Chương I Luật Đầu tư công 2019: Những quy định chung

Chapter I

GENERAL PROVISIONS

Article 1. Scope

This Law provides for state management of public investment; management and use of public investment capital; rights, obligations and responsibilities of regulatory authorities, affiliates, entities and persons involved in public investment activities.

Article 2. Subjects of application

This Law applies to regulatory authorities, affiliates, entities and persons involved in or related to public investment, management and use of public investment capital.

Article 3. Application of Law on Public Investment, international treaties and agreements

1. Management and use of public investment capital and public investment activities shall have to comply with provisions laid down herein and other provisions of relevant law.

2. If there is any difference between provisions of this Law and those of international treaties of which the Socialist Republic of Vietnam is a member state, the latter shall prevail.

3. Public investment programs and projects in foreign countries must be implemented in accordance with provisions of international treaties of which the Socialist Republic of Vietnam is a member state or international agreements between Vietnam and foreign parties.

4. Management and use of state-owned funds invested in enterprises shall be subject to provisions of law on management and use of state capital invested in production and business activities of enterprises.

Article 4. Interpretation

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

1. Investment policy recommendation report refers to a document presenting a preliminary study’s contents, including necessity, feasibility, efficiency, intended capital sources and estimated capital amounts of a public investment program, group-B or group-C investment project, as a basis for a competent authority to make its decision on that investment policy.

2. Pre-feasibility study report refers to a document presenting a preliminary study’s contents, including necessity, feasibility, efficiency, intended capital sources and estimated capital amounts of an investment project of national significance and a group-A investment project, as a basis for a competent authority to make its decision on an investment policy.

3. Feasibility study report refers to a document presenting a study’s contents, including necessity, feasibility, efficiency, intended capital sources and estimated capital amounts of a public investment program or project, as a basis for a competent authority to make its investment decision.

4. Ministries and/or central and local bodies refers to regulatory authorities or entities assigned planned public investment duties, including:

a) Central bodies affiliated to political organizations, Supreme People’s Procuracy, Supreme People’s Court, State Audit, Office of the President, Office of the National Assembly, Ministries, Ministry-level agencies, Governmental agencies and central bodies of Vietnam Fatherland Front and socio-political organizations (hereinafter referred to as Ministries and/or central bodies);

b) Provincial-level People’s Committees;

c) Other entities and organizations assigned planned public investment duties.

5. Program owner refers to an entity or organization assigned to preside over management of a public investment program.

6. Investment project owner refers to an entity or organization assigned to directly manage a public investment project.

7. Investment policy refers to a competent authority’s decision concerning major contents of an investment program or project, serving as a basis to issue, submit and approve a decision on investment in an investment program and project, or a decision on approval of a feasibility study report of a public investment project.

8. Public investment program refers to a combination of goals, duties and solutions designed to carry out socio-economic development objectives.

9. National target program refers to a public investment program designed to pursue socio-economic objectives in specific stages on a nationwide scale.

10. Host entity refers to a Ministry, central or local entity prescribed in clause 4 of this Article that is in charge of an investment program or project.

11. Entity specialized in management of public investment refers to a unit performing the function of management of public investment that is put under the control of the Ministry of Planning and Investment; a unit assigned to take charge of public investment affairs of a Ministry, central or local authority; a division or department authorized to manage public investment that is put under the control of a district or commune-level People's Committee.

12. Entity accorded regulatory authority over public investment includes Government, Ministry of Planning and Investment and People's Committee at all levels.

13. Public investment project refers to a project using all or part of public investment capital.

14. Urgent public investment project refers to a public investment project designed to promptly prevent, control and mitigate consequences of acts of God, disasters or diseases; an urgent duty to ensure national defence, security and external relations that is subject to the decision of a competent authority.

15. Public investment refers to the State’s investment in programs, projects and others classified as subjects of public investment as provided for herein.

16. Public investment activities include formulation, evaluation of and decision on an investment policy; design, evaluation of and decision on a public investment program or project; formulation, evaluation, approval, assignment and implementation of a public investment plan or project; management and use of public investment capital; commissioning and transfer of a program and preparation of final accounts of a public investment project; monitoring, assessment, examination and inspection of a public investment plan, program or project.

17. Public investment plan refers to a collection of objectives, guidelines and lists of public investment programs and projects; balancing of public investment capital sources, alternatives for fund disbursement, methods of channeling resources and implementation thereof.

18. Investment preparatory activities encompasses formulation, evaluation of and decision on an investment policy, and formulation, evaluation of and decision on investment in a project.

19. Planning activities refers to activities to be performed to formulate, evaluate and decide or approve, release and adjust a planning scheme, subject to provisions laid down in the Law on Planning.

20. Outstanding debts accruing from capital construction activities refers to the post-commissioning value of items that constitute a project belonging to the public investment plan approved by a competent authority and not yet receiving any portion of funds disbursed to these items.

21. Decentralization of regulatory authority over public investment refers to an act of determining rights and responsibilities of entities and persons having competence in performing public investment activities.

22. Public investment capital regulated herein shall comprise: state budget funds; legitimate revenues of state agencies and public service units that are retained for investment purposes as provided in law.

23. Central budget’s capital refers to capital expenditures of the central budget, subject to the Law on State Budget.

24. Local budget’s capital refers to capital expenditures of the local budget, subject to the Law on State Budget.

25. Target transfers from the central budget to the local budget refers to funds from the central budget that are granted as financial supplements in order for local subdivisions to make investment in public investment programs and projects listed in their respective duties decided by a competent authority.

Article 5. Public investment objects

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

Where really necessary, compensation, support and residential resettlement activities in investment projects of national significance may be divided into separate projects, subject to the National Assembly’s evaluation and decision; with respect to those activities in group-A investment projects, subject to the evaluation and decision of the Prime Minister or provincial-level People’s Council under their respective delegated powers. Projects may be separated when approving investment policies for investment projects of national significance and group-A investment projects.

2. Investment in giving support to activities of state regulatory authorities, public service units, political organizations and socio-political organizations.

3. Investment in and support given to investments in provision of public utility and social welfare products and services.

4. Investment of the State in participation in implementing projects in the public-private partnership form.

5. Investment in providing support for formulation, evaluation of and decision on or approval, public disclosure and modification of planning schemes as per law on planning.

6. Investment in granting subsidies to offset preferential lending interest rates; making equity contribution to the charter capital of policy banks and state off-budget financial funds; providing investment support for other policy beneficiaries under the Prime Minister’s decisions.

The Government shall promulgate regulations procedures and processes for carrying out investment that are applied to those beneficiaries specified in this clause.

Article 6. Classification of public investment projects

1. Public investment projects can be classified by their characteristics as follows:

a) Projects with construction constituents constitute investment projects in new construction, renovation, upgradation and expansion of existing investment projects, including purchase of project-controlled assets and equipment;

b) Projects without construction constituents refer to investment projects in purchasing assets, acquiring transferred land use rights, procuring, repairing and upgrading equipment, machinery and other projects that are not prescribed in point a of this clause.

2. Public investment projects may be classified by the level of significance and scale into investment projects of national significance, group-A, group-B and group-C investment projects according to criteria referred to in Article 7, 8, 9 and 10 herein.

Article 7. Criteria for classification of investment projects of national significance

Investment projects of national significance constitute independent investment projects or a complex of closely connected construction projects, and must meet one of the following criteria:

1. Using public investment capital worth 10,000 billion dong or above;

2. Having substantial environmental impacts or posing potential risks in making serious environmental impacts, including the following projects:

a) Nuclear power plants;

b) Those projects using land subject to the requirement for conversion of land use purposes from land in national parks, nature reserves, protected landscapes, research and experimental forests covering an area of 50 hectares or more; upstream protective forests covering an area of 50 hectares or more; protective forests, used as wind, sand screens, wave breakers, and for reclaiming land from the sea and protecting environment, that cover an area of 50 hectares or more; production forests covering at least 1,000 hectares;

3. Using land subject to the requirement for conversion of land use purposes from arable land for growing wet rice during at least two cropping seasons which covers an area of 500 hectares or more;

4. Moving and resettling at least 20,000 inhabitants in mountainous areas or at least 50,000 inhabitants in other regions;

5. Requiring special legal frameworks or policies subject to the National Assembly's resolutions.

Article 8. Criteria for classification of group-A investment projects

Except investment projects of national significance specified in Article 7 herein, projects falling under one of the following criteria shall be classified as group-A investment projects:

1. Those projects falling into the following circumstances, irrespective of the gross investment:

a) National defence and security projects rated top secret;

b) Hazardous and explosive production projects;

c) Investment projects in construction of infrastructure of industrial parks, export processing zones and hi-tech parks;

2. Those projects with the gross investment worth 2,300 billion dong or greater in the following fields:

a) Transport, including bridges, seaports, inland ports, airports, railways and national highways;

b) Electric power industry;

c) Oil and gas production;

d) Chemical, fertilizer and cement production;

dd) Machine manufacturing and metallurgy;

e) Mining and mineral processing;

g) Construction of residential buildings;

3. Those projects with the gross investment worth 1,500 billion dong or greater in the following fields:

a) Transport, except those projects specified in point a of clause 2 of this Article;

b) Water resources and irrigation;

c) Water supply and drainage, waste treatment and construction of other technical infrastructure;

d) Electrical engineering;

dd) Production of communication and electronic equipment;

e) Pharmaceutical chemistry;

g) Production of materials, except those projects specified in point d of clause 2 of this Article;

h) Mechanical engineering projects, except those projects specified in point dd of clause 2 of this Article;

i) Post and telecommunications;

4. Those projects with the gross investment worth 1,000 billion dong or greater in the following fields:

a) Agricultural, forestry and aquacultural production;

b) National parks and nature reserves;

c) Technical infrastructure of new urban zones;

d) Industry, except for those projects in the industrial sectors specified in clause 1, 2 and 3 of this Article;

5. Those projects with the gross investment worth 800 billion dong or greater in the following fields:

a) Health, culture and education;

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

c) Treasure;

d) Tourism, sport and physical activities;

dd) Civil construction, except construction of residential buildings specified in point g of clause 2 of this Article;

e) Projects developed in the national defence and security field, except those projects specified in clause 1, 2, 3 and 4 of this Article.

Article 9. Criteria for classification of group-B investment projects

1. Those projects in the fields specified in clause 2 of Article 8 herein with total investment worth from 120 billion dong to less than 2,300 billion dong.

2. Those projects in the fields specified in clause 3 of Article 8 herein with the gross investment worth from 80 billion dong to less than 1,500 billion dong.

3. Those projects in the fields specified in clause 4 of Article 8 herein with the gross investment worth from 60 billion dong to less than 1,000 billion dong.

4. Those projects in the fields specified in clause 5 of Article 8 herein with the gross investment worth from 45 billion dong to less than 800 billion dong.

Article 10. Criteria for classification of group-C investment projects

1. Those projects in the fields specified in clause 2 of Article 8 herein with the gross investment worth less than 120 billion.

2. Those projects in the fields specified in clause 3 of Article 8 herein with total investment worth less than 80 billion.

3. Those projects in the fields specified in clause 4 of Article 8 herein with the gross investment worth less than 60 billion.

4. Those projects in the fields specified in clause 5 of Article 8 herein with the gross investment worth less than 45 billion.

Article 11. Modification of criteria for classification of public investment projects

1. The National Assembly shall have authority to make its decision on modification of criteria for classification of projects of national significance referred to in Article 7 herein.

2. The Government shall be charged with petitioning the National Assembly Standing Committee to seek its decision on modification of criteria for classification of public investment projects prescribed in Article 8, 9 and 10 herein and reporting to the National Assembly in the upcoming meeting session.

3. Criteria for classification of public investment projects specified in clause 1 and 2 of this Article may be modified in the event that the price index has varied critically and there is a major adjustment in decentralization of public investment management powers related to criteria for classification of public investment projects or existence of other important elements affects criteria for classification of public investment projects.

Article 12. Public investment management principles

1. Comply with law on management and use of public investment capital.

2. Conform to the national socio-economic development strategy, the national socio-economic development plan during the 5-year period and other relevant planning schemes prescribed in law on planning.

3. Duly implement stipulated responsibilities and powers of state regulatory authorities, entities and persons involved in management and use of public investment capital.

4. Manage the use of public investment capital classified by specific funding sources in accordance with regulations; ensure that investment is made on a concentrated and consistent manner, meets required quality standards, is economical and effective, and capability of balancing resources; avoid any waste and loss.

5. Ensure transparency and public disclosure of public investment activities.

Article 13. Tasks involved in state management of public investment

1. Promulgate and direct implementation of legislative documents on public investment.

2. Design and lead the implementation of public investment strategies, programs, plans, solutions and policies.

3. Monitor and provide information about management and use of public investment capital.

4. Assess effectiveness of public investment; check, inspect and oversee compliance with laws on public investment and conformance to public investment plans.

5. Impose sanctions for violations against law, handle complaints and denunciations of entities and persons involved in public investment activities.

6. Offer rewards to entities and persons who have delivered good performance of public investment activities.

7. Enter into international cooperation in public investment.

Article 14. Transparency and public disclosure of public investment activities

1. Public investment information that must be made publicly available and transparent, including:

a) Regulatory framework, laws and conduct of implementation of laws and policies during the period of management and use of public investment capital;

b) Principles, criteria for distribution of public investment capital and limits of distributed investment funds;

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

d) Public investment plans and programs to be developed at localities; funding for each program in specific years and progress of implementation and disbursement of funds for public investment programs;

dd) Portfolio of investment projects to be developed at localities, including scale, gross investment, time and location; report on assessment of overall impacts of each investment project on receiving localities;

e) Plan for distribution of mid-term and annual public investment capital, including the portfolio and public investment capital amounts allocated to specific investment projects;

g) Current situations of mobilization of resources and other funding sources used as capital participation in implementation of public investment projects;

h) Current situations and results of implementation of public investment plans, programs and projects;

i) Implementation and fund disbursement progress;

k) Results of acceptance testing and assessment of public investment programs and projects;

l) Final accounts of public investment capital.

2. Heads of regulatory authorities, organizations and affiliates thereof must make a public disclosure of such public investment information in accordance with laws.

Article 15. Costs of design, assessment, monitoring, examination, evaluation and inspection of public investment plans, programs and projects

1. Costs of preparation and assessment of an investment policy recommendation report for a public investment program using current expenditures of entities and units assigned to carry out these activities.

2. Costs of preparation and assessment of a pre-feasibility study report or an investment policy recommendation report for a project using investment preparatory funds.

3. Costs of formulation and assessment of a public investment plan using current expenditures of entities and units formulating and assessing public investment plans.

4. Costs of monitoring, inspection and evaluation of a public investment plan, program or project using current expenditures of entities and units assigned to carry out these tasks.

5. Costs of inspection of use of current expenditures of inspecting entities and units.

6. As for public investment programs or projects using Official Development Assistance (ODA) funds and other preferential borrowings from foreign sponsors, these sponsors shall be encouraged to give financial support to pay costs specified in this Article.

Article 16. Prohibited acts of public investment

1. Issuing decisions on investment policies that are not conformable to public investment strategies, plans and programs; in which funding sources and capital balancing capability are not defined; ultra vires or in breach of legally required processes and procedures.

2. Issuing decisions on investment in public investment programs or projects without obtaining the competent authority’s decisions on investment policies or in breach of requirements concerning objectives, scope, scale or in excess of total investment specified in investment policies decided by competent authorities. Issuing decisions on adjustment in the gross investment in public investment programs or projects in violation of regulations enshrined in law on public investment.

3. Abusing assigned titles and powers to appropriate, make personal gain from and commit corrupt acts while managing and using public investment capital.

4. Program or project owners collude with consulting organizations and contractors in issuing decisions on investment policies and decisions on public investment programs or projects that result in any loss or waste of state capital, property and national resources, and harms or infringement on legitimate interests of single citizens and the public.

5. Giving, taking bribes and acting as kickback brokers.

6. Requesting entities and persons to put investment at their own expense when public investment programs or projects have not yet obtained decisions on investment policies, approval or incur debts accruing from capital construction activities.

7. Using public investment capital for wrongful purposes, to serve incorrect beneficiaries, in excess of standards and limits prescribed in law.

8. Counterfeiting and falsifying information and documents related to decisions on investment policies, investment decisions and implementation of public investment programs or projects.

9. Deliberately reporting and providing incorrect, untrue and impartial information that may affect formulation, evaluation of and decision on public investment plans, programs and projects, and monitoring, assessing, examining, inspecting and imposing sanctions for any violation arising from implementation of public investment plans, programs and projects.

10. Deliberately damaging, lying about, concealing or storing an inadequate number of documents and evidences relating to decisions on investment policies, investment decisions and implementation of public investment programs and projects.

11. Hindering discovery of any violation against law on public investment.