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CIRCULAR

MANAGEMENT AND USE OF REVENUES AND EXPENDITURES ON SELECTION OF INVESTORS

Pursuant to Decree No. 163/2016/ND-CP dated December 21, 2016 of the Government of Vietnam elaborating the Law on State Budget and its implementation guidelines;

Pursuant to Decree No. 25/2020/ND-CP dated February 28, 2020 of the Government of Vietnam elaborating the implementation of a number of Articles of the Law on Bidding on investor selection;

Pursuant to Decree No. 10/2021/ND-CP dated February 9, 2021 of the Government of Vietnam on management of construction investment costs;

Pursuant to Decree No. 15/2021/ND-CP dated March 3, 2021 of the Government of Vietnam elaborating the management of construction investment projects;

Pursuant to Decree No. 28/2021/ND-CP dated March 26, 2021 of the Government of Vietnam on mechanisms for financial management of public-private partnership investment projects;

Pursuant to Decree No. 31/2021/ND-CP dated March 26, 2021 of the Government of Vietnam elaborating the Law on Investment and its implementation guidelines;

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Pursuant to Decree No. 60/2021/ND-CP dated June 21, 2021 of the Government of Vietnam prescribing financial autonomy of public service providers;

Pursuant to Decree No. 99/2021/ND-CP dated November 11, 2021 of the Government of Vietnam on management, payment, and final settlement of public investment projects;

Pursuant to Decree No.87/2017/ND-CP dated July 26, 2017 of the Government of Vietnam on functions, duties, entitlements and organizational structure of the Ministry of Finance of Vietnam;

At the request of the Director of Department of Investment;  

The Minister of Finance of Vietnam hereby promulgates the Circular on management and use of revenues and expenditures on selection of investors.

Chapter I

GENERAL PROVISIONS

Article 1. Scope

This Circular provides for the management and use of revenues and expenditures during the process of selecting investors for:

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2. Investment projects with the use of land and investment projects subject to bidding according to relevant laws and laws on private investment prescribed in Decree No. 25/2020/ND-CP dated February 28, 2020 of the Government of Vietnam elaborating the implementation of a number of Articles the Law on Bidding on investor selection (hereinafter referred to as “Decree No. 25/2020/ND-CP”) and Decree No. 31/2021/ND-CP dated March 26, 2021 of the Government of Vietnam elaborating the Law on Bidding and its implementation guidelines (hereinafter referred to as “Decree No. 31/2021/ND-CP”).

Article 2. Regulated entities

Organizations and individuals participating in or are involved in the investor selection for investment projects prescribed in Article 1 hereof.

Article 3. Principles of management of revenues and expenditures on selection of investors

1. Revenues and expenditures on selection of investors must stay true to their purposes and comply with policies of the State and regulations of the law.

2. Advance payment, payment, and final settlement of revenues and expenditures during the selection of investors shall comply with regulations of the law on management, use, payment, and final settlement of the public investment capital, recurrent expenditures from the state budget prescribed hereof and relevant laws.

Article 4. Expenditures on selection of PPP investors

1. Expenditures on selection of PPP investors include:

a) Expenditures on preparation and appraisal of documents for pre-qualification invitation;

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c) Expenditures on assessment of results of the pre-qualification;

d) Expenditures on preparation and appraisal of documents for invitations to negotiate and bidding documents;

dd) Expenditures on assessment of applications for negotiations and bid envelops;

e) Expenditures on appraisal of results of the selection of investors;

g) Expenditures on settlement of complaints about the result of investor selection from investors.

2. Norms of expenditures prescribed in Clause 1 of this Article shall comply with regulations prescribed in Article 32 and Point e Clause 2 Article 73 of Decree No. 35/2021/ND-CP.

Article 5. Expenditures on selection of investors for projects with the use of land or projects subject to bidding according to relevant laws and laws on private investment

1. Expenditures on selection of investors for projects with the use of land or projects subject to bidding according to relevant laws and laws on private investment include:

a) Expenditures on preparation and appraisal of bidding documents and request documents;

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c) Expenditures on appraisal of results of investor selection;

d) Expenditures on settlement of complaints about the result of investor selection from investors.

2. Norms of expenditures prescribed in this Article shall comply with regulations prescribed in Clause 1 Article 7 of Decree No. 25/2020/ND-CP amended by Clause 5 Article 89 of Decree No. 35/2021/ND-CP.

Article 6. Revenues from the selection of investors

1. Revenues from bidding document sale and other revenues (if any) after performing tax obligations shall be submitted to the state budget according to the Law on State Budget by the procuring entity.

2. Revenues from the refund of costs prescribed in Article 4 and Article 5 hereof by selected investors shall be submitted to the state budget according to regulations of the Law on State Budget within 15 days from the signing date of the PPP contract, contract between competent state agencies and investors for projects with the use of land, or projects subject to bidding for selection of investors according to relevant laws and laws on private investment.

Chapter II

MANAGEMENT OF EXPENDITURES ON SELECTION OF PPP INVESTORS

Article 7. Budget for selection of PPP investors

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Article 8. Management and use of the budget for bidding for selection of PPP investors

1. In case the procuring entity is the Management Board of Projects: the management, use, and final settlement of the budget for bidding for selection of PPP investors shall comply with regulations of the Ministry of Finance of Vietnam on management and use of revenues for project advisory and management activities of investors and management boards of public investment projects.

2. In case professional or affiliated units of competent agencies hire advisory services in the selection of investors for a part or all of the work prescribed in Clauses 2, 3, 4 Article 32 of Decree No. 35/2021/ND-CP, the advisory service fees are as follows:

a) The total expenditures on selection of investors with tax (including costs created by the Procuring Entity) shall not exceed the estimate approved for advisory service.

b) The value of payment for the advisory unit shall comply with the Contract between the Procuring Entity and the advisory unit.

c) The management, use, payment, and final settlement of the budget prescribed in Point b of this Clause shall comply with current regulations on management, payment, and final settlement of public investment capital.

3. In case professional or affiliated units of competent agencies are capable and approved for implementation of a part or all of the work prescribed in Clauses 2, 3, 4 Article 32 of Decree No. 35/2021/ND-CP by competent agencies: Such units shall be assigned to implement the management and use of the budget for the organization of bidding for investor selection according to the financial mechanism approved by competent agencies.

Article 9. Expenditures on settlement of complaints about the result of investor selection from investors

1. If investors have complaints about the result of investor selection and want competent persons to settle such complaints, submit the fee for complaint settlement to the standing assistance body of the Advisory Board as prescribed in Point e Clause 2 Article 73 of Decree No. 35/2021/ND-CP.

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3. The estimate of expenditures on complaint settlement shall be approved by the Chairman of the Advisory Board as prescribed in Clause 2 of this Article and not exceed the submitted amount prescribed in Clause 1 of this Article.

4. The Chairman of the Advisory Board shall decide on the provision of fixed funding according to the approved estimate to members of the Advisory Board and the standing assistance body of the Advisory Board and other expenditures on complaint settlement.

5. The standing assistance body of the Advisory Board shall be responsible for the expenditures on complaint settlement according to the estimate approved by the Chairman of the Advisory Board.

6. At the end of the complaint settlement, the Chairmen of the Advisory Board shall determine the actually spent amount from the budget. The Chairman of the Advisory Board shall determine the difference between the amount submitted by the investor and the spent amount (if any), and the standing assistance body of the Advisory Board shall refund such amount to such investor within 7 days after the spent amount is determined.

7. In case the complaint of the investor is correct after conclusion, the decision on the settlement of complaints about the result of investor selection of the competent agency must have the conclusion of the amount and deadline for the procuring entity to refund such amount to the investor. The amount the procuring entity has to refund to the investor is equal to the amount submitted by the investor for complaint settlement minus the refunded amount prescribed in Clause 6 of this Article (if any).

8. When the complaint is correct as concluded by competent agencies:

a) If the procuring entity is an administrative unit or public services provider: The budget for the refund to the investor shall be allocated from the estimate of recurrent expenditures of the unit.

b) If the procuring entity is not an administrative unit or public services provider: The budget for the refund to the investor shall be allocated from the operating budget of the unit.

9. Organizations and individuals that commit violations against the decision on settlement of complaints about the results of investor selection issued by competent agencies shall pay compensation to the procuring entity as prescribed by law.

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MANAGEMENT OF EXPENDITURES ON SELECTION OF INVESTORS FOR PROJECTS WITH THE USE OF LAND OR PROJECTS SUBJECT TO BIDDING ACCORDING TO RELEVANT LAWS AND LAWS ON PRIVATE INVESTMENT

Article 10. Budget for selection of investors for projects with the use of land or projects subject to bidding according to relevant laws and laws on private investment

1. The budget for selection of investors for projects with the use of land prescribed in Points a, b, c Clause 1 Article 5 of this Circular shall be allocated from the budget for recurrent expenditures from the state budget of the professional agency of the People’s Committee of the province, the agency affiliated to the People’s Committee of the province or the People’s Committee of the district assigned as the procuring entity by the People’s Committee of the province, or from the budget for recurrent expenditures of state budget of the unit affiliated to the Management Board of Industrial Zones assigned as the procuring entity by the Management Board of Industrial Zones as prescribed in Article 13 of Decree No. 25/2020/ND-CP amended by Clause 6 Article 108 of Decree No. 31/2021/ND-CP.

2. The budget for selection of investors for projects subject to bidding according to relevant laws and laws on private investment prescribed in Points a, b, c Clause 1 Article 5 of this Circular shall be allocated from the budget for recurrent expenditures from the state budget of the professional agency, the agency affiliated to the Ministry, central authority, People's Committee of the province, or People’s Committee of the district assigned as the procuring entity by the People’s Committee of the province, or the unit assigned as the procuring entity according to relevant laws and laws on private investment as prescribed in Clause 2 Article 16 of Decree No. 25/2020/ND-CP.

Article 11. Preparation, approval, and compliance with estimates

1. Principles of preparing, approving, and complying with estimates

The preparation, approval, and compliance with estimates of expenditures on bidding for selection of investors prescribed in Points a, b Clause 1 Article 5 of this Circular shall comply with current regulations on preparation, approval, and compliance with estimates of recurrent expenditures from the state budget.

2. The preparation of estimates of expenditures on bidding for investor selection for projects with the use of land or projects subject to bidding according to relevant laws and laws on private investment shall be based on:

a) The list of projects with the use of land approved by competent authorities and disclosed according to Article 12 of Decree No. 25/2020/ND-CP amended by Clause 5 Article 108 of Decree No. 31/2021/ND-CP; the list of projects subject to bidding according to relevant laws and laws on private investment approved by competent authorities as prescribed in Article 16 of Decree No. 25/2020/ND-CP amended by Clause 7 Article 108 of Decree No. 31/2021/ND-CP;

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c) Policies and regulations according to corresponding current regulations.

3. Preparing, approving, and complying with estimates

a) Pursuant to regulations of the Law on State Budget of Vietnam and regulations prescribed in Clause 1 and Clause 2 of this Article: Professional agencies of the People's Committee, agencies affiliated to the People's Committee of the province, People's Committee of the district; units affiliated to the Management Board of Industrial Zones shall prepare estimates of specific expenditures as prescribed in Article 5 hereof, summarize, include them in their annual estimate of the budget, and present them to competent authorities for approval as per regulation;

b) After the estimate of the annual budget is approved by competent authorities; the People's Committee of the province, People's Committee of the district, and Management Board of Industrial Zones shall allocate the estimate of recurrent expenditures to assigned units as per regulations;

c) In case there are projects with the use of land or projects subject to bidding according to relevant laws and laws on private investment approved by competent authorities during the year: Professional agencies of the People's Committee, agencies affiliated to the People's Committee of the province, People's Committee of the district; units affiliated to the Management Board of Industrial Zones shall prepare additional estimates and present them to competent authorities for approval according to current regulations.

Article 12. Management of expenditures on bidding for the selection of investors for projects with the use of land or projects subject to bidding according to relevant laws and laws on private investment

1. In case the procuring entity is a public service provider that organizes the implementation of the selection of investors for projects with the use of land as prescribed in Article 7 of Decree No. 25/2020/ND-CP amended by Clause 5 Article 89 of Decree No. 35/2021/ND-CP: The management, use, and final settlement of the budget for the selection of investors for projects with the use of land or projects subject to bidding according to relevant laws and laws on private investment shall comply with regulations on the financial autonomy of public service providers.

2. In case the procuring entity is an administrative unit that organizes the implementation of the selection investors as prescribed in Clause 7 of Decree No. 25/2020/ND-CP amended by Clause 5 Article 89 of Decree No. 35/2021/ND-CP: The management, use, and final settlement of the budget for the selection of investors for projects with the use of land or projects subject to bidding according to relevant laws and laws on private investment shall comply with the Law on State Budget of Vietnam.

3. In case the state competent agency or procuring entity hire advisory service to implement a part or all of the work prescribed in Article 7 of Decree No. 25/2020/ND-CP amended by Clause 5 Article 89 of Decree No. 35/2021/ND-CP, the budget for advisory service is as follows:

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b) The value of payment for the advisory unit shall comply with the Contract between the procuring entity or state competent authority and the advisory unit.

c) The management, use, payment, and final settlement of budget prescribed in Point b of this Clause shall comply with current regulations of the Law on Stage Budget of Vietnam.

Article 13. Expenditures on settlement of complaints about the result of investor selection from investors

1. If investors have complaints about the result of investor selection and want competent persons to settle such complaints, submit the fee for complaint settlement to the standing assistance body of the Advisory Board as prescribed in Clause 6 Article 7 of Decree No. 25/2020/ND-CP.

2. The standing assistance body of the Advisory Board shall make and present the Chairman of the Advisory Board with the estimate of expenditures on settlement of complaints of investors by each case for approval.

3. The estimate of expenditures on complaint settlement shall be approved by the Chairman of the Advisory Board as prescribed in Clause 2 of this Article and not exceed the submitted amount prescribed in Clause 1 of this Article.

4. The Chairman of the Advisory Board shall decide on the provision of fixed funding according to the approved estimate to members of the Advisory Board and the standing assistance body of the Advisory Board and other expenditures on complaint settlement.

5. The standing assistance body shall be responsible for the expenditures on complaint settlement according to the estimate approved by the Chairman of the Advisory Board.

6. At the end of the complaint settlement, the Chairmen of the Advisory Board shall determine the actually spent amount from the budget. The standing assistance body of the Advisory Board shall refund the difference between the amount submitted by the investor and the spent amount (if any) to such investor within 7 days after the Chairman of the Advisory Board determines the spent amount.

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8. The standing assistance body of the Advisory Board shall send a written request to the procuring entity to consider refunding an amount equal to the amount submitted by the investor for complaint settlement minus the refunded amount prescribed in Clause 6 of this Article (if any).

9. The budget for refund to investors according to the decision on settlement of complaints about the result of investor selection:

a) If the procuring entity is an administrative unit or public services provider: The budget for the refund to the investor shall be allocated from the estimate of recurrent expenditures of the unit.

b) If the procuring entity is not an administrative unit or public services provider: The budget for the refund to the investor shall be allocated from the operating budget of the unit.

10. Organizations and individuals that commit violations against the decision on settlement of complaints about the results of investor selection issued by competent authorities shall pay compensation to the procuring entity as prescribed by law.

Chapter IV

IMPLEMENTATION

Article 14. Responsibilities of relevant agencies

1. Competent agencies, agencies, or units assigned as the procuring entity shall:

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b) Prepare the estimate of costs during the process of selecting investors and the report on the final settlement of use costs and present them to competent authorities for appraisal and approval;

c) Refund expenses spent by the Advisory Board in case the complaint of the investor is determined to be correct.

2. Payment agencies shall:

Control and pay costs incurred during the process of selecting investors according to regulations on payment of the state budget, the Law on Public Investment, current regulations on financial management of the state, and regulations prescribed hereof.

3. Responsibilities of the Chairman and standing assistance body of the Advisory Board

a) The Chairman of the Advisory Board shall manage and use the amount submitted by investors as prescribed in Clause 1 Article 9 and Clause 1 Article 13 of this Article, ensuring efficiency, thrift, and compliance with the law.

b) The standing assistance body of the Advisory Board shall receive the amount submitted by investors, prepare and present the estimate of expenditures to the Chairman of the Advisory Board for approval, and manage expenditures on the operation of the Advisory Board according to the approved estimate and the refund as prescribed in Articles 9 and 13 hereof.

4. Ministries, central agencies, other agencies, and administrative divisions shall:

Inspect the management and use of the budget for the selection of investors for PPP projects, projects with the use of land, or projects subject to bidding according to relevant laws and laws on private investment; adopt measures according to the law to handle violating individuals or units regarding the management and use of the budget for investor selection.

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Submit the amount prescribed in Article 6 of this Article and the Law on State Budget of Vietnam to the state budget.

Article 16. Implementation provisions

1. This Circular comes into force as of March 25, 2022.  

2. Regulations on investor selection cost prescribed in Circular No. 88/2018/TT-BTC dated September 28, 2018 of the Ministry of Finance of Vietnam on the financial management of PPP projects and investor selection costs shall expire when this Circular comes into force.

3. In case the estimate of the budget for investor selection has been approved by competent agencies before the effective date of this Circular, the payment and final settlement of the budget for investor selection shall comply with this Circular without having to obtain approval for the estimate again.

4. If any document cited in this Circular is amended, supplemented, or replaced, comply with its new edition.

5. The Ministry, central agencies, other agencies, People's Committees at various levels, Management Boards of Industrial Zones, and relevant organizations and individuals shall implement this Circular.

6. Difficulties that arise during the implementation of this Circular should be reported to the Ministry of Finance of Vietnam for appropriate amendments./.

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PP. MINISTER
DEPUTY MINISTER




Ta Anh Tuan