Chương I Luật đầu tư công 2014: Những quy định chung

Chapter I

GENERAL PROVISIONS

Article 1. Governing scope

This Law provides for the management and use of the capital budget for public investment; the state management of public investment; the right, obligation and responsibility of agencies, organizations and individuals involved in public investment activities.

Article 2. Applicable entities

This Law is applied to agencies, organizations and individuals participating or getting involved in public investment activities as well as the management and use of the capital budget for public investment.

Article 3. Application of the Law on Public Investment, International Treaties and Agreements

1. The management and use of the capital budget for public investment and public investment activities must abide by the provisions of this Law and other relevant laws.

2. If the International Treaties to which the Socialist Republic of Vietnam is a signatory set out regulations other than those specified in this Laws, the regulations of the International Treaties shall prevail.

3. The overseas development of public investment programs and projects must comply with regulations set out in International Treaties to which the Socialist Republic of Vietnam is a signatory as well as International Agreement between Vietnam and foreign partners.

Article 4. Interpretation of terms

In this Law, used terms shall be construed as follows:

1. Report on investment intentions means an explanatory material for preliminary study contents about the significance, feasibility and efficiency of public investment programs, Group-B and Group-C projects, which serves as a basis for competent authorities to decide on the investment policies.

2. Pre-feasibility study report means an explanatory material for preliminary study contents about the significance, feasibility and efficiency of national important projects and Group-A projects, which serves as a basis for competent authorities to decide on the investment policies.

3. Feasibility study report means an explanatory material for study contents about the significance, feasibility and efficiency of public investment programs and projects, which serves as a basis for the investment decision made by competent authorities.

4. Ministry, agency and local authority means regulatory bodies designated by the Prime Minister to develop and implement public investment plans, including:

a) The Communist Party Committee of political institutions, the Supreme People’s Procuracy, the Supreme People’s Court, the State Audit, the President’s Office, the National Assembly’s Office, Ministries, ministerial-level authorities, Governmental agencies (hereinafter referred to as Ministry and central governing body);

b) The People’s Committee of centrally-affiliated cities and provinces (hereinafter referred to as provincial People’s Committee);

c) The Communist Party Committee of the Vietnam Fatherland Front and socio-political organizations;

d) Other agencies or organizations assigned to public investment plans.

5. Program leader means an organization or institution assigned to lead the management of public investment programs.

6. Investor means an organization or institution assigned to public investment projects.

7. Public investment program means a combination of objectives, tasks and measures which aim for socio-economic development targets.

8. Target program means the program for public investment activities in order to achieve one or several target(s) in each sector or several regions or territories over a specific period.

9. National target program means the program for public investment activities in order to achieve socio-economic development targets throughout the country over a specific period.

10. Governing body means Ministry, agency and local authority prescribed in Clause 4 of this Article and program or project management units who are affiliated to political institutions and the National Assembly.

11. Professional agency in charge of public investment management means a competent agency for public investment management, affiliated to the Ministry of Planning and Investment; an agency assigned to manage public investment activities, affiliated to Ministries, the Communist Party Committee, Vietnamese Fatherland Front, socio-political organizations and others assigned to develop and implement public investment plans; the Department of Planning and Investment; competent divisions and subdivisions for public investment management, affiliated to the People's Committee of a district or commune.

12. State management of public investment activities includes the Government, the Ministry of Planning and Investment and People’s Committees at all administrative levels.

13. Public investment project means an investment project entirely or partially funded by the capital budget for public investment.

14. Emergency project means an investment project subject to the decision made by competent authorities, which is aimed at timely overcoming the aftermaths of natural disasters and other unexpected circumstances.

15. Public investment means the Government’s program and project on socio-economic infrastructural construction and socio-economic development.

16. Investment in the form of public-private partnerships means the investment contract between competent State agencies and investors or project management enterprises in order to execute, manage and operate infrastructural and public utility development projects.

17. Public investment activity is composed of the formulation, evaluation and decision of investment policies or intentions; design, appraisal and decision of public investment programs and projects; formulation, evaluation, approval, assignment, development and execution of public investment plans; management and use of the budget capital for public investment; monitoring, supervision, evaluation, examination, inspection of public investment plans, programs and projects.

18. Public investment plan means a combination of targets; orientation and listing of public investment programs and projects; balance of the budget capital for public investment; plans of budget allotment; and approaches to resource mobilization and project execution.

19. Outstanding debts arising from infrastructural construction means the value of accepted workloads described in the public investment plan and approved by competent authorities but the budget has not been allotted to pay for the execution of these workloads yet.

20. Decentralization of state management of public investment means the determination of rights and responsibilities of competent agencies, organizations, and individuals involved in public investment activities.

21. Budget capital for public investment stipulated in this Law includes funds derived from the State budget, government bonds, local government bonds, official development assistance (briefly called ODA), overseas concessional loans, government credits for investment and development purposes, retained revenues of the state budget that have not been recorded in the state budget balance and other loans secured by the local budget for public investment purposes.

Article 5. Investment in public sectors

1. Investment in socio-economic infrastructure programs and projects.

2. Investment in ancillary facilities for regulatory agencies, public service providers, political institutions and socio-political organizations.

3. Investment and assistance in public product and service supply activities.

4. Governmental investment in projects to be executed in the form of a public-private partnership.

Article 6. Classification of public investment projects

1. Depending on the nature of public investment projects, they are classified into the followings:

a) Construction projects such as new construction, renovation, upgradation and expansion of existing investment and construction projects, including the procurement of assets, devices and equipment;

b) Non-construction projects such as asset procurement; receipt of the disposition of land use right; purchase, repair and upgradation of equipment and machinery; and other projects that are not subject to regulations specified at Point a of this Clause.

2. Depending on the significance and size of public investment projects, they are classified into national important projects; Group-A, Group-B and Group-C projects which conform to the criteria regulated in Article 7, 8, 9 and 10 of this Law.

Article 7. Criteria for classifying national important projects

National important projects are independent investment projects or a cluster of closely combined projects which meet one of the following criteria:

1. Using a sum of above VND 10,000 billion as the budget capital for public investment;

2. Creating or facing the possibility of creating substantial impacts on the environment, including:

a) Nuclear power plants;

b) Use of a land parcel that requires the conversion of land use purpose such as a national park; a wildlife sanctuary; a protected landscape area; a forest covering an area of above 50 hectares that serves the purpose of scientific research and experiment; a protection forest covering an area of above 500 hectares which is aimed at barricading windflow, sand, wind wave and encroaching on the sea as well as protecting the environment; a production forest covering an area of above 1,000 hectares;

3. Utilizing a land parcel, covering an area of 500 hectares, which requires the conversion of land use purpose from the land parcel used for wet rice agriculture with more than two crops;

4. Migrating and resettling more than 20,000 residents at mountainous regions and more than 50,000 residents at other regions;

5. Other projects that require the application of special regulations and policies, which are subject to the National Assembly’s decisions.

Article 8. Classification criteria for Group-A projects

Except for national important projects stipulated in Article 7 of this Law, projects that meet one of following criteria are classified as Group-A projects:

1. Regardless of the total investment, such projects are classified according to following criteria:

a) Projects located in the vicinity of special national sites;

b) Projects located at extremely important areas in terms of national defence and security according to legal regulations on national defence and security;

c) National defense and security projects that are characterized as the state secrets;

d) Hazardous substance and explosive manufacturing projects;

dd) Infrastructural construction projects for industrial, processing and exporting zones;

2. Projects financed by the total investment amount of more than VND 2,300 billion and classified by the following sectors:

a) Traffic infrastructure, including wharfs at the sea or river, airport, railroads and national highways;

b) Power generation industry;

c) Oil and gas extraction;

d) Chemical, fertilizer and cement;

dd) Mechanical engineering and metallurgy;

e) Mineral extraction and processing;

g) Residential construction;

3. Projects financed by the total investment amount of more than VND 1,500 billion and classified by the following sectors:

a) Traffic infrastructure, exclusive of those regulated at Point a Clause 2 of this Article;

b) Irrigation;

c) Water supply and drainage and technical infrastructure;

d) Electrical engineering;

dd) Communication and electronic device manufacturing;

e) Pharmaceutical chemistry;

g) Material production, exclusive of those regulated at Point d Clause 2 of this Article;

h) Mechanical construction, exclusive of those regulated at Point d Clause 2 of this Article;

i) Post and telecommunications;

4. Projects financed by the total investment amount of more than VND 2,300 billion and classified by the following sectors:

a) Agriculture, forestry and aquaculture;

b) National park and wildlife sanctuary;

c) Technical infrastructure for new urban zones;

d) Industrial sector, exclusive of industrial projects regulated in Clause 1, 2 and 3 of this Article;

5. Projects financed by the total investment amount of above VND 800 billion and classified by the following sectors:

a) Health care, culture and education;

b) Scientific research, information science, radio and television broadcasting;

c) Treasure;

d) Tourism and sport;

dd) Civil construction, exclusive of residential development projects regulated at Point g Clause 2 of this Article.

Article 9. Classification criteria for Group-B projects

1. Projects classified by the sectors stipulated in Clause 2 Article 8 of this Law and financed by the total investment amount ranging from VND 120 billion to below VND 2,300 billion.

2. Projects classified by the sectors stipulated in Clause 3 Article 8 of this Law and financed by the total investment amount ranging from VND 80 billion to below VND 1,500 billion.

3. Projects classified by the sectors stipulated in Clause 4 Article 8 of this Law and financed by the total investment amount ranging from VND 60 billion to below VND 1,000 billion.

4. Projects classified by the sectors stipulated in Clause 5 Article 8 of this Law and financed by the total investment amount ranging from VND 5 billion to below VND 800 billion.

Article 10. Classification criteria for Group-C projects

1. Projects classified by the sectors stipulated in Clause 2 Article 8 of this Law and financed by the total investment amount of below VND 120 billion.

2. Projects classified by the sectors stipulated in Clause 3 Article 8 of this Law and financed by the total investment amount of below VND 80 billion.

3. Projects classified by the sectors stipulated in Clause 4 Article 8 of this Law and financed by the total investment amount of below VND 60 billion.

4. Projects classified by the sectors stipulated in Clause 5 Article 8 of this Law and financed by the total investment amount of below VND 45 billion.

Article 11. Adjustment to classification criteria for public investment projects

1. The National Assembly decides on any adjustment to classification criteria for national important projects as prescribed in Article 7 of this Law.

2. The Government must submit the Standing Committee of the National Assembly to decide on any adjustment to classification criteria for public investment projects as prescribed in Article 8, 9 and 10 of this Law and report the National Assembly in the next plenum.

3. Adjusting classification criteria for public-sector projects stipulated in Clause 1 and 2 of this Article is required if there is a wide fluctuation in price indices or major changes in the decentralization of public investment management concerning classification criteria for public investment project or other key elements affecting classification criteria for public investment projects.

Article 12. Rules of public investment management

1. Observe legal regulations on the management and use of the budget capital for public investment.

2. Conform to socio-economic development strategy, five-year socio-economic development plan, socio-economic development planning and sectoral development planning.

3. Exercise proper rights and responsibilities of State management agencies, organizations and individuals involved in the management and use of the budget capital for public investment.

4. Manage the use of the budget capital for public investment according to appropriate regulations on each capital source; ensure sufficiency, consistency, cost efficiency, effectiveness and capability of balancing all relevant resources for public investment activities; avoid any possible loss and mismanagement.

5. Ensure the public disclosure and transparency for public investment activities.

6. Encourage organizations and individuals to carry out direct investment or investment activities in the form of public-private partnership for socio-economic infrastructural and public utility development projects.

Article 13. Contents of public investment management

1. Issue and follow legislative documents about public investment.

2. Design and implement the strategy, program, plan, planning, initiative and policy for public investment.

3. Keep track of and provide information about the management and use of the budget capital for public investment.

4. Evaluate the effectiveness of public investment activities; examine and inspect the compliance with legal regulations on public investment as well as plan or planning for public investment.

5. Handle any violation, settle complaints or denunciations from organizations and individuals involved in public investment activities.

6. Commend agencies, organizations, units and individuals that gain excellent achievements in public investment activities.

7. Enter into international cooperation on the public investment.

Article 14. Public disclosure and transparency in public investment activities

1. Contents that require the public disclosure and transparency in public investment activities are composed of:

a) Policies, laws and the introduction of such policies and laws on the management and use of the budget capital for public investment;

b) Principles, criteria and allotment of the budget capital for public investment activities;

c) Principles, criteria and bases for the determination of project portfolio in mid-term and annual public investment plan;

d) Planning, proposal and program for public investment activities at local areas where project sites are located; allotment of the budget capital for specific public investment programs, which depends much on each fiscal year, progress of execution and disbursement of project fund;

dd) Project portfolio throughout local areas where project sites are located, including size, total investment amount, schedule and construction site; evaluation report on common effects of such projects on local areas where project sites are located;

e) Mid-term or annual plan for the allotment of budget capital for public investment activities, depending on each capital source, including project portfolio and allocated amount of the budget capital for each project;

g) Report on the mobilization of resources and other funds for the implementation of public investment projects;

h) Analysis and report on achievements or outcomes of investment plans, programs and projects;

i) Report on the progress of project execution and disbursement of different project funds;

k) Analysis and report on the acceptance testing and evaluation of investment programs and projects.

2. Heads of related agencies, organizations and units must publicize the contents regarding public investment activities in accordance with legal regulations.

Article 15. Expenses incurred from formulation, appraisal, supervision, monitoring, evaluation and inspection of public investment plans, programs and projects

1. Expenses incurred from the formulation and appraisal of report on investment intentions for national target programs or public investment programs funded by allocated expenditures from the state budget granted to the agency and unit in charge of these tasks.

2. Expenses incurred from the formulation and appraisal of pre-feasibility study report and report on investment intentions, financed by the fund for the preparation of investment projects.

3. Expenses incurred from the formulation and appraisal of public investment plans funded by allocated expenditures or current expenditures from the state budget granted to the agency or unit in charge of these tasks.

4. Expenses incurred from the supervision, monitoring and evaluation of public investment plans, programs and projects funded by allocated expenditures or current expenditures from the state budget granted to the agency or unit in charge of these tasks.

5. Expenses incurred from the inspection of public investment plans, programs or projects funded by current expenditures allocated from the state budget to the agency or unit in charge of this task.

6. In respect of public investment programs and projects financed by ODA funds and overseas concessional loans, foreign donors are encouraged to provide financial support to cover these expenses as prescribed in this Article.

Article 16. Prohibited public investment acts

1. The decision on investment policies or intentions is not aligned with investment strategy, planning and proposal; is not made under the proper authority; fails to comply with processes or procedures regulated by laws; fails to get investment funds balanced.

2. The decision to approve investment programs and projects has been made prior to the decision on investment policies made by competent authorities or without compliance with investment policies approved by competent authorities. The decision to adjust total fund for investment programs or projects in contrast to legal regulations on public investment.

3. Any misuse or abuse of power or authority is aimed at committing appropriation, mercenary act and corruption in the management and use of the budget capital for public investment.

4. Program leader and investor enter into collusion with advisory organizations to obtain the decision on investment policies or intentions as well as approve investment programs and projects, which leads to any possible loss and mismanagement of state budget, assets and national resources; any harmful effect and infringement against individual and community’s welfare or benefits.

5. Any illegal act of offering, accepting bribes or acting as a bribe broker is detected

6. Any illegal request for organization or individual's investment in proposed investment programs and projects that have not been officialized by the decision on investment policies or approved or funded by allocated expenditures from the state budget has been made, which can cause outstanding debts incurred from infrastructural construction.

7. The budget capital for public investment is misused, mismanaged and exceeds required investment fund as stipulated by laws.

8. All information, documents and materials concerning the decision on investment policies, investment decision and implementation of investment programs or projects are falsified or misrepresented.

9. Deliberate acts of reporting and providing inaccurate and biased information are aimed at affecting the formulation, appraisal and decision of investment plans, programs and projects.

10. Deliberate acts of reporting and providing inaccurate and biased information are aimed at adversely affecting the supervision, monitoring, evaluation and inspection as well as handling of violations during the implementation of investment plans, programs and projects.

11. Deliberate acts of destruction, fraud, concealment or failure to retain a full amount of materials, records and documents regarding the decision on investment policies, investment decision and implementation of investment programs and projects are performed.

12. Obstruction of the detection of any violation against laws on public investment.