working days after a written request for consultations is made. Past this time limit, if concerned agencies fail to send their written consultations to the FNG aid-approving agency, they shall be regarded as agreeing with the receipt of the FNG aid amount.

- Step 3: Appraisal time limit:

+ The time limit for preparing the appraisal conference is 2 working days;

+ The time limit for making the appraisal report and the minutes of the appraisal conference is 3 working days after the conference.

3. Approval of an FNG aid amount:

For aid recipients being organizations defined at Points d and e, Clause 4. Article 1 of the Regulation, aid-approving agencies will be ministries, ministerial-level agencies or government-attached agencies performing the state management of the professional domains indicated in the decisions to establish these organizations.

The process of approval complies with Clause 2. Article 15 of the Regulation.

4. Notification of approval results:

The notification of approval results complies with Clause 3, Article 15 of the Regulation.

Chapter III

MANAGEMENT AND IMPLEMENTATION OF FOREIGN NON-GOVERNMENTAL AID AMOUNTS

Article 5. Forms of managing and implementing FNG aid programs and projects

1. The FNG aid owner shall directly manage and administer the implementation of technical assistance programs and projects or assign its attached unit acting as the project owner to do so.

2. The FNG aid owner shall directly manage and administer the implementation of investment programs and projects.

3. The FNG aid program or project management unit (below referred to as project management unit) may concurrently manage different programs or projects if it satisfies the following conditions:

- Being fully capable and organized with functional sections (bidding, planning, finance, organization, administration and personnel management) for implementing all projects;

- Being established under a decision of the competent agency for each program or project in accordance with this Circular.

Article 6. Organizational structure, functions and tasks of a project management unit (provided in Article 19 of the Regulation)

1. Functions and tasks of a project management unit:

a/ To draw up plans.

b/ To manage the preparation of programs or projects:

Management of the preparation of programs or projects covers the study of program or project documents, process, procedures and conditions to implement programs or projects (regulations on budget spending, accounting, audit, reporting, etc.);

Investment projects are regulated by current provisions on work construction investment management, taking into account specific requirements of FNG aid.

c/To carry out bidding activities and manage contracts:

- To perform bidding-related tasks assigned by the agency establishing the project management unit under Vietnamese law on bidding;

- To manage the performance of obligations stated in the contract signed by a competent person and the contractor. To monitor, supervise and assess contractors' activities and their results. To promptly settle according to its competence problems arising in the course of contract performance.

d/To manage finance and assets and disburse capital:

To manage finance and assets and carry out capital disbursement procedures under law and the donor's regulations.

e/ To perform administrative, coordination and explanation tasks:

- To organize its office and manage its staff;

- To establish its internal communication system; to collect, classify and preserve all original information and data related to the program or project and itself under law:

- To make preparations for the FNG aid owner to publicly notify the program's or project's contents, organization, implementation progress and funds to direct beneficiaries and concerned agencies;

- To provide accurate and truthful information to law enforcement, examination, inspection and audit bodies, the donor, mass media and concerned individuals within its assigned tasks and responsibilities, except information restricted from dissemination under law;

- To act as the focal point of the aid owner and program- or project-implementing agencies in working with the donor on relevant matters in the course of program or project implementation.

f/ To monitor, assess and report on program or project implementation:

- To assess its operation;

- To monitor and assess program or project implementation under Articles 24. 25 and 26 of the Regulation;

- To report under Article 27 of the Regulation, g/ To test before take-over, hand over and settle the program or project:

To make preparations for the FNG aid owner and the managing agency to test the program or project before take-over and hand over the completed program or project to the recipient for operation under regulations.

h/ To perform other tasks:

To perform other tasks within the program or project framework as assigned by the agency establishing the project management unit.

2. Organizational structure of a project management unit:

a/ Fundamental requirements for the organizational structure and staff of a project management unit:

- A project management unit must have an appropriate organizational structure and sufficient staff members with capability and experience to effectively and sustainably manage the program or project;

- Each title and post in the project management unit must have a term of reference (TOR) developed by its director on the basis of the functions and tasks defined in the program or project documents and publicly notified within the project management unit. Such TOR must specify the professional requirements, responsibilities, powers, treatment, reporting regime and assessment of job performance.

b/ Organizational structure of a project management unit:

- Based on the contents, size, characteristics and scope of operation and method of managing FNG aid programs and projects, the director of a project management unit shall prepare and submit its organizational structure to the agency establishing the project management unit.

- A project management unit includes:

+An administrative, organization and support section;

+ A functional section in charge of planning, bidding and other necessary activities;

+ A technical and professional section to serve activities stated in the program or project documents.

Each section may take any of the following forms: division, department, group or officer in charge (if the section has only one officer).

The organizational structure of a unit managing different projects must comply with Clause 3. Article 5 of this Circular.

3. Organization of implementation

a/ Establishment of a project management unit

- Legal grounds:

The establishment of a project management unit must be based on:

+ Functions, tasks and powers of the managing agency and the FNG aid owner;

+ The decision approving the FNG aid program or project;

+ The FNG aid agreement;

+ The provisions of this Circular.

- Establishment of a project management unit:

The establishment of a project management unit complies with Clauses 3 and 4. Article 19 of the Regulation.

b/ Operating funds of a project management unit

Spending limits and operating funds comply with the program or project documents and current regulations.

c/ Assets of a project management unit

- A project management unit may be furnished with assets for program or project management under law;

- A project management unit's assets must be used properly, thriftily and efficiently. The lease, lending, donation or use of assets for self-seeking purposes is prohibited;

- A project management unit shall report to the agency establishing the project management unit on assets handed, donated or left by consultants, contractors or suppliers for management under law;

- A project management unit's assets left after the project or program completion or not needed for project implementation shall be disposed of under current regulations.

d/ Completion of an FNG aid program or project

The time of completion of an FNG aid program or project is specified in the agreement signed with the donor.

Within 6 months after a program or project is completed, the project management unit shall complete a final report and a settlement report on the program or project and submit them to the managing agency (in case the managing agency directly manages the program or project) or to the FNG aid owner for submission to the managing agency.

At the same time, the project management unit shall handle its assets under current regulations.

After the final and settlement reports are approved by a competent agency and the project management unit's assets are completely handled, the agency establishing the project management unit shall issue a decision to complete the program or project and dissolve the project management unit.

If the above jobs cannot be completed within the prescribed time limit, based on written explanations of the project management unit, the agency establishing the project management unit shall permit in writing the project management unit to complete remaining jobs within 6 months and shall allocate necessary funds for the project management unit to maintain its extended operation.

For a project management unit managing different programs or projects, the agency establishing the project management unit shall issue a decision to complete each program or project and adjust the functions and tasks of the project management unit under this Circular.

4. Treatment

Treatment policies for the project management unit's director and holders of other titles working on a part-time or secondment basis comply with current regulations, taking into account the characteristics and intensity of jobs and actual working time to encourage capable people to work on a long-term and full-time basis for the program or project.

Article 7. Tasks of managing agencies, FNG aid owners and project management units related to planning on FNG aid programs and projects

1. Right after establishing a project management unit, the managing agency or the project owner shall direct the project management unit to coordinate with the donor in reviewing, updating and adjusting (when necessary) the master plan to implement the program or project and detail a plan on first-year implementation.

2. Based on the master plan to implement the program or project approved by the managing agency, the project owner shall approve a detailed plan to implement the program or project in the first year and each subsequent year.

Annual plans to implement the program or project shall be formulated and approved in line with the managing agency's annual planning timetable.

Annual plans to implement the program or project serve as a basis for the allocation of resources for the program's or project's activities, the formulation of quarterly plans and the administration, monitoring, examination, assessment and commendation of the project management unit's activities.

3. The project management unit shall work out disbursement plans according to the form provided in Appendix 6 to this Circular. The FNG aid owner shall submit to the managing agency the annual disbursement plan for summarization and reporting under the Regulation.

Article 8. Adjustment, modification and supplementation of programs or projects in the course of their implementation provided in Article 22 of the Regulation

1. The adjustment, modification and supplementation of FNG aid programs or projects to be approved by the Prime Minister comply with Article 3 and Clauses 1. 3 and 5. Article 4. of this Circular.

2. The adjustment, modification and supplementation of FNG aid programs or projects to be approved by heads of FNG aid-approving agencies comply with Article 3 and Clauses 2, 3 and 5, Article 4. of this Circular.

Chapter IV

REPORTING ON FOREIGN NON­GOVERNMENTAL AID

Article 9. Reporting regulations and forms applicable to project management units (provided in Article 27 of the Regulation)

1. Reporting forms

The reporting forms applicable to programs and projects include biannual report (Appendix 6.a). annual report (Appendix 6.b). and final report (Appendix 6.c) to this Circular.

2. Reporting regulations

Reporting regulations shall be stipulated by FNG aid-approving agencies.

Article 10. Reporting regulations and forms applicable to FNG aid owners (provided in Article 27 of the Regulation)

1. Reporting forms

The reporting forms applicable to FNG aid owners include biannual report (Appendix 6.a). annual report (Appendix 6.b). and final report (Appendix 6.c) to this Circular.

2. Reporting regulations

- Biannual reports

By July 15 at the latest, a FNG aid owner shall send reports made according to forms 1 thru 8 (Appendix 6.a) by email (particularly, forms 1 and 2 shall also be sent in hard copy and by fax) to the managing agency, the FNG aid-approving agency, the Ministry of Planning and Investment, the Ministry of Finance and the donor (upon request). Particularly, form 1 shall be sent only once after the receipt of the FNG aid is approved (unless there is a change).

- Annual reports

By January 31 of the subsequent year at the latest, a FNG aid owner shall send an annual report on program or project implementation (made according to the form provided in Appendix 6.b) in hard copy and by fax and email to the managing agency, the FNG aid-approving agency, the Ministry of Planning and Investment, the Ministry of Finance, the Working Committee for Foreign Non-Governmental Organizations and the donor (upon request).

- Final reports

Within 6 months after a program or project is completed, a FNG aid owner shall send a final report (made according to the form provided in Appendix 6.c) in hard copy and by fax and email to the managing agency, the FNG aid-approving agency, the Ministry of Planning and Investment, the Ministry of Finance and the donor.

Article 11. Reporting regulations and forms applicable to the raising and implementation of FNG aid amounts managed by managing agencies

1. Biannual reports

By July 15 at the latest, a managing agency shall send a report made according to the form provided in Appendix 7 in hard copy (or by fax) and by email to the FNG aid-approving agency, the Ministry of Planning and Investment, the Ministry of Finance, the Vietnam Union of Friendship Organizations and the Working Committee for Foreign Non-Governmental Organizations.

2. Annual reports

By January 31 of the subsequent year at the latest, a managing agency shall send a report made according to the form provided in Appendix 7 in hard copy (or by fax) and by email to the FNG aid-approving agency, the Ministry of Planning and Investment, the Ministry of Finance, the Vietnam Union of Friendship Organizations and the Working Committee for Foreign Non-Governmental Organizations.

Article 12. Reporting regulations and forms applicable to the approval and management of FNG aid amounts managed by FNG aid-approving agencies

1. Biannual reports

By July 15 at the latest, a FNG aid-approving agency shall send a report made according to the form provided in Appendix 8 in hard copy (or by fax) and by email to the Ministry of Planning and Investment and the Ministry of Finance.

2. Annual reports

By January 31 of the subsequent year at the latest, a managing agency shall send a report made according to the form provided in Appendix 8 in hard copy (or by fax) and by email to the Ministry of Planning and Investment, the Ministry of Finance and the Working Committee for Foreign Non-Governmental Organizations.

Article 13. Reporting regulations and forms applicable to the Vietnam Union of Friendship Organizations

The Vietnam Union of Friendship Organizations shall send an annual report on FNG aid raising and attraction nationwide (Appendix 9) in hard copy and by fax and email to the Ministry of Planning and Investment for summarization and reporting to the Prime Minister before March 1 of the subsequent year.

Article 14. Reporting regulations and forms applicable to the Ministry of Finance

The Ministry of Finance shall submit an annual report (in hard copy) on FNG aid receipt and disbursement nationwide (Appendix 10) to the Prime Minister before March 1 of the subsequent year and notify such (in hard copy and by fax and email) to the Ministry of Planning and Investment and concerned agencies.

Article 15. Reporting regulations and forms applicable to the Ministry of Planning and Investment

The Ministry of Planning and Investment shall submit an annual report on FNG aid approval and implementation nationwide

(Appendix 11) to the Prime Minister and notify such (in hard copy and by fax and email) to the Ministry of Finance and concerned agencies.

An annual report shall be sent before Mach 31 of the subsequent year.

Chapter V

ORGANIZATION OF IMPLEMENTATION

Article 16. This Circular replaces Circular No. 04/2001 /TT-BKH of June 5. 2001, guiding the Regulation on FNG aid management and use promulgated together with the Prime Minister's Decision No. 64/2001/QD-TTg of April 26, 2001.

Article 17. For ongoing programs and projects approved under the Prime Minister's Decision No. 64/2001/QD-TTg

1. These programs and projects shall be implemented under the Regulation promulgated together with Decree No. 93/2009/ND-CP of October 22, 2009.

2. The adjustment, modification, supplemen­tation and application of reporting regulations comply with the Regulation promulgated together with Decree No. 93/2009/ND-CP of October 22, 2009.

3. Managing agencies and FNG aid owners shall review program or project plans to add details on project monitoring and assessment and allocation of resources for implementation.

Article 18. Effect

1. This Circular takes effect 45 days from the date of its signing.

2. Any problems arising in the course of implementation should be reported to the Ministry of Planning and Investment for study and timely additional guidance.-

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