Chương I Nghị định 114/2021/NĐ-CP: Những quy định chung

Chapter I

GENERAL PROVISIONS

Article 1. Scope

This Decree provides for the management and use of official development assistance (ODA) and concessional loans provided by foreign governments, international organizations, inter-government or international organizations, governmental organizations authorized by foreign governments (hereinafter referred to as foreign donors) to the State or the Government of Socialist Republic of Vietnam.

Article 2. Subjects of application  

This Decree applies to agencies, organizations and individuals that participate in or are related to the management and use of ODA and concessional loans granted by foreign donors, and counterpart fund on the Vietnam’s side.

Article 3. Definitions

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

1. Steering Committee for programs or projects funded by ODA and concessional loans (hereinafter referred to as Steering Committee) means an organization established by the managing agency of a program/project funded by ODA or concessional loans (hereinafter referred to as “program/project”) in which an authorized representative of the relevant agency participates to take control of, cooperating in, and supervising the execution of the program/project. In some cases where necessary, under an agreement with the foreign donor, the Steering Committee may include the foreign donor’s representatives.

2. Management Unit of foreign aid program or project funded by ODA and concessional loans (hereinafter referred to as Project Management Unit) means an organization established to help the managing agency or the project owner in managing the execution of one or some programs/projects.

3. Program means a series of activities and projects funded by ODA or concessional loans that are interrelated and might be related to one or some different sectors, industries, territories or subjects with an aim of achieving one or some targets, and is executed in one or several phases.

4. Program associated with a policy framework means a program that is subject to conditions for disbursement of ODA or concessional loans of foreign donors associated with the commitment of Vietnam’s government to building and implementing policies, regulations, solutions for socio-economic development in accordance with the scale and schedule agreed upon among the parties.

5. Regional and global program/project (hereinafter referred to as regional program/project) means a program/project that is sponsored on a global scale or for which aid are received by a group of nations in the same region or different regions to engage in cooperation in achieving certain targets for the benefits of participating parties and in the common interests of the whole region or world. Vietnam’s participation in such a program/project can exist in either form as follow:

a) Participation in one or some activities readily designed by the foreign donor that are embraced in the regional program/project;

b) Execution of operations for which aid is provided for Vietnam in order to develop and execute the program/project within the framework of the regional program/project.

6. Sectoral approach program means a program funded by ODA or concessional loans in which the foreign donor provides assistance according to the development program of an industry or sector in order to ensure concerted, sustainable and effective development of such industry or sector.

7. Managing agency of a program/project funded by ODA and concessional loans (hereinafter referred to as Managing agency) means the central agency of a political organization; the People’s Supreme Procuracy; the People’s Supreme Court, an agency of the National Assembly; the National Assembly’s Office; the State Audit Agency; the President Office, a Ministry, ministerial agency or Governmental agency, the People’s Committee of a province or centrally-affiliated city (hereinafter referred to as provincial People’s Committee); the central agency of Vietnamese Fatherland Front, a socio-political organization, socio-political-professional organization, or socio-professional organization that performs the duty assigned by a competent state authority; other agency or organization assigned the public investment plan comprising the program/project funded by ODA and concessional loans.

8. Owner of a program/project funded by ODA and concessional loans means a unit assigned by the managing agency to directly manage or jointly execute that program/project.

9. Domestic financial mechanism applied to programs/projects funded by ODA and concessional loans (hereinafter referred to as domestic financial mechanism) means regulations on the use of ODA and concessional loans from the state budget for the program/project, including:

a) Full grant of 100% of the loan proceeds;

b) Partial on-lending at the predetermined rate;

c) Full on-lending.

The on-lending method is carried out according to the approach whereunder credit risk is borne or not.

10. Project means a set of proposals that correlate in order to achieve one or more specified goals, and is implemented in a specified area within a predetermined time period and based on defined resources.

Technical assistance project means a project aimed to assist in study into policies, institutions, professions, improvement of capacity through activities, such as provision of domestic and foreign experts, training, provision of equipment and materials, study visits, trips, domestic and overseas conventions, provision of equipment, development of demonstration model, preparation and support for execution of the investment project. Technical assistance projects are comprised of independent technical assistance projects and technical assistance projects making preparations for investment projects.

11. Program/project proposal means a document describing the setting, necessity, objectives, scope, main outcomes, expected execution duration, estimated total investment and capital structure, preliminary assessment of economic, social and environmental impacts (if any), proposed domestic financial mechanism, debt repayment plan; impacts on the mid-term investment plan of the managing agency (with respect to public investment programs/projects).

12. International treaty on ODA or concessional loans means an international treaty defined by the Law on Treaties on the receipt, management and use of ODA and concessional loans, which can be either:

a) Framework international treaty on ODA or concessional loan, which is an international convention related to a strategy, policy and framework for cooperation, prioritized fields; principles and standards binding upon the provision and use of ODA or concessional loans; commitment on ODA or concessional loans for one or several years, and other matters agreed upon between its signatories;

b) A specific international treaty on ODA or concessional loan, which is an international convention on specific matters related to the targets to be attained from, activities involved in, duration for implementation thereof, achievements; conditions for sponsoring, capital, capital structure, financial requirements of a loan and loan repayment schedule; management formalities; duties, responsibilities and powers of the parties towards management of the program/project funded by ODA or concessional loan, and other matters agreed upon between the signatories.

13. Agreement on ODA or concessional loan means a written arrangement on ODA or concessional loan concluded in the name of the Government of Socialist Republic of Vietnam and is not an international treaty. Such an agreement can be either:

a) A framework agreement, which is an agreement related to a strategy, policy and framework for cooperation, prioritized fields; principles and standards binding upon the provision and use of ODA or concessional loans; commitment on ODA or concessional loans for one or several years, and other matters agreed upon between its signatories;

b) A specific agreement, which is an agreement on ODA or concessional loan related to the targets to be attained from, activities involved in, duration for implementation thereof, attained outcomes; conditions for sponsoring, capital, capital structure, financial requirements of a loan and loan repayment schedule; management formalities; duties, responsibilities and powers of the parties towards management of execution of the program/project funded by ODA or concessional loan, and other matters agreed upon between the signatories.

14. Budget support means a method of provision where ODA or concessional loan is transferred directly to the state budget, managed and used in accordance with state budget regulations and procedures in order to achieve set targets in agreement with the foreign donor. Budget assistance can be general budget support or central budget support given to a national target program approved by the competent authority.

15. Service bank means a bank selected by the user (project owner) to perform business transactions for ODA or concessional loan-funded projects, based on judgements about banks that are qualified as service banks for projects run by the State Bank of Vietnam.

16. Non-project assistance means a method of providing the ODA grant in the form of a separate aid without constituting a single project. The aid can be cash, goods or experts carrying out one of the activities, such as conferences, seminars, training, research, and surveys.

17. Decision on implementation policy for a technical assistance project or a non-project assistance funded by the ODA grant (hereinafter referred to as execution policy) means a Prime Minister’s written decision on policy for execution of a technical assistance project or non-project assistance (except technical assistance projects funded by the ODA grant that make preparations and provide assistance for execution of investment projects). Such written decision should contain the following main information: name of the project/non-project assistance, the foreign donor or co-donor; name of the managing agency; targets; total investment amount. Implementation policy decision serves as a basis for the managing agency’s cooperation with the foreign donor on approval of technical assistance project or non-project documentation.

18. Document of a technical assistance project or non-project assistance funded by the ODA grant (hereinafter referred to as project document) means any document that describes the context, necessity, targets, content, primary activities, execution duration, expected economic, social and environmental effects, total capital, capital sources and structure, other resources, sponsoring method, the foreign donor’s conditions (if any), approaches for management of execution of projects approved by the managing agency as a basis for execution of the technical assistance project or non-project assistance.

19. ODA or concessional loan means capital provided by a foreign donor for the State or the Government of Socialist Republic of Vietnam to assist in development, assurance of welfare and social security, which is either:

a) ODA grant, which is an ODA financing, the refund of which to the foreign donor is not required, and which is provided in the form of an independent project or in combination with investment projects funded by ODA or foreign concessional loans;

b) ODA loan, which is a foreign loan with at least 35% grant element if the loan is tied to mandatory procurement of goods or services as required by the foreign donor, or at least 25% grant element if it is an untied aid. Calculation of the grant element is specified in Appendix I hereto;

c) Concessional loan, which is a foreign loan that sets terms and conditions that are more favorable than those of a commercial loan, but has the grant element of which is lower than that of an ODA loan mentioned in point b hereof.

20. Counterpart fund means capital contributed on the Vietnam’s side (in cash or in kind) in a program/project funded by ODA or concessional loan in order to prepare for and execute the program/project. Counterpart fund is provided by the central government budget, the local government budget or the project owner, or contributed by the beneficiary, or other lawful capital source.

21. Mixed capital means capital combined from various sources of ODA and concessional loans with different levels of concession to improve the technical and financial capacity in various forms to increase the grant element of loans for the programs and projects.

22. Surplus fund is the amount of ODA or concessional loan from the foreign donor that come into existence during the period of implementation of a program or project, including post-bidding excess capital, excess capital arising due to exchange rate changes, unused reserve capital and other excess funds.

23. Emergency aid means an ODA or concessional loan provided to Vietnam by the foreign donor for relief and mitigation of natural disaster consequences that are not covered by the Government's regulations on acquisition, management and utilization of international emergency aid for natural disaster relief and recovery; disaster relief, disease prevention; performance of urgent national defense, security and diplomatic tasks in accordance with decisions of competent authorities.

Article 4. Methods for provision of ODA and concessional loans

Methods for provision of ODA and concessional loans include:

1. Program.

2. Project.

3. Non-project.

4. Budget support.

Article 5. Priority use of ODA and concessional loans

1. ODA grants shall be prioritized for use to implement socio-economic infrastructure and capacity building programs/projects; formulate policies, institutions and reforms; prevent, combat, mitigate the risk of natural disasters, provide disaster relief, prevent and control diseases; adapt to climate change; ensure green growth, innovation, and social security; prepare investment projects or co-finance projects using concessional loans to increase the grant elements of the loan.

2. ODA loans shall be prioritized for programs and projects in the fields of health, education, vocational education, climate change adaptation, environmental protection, essential economic infrastructure with no direct cost recovery possibility.

3. Concessional loans are prioritized for on-lending programs and projects in accordance with the Government’s regulatory provisions on on-lending of foreign ODA and concessional loans; programs and projects funded by the state budget in the field of socio-economic infrastructure development.

4. Other priority cases shall comply with the Prime Minister’s decision on the Orientations to attract, manage and utilize foreign donors’ ODA and concessional loans from time to time.

Article 6. Contents and basic rules for state management of ODA and concessional loans

1. Scope of state management for ODA and concessional loans:

a) Formulate, promulgate and organize the implementation of legislative documents on management and use of ODA and concessional loans;

b) Formulate and implement Proposals for attracting, managing and using ODA and concessional loans in each stage to facilitate the implementation of 5-year socio-economic development plans; measures and policies to effectively manage and use such funding sources;

c) Supervise and provide information about management and use of ODA and concessional loans;

d) Monitor, evaluate, and inspect the management and use of ODA and concessional loans according to regulatory provisions.

2. Basic rules for state management of ODA and concessional loans:

a) ODA and concessional loans shall be used to finance capital expenditures only, and are not available for recurrent expenditures. Foreign loans must not be used to carry out activities, such as training or drilling for capacity building, except transfer of technologies and skills in operating equipment and machinery; make study visits or trips; pay taxes, fees, and interest expenses on loans; purchase cars, except for specialized cars decided by competent authorities, reserve supplies and equipment for operation phase after the project is completed, except for special ones decided by competent authorities in accordance with legislative regulations; pay compensation, support and resettlement expenses; pay operating expenses of the Project Management Unit; 

b) The Government shall unify the state management of ODA and concessional loans on the basis of ensuring the effective use of capital and solvency; decentralization associated with accountability, power, managerial capability of ministries, central and local authorities; ensuring coordinated management, supervision and evaluation of concerned agencies in accordance with applicable laws;

c) Ensure information disclosure and transparency; promote accountability in terms of policies, procedures for raising, managing and using ODA and concessional loans among industries, sectors and localities; and the effectiveness of using ODA and concessional loans;

d) Disclose information about cooperation policies, priority fields of foreign donors on the Government's web portals (chinhphu.vn; mpi.gov.vn; mof.gov.vn; mofa.gov.vn);

dd) Prevent and combat corruption, losses and wastefulness in management and use of ODA and concessional loans; prevent and impose punishments for these acts in accordance with law;

e) Methods of determining capital expenditures funded by the state budget: Capital expenditures are determined in compliance with the provisions of the Law on Public Investment, the Law on State Budget, the Law on Construction and other relevant legislative documents.

Article 7. Principles of applying domestic financial mechanism for ODA and concessional loans

1. For programs/projects funded by central government budget, the method of full grant of foreign ODA loans and concessional loans from the central budget shall be applied. 

2. For investment programs/projects funded by local government budget, the method of partial or full on-lending of foreign ODA and concessional loans as prescribed by legislation on on-lending of the Government’s foreign ODA loans and concessional loans shall be applied.

For investment programs/projects funded by local government budget that use foreign ODA and concessional loans to finance the locality's contribution in public-private partnership (PPP) projects, the method of full on-lending of foreign ODA and concessional loans as prescribed by legislation on on-lending of foreign ODA and concessional loans shall be applied.

3. For investment programs/projects with full or partial cost recoverability, the method of full or partial on-lending of foreign ODA and concessional loans from the central budget as prescribed by legislation on on-lending of the Government’s foreign loans shall be applied.

4. For ODA grants, including those associated with loans, ODA grants for investment projects, technical assistance projects (e.g. independent projects, preparatory and supporting projects), and non-projects, the method of full grant of 100% of the loan proceeds shall be applied.

Article 8. Order and procedures for management and use of ODA and concessional loans

1. For programs/projects funded by ODA and concessional loans:

a) Draft, select and approve the program/project proposal;

b) Send an official notice of the approved program/project proposal to the foreign donor;

c) Draft, appraise and decide on the investment policy for the program/project;

d) Officially notify the foreign donor of the investment policy decision of the program or project and the sponsoring request;

dd) Draft, appraise and decide on investment in the program/project;

e) Depending on donor regulations, one of the following procedures shall be performed: Sign international treaties, agreements on ODA and concessional loans;

g) Carry out the performance management and financial management;

h) Complete and transfer the results.

2. For technical assistance projects and non-project assistance funded by ODA grants:

a) Formulate project documents and non-project documents;

b) Decide on the implementation policy for projects and non-project assistance specified in clause 1 of Article 23 herein;

c) Appraise and approve project documents and non-project documents;

d) Officially notify the foreign donor of the approval the project/non-project document and the request for sponsoring;

e) Depending on foreign donor’s regulations, one of the following procedures shall be performed: Sign international treaties, agreements on ODA grants; sign aide memoire on technical assistance projects and non-project assistance;

e) Carry out the performance management and financial management;

g) Complete and transfer the results.

3. For budget support:

a) Make documents and records on the budget support;

b) Decide on the policy to receive the budget support;

c) Sign international treaties, agreements on ODA and concessional loans for the budget support;

d) Carry out the performance management and financial management;

dd) Complete and transfer the results.

4. For programs/projects funded by mixed capital: The managing agency shall follow the order and procedures applied to the programs and projects funded ODA and concessional loans as specified in clause 1 of this Article.

5. Programs/projects following streamlined procedures:

a) Emergency investment projects funded by ODA grants shall be subject to regulations laid down in Article 42 in the Law on Public Investment;

b) Investment programs/projects funded by ODA grants, and technical assistance projects funded by ODA grants to prepare for investment projects, shall be subject to regulations laid down in point c, d, dd, e, g and h of clause 1 of this Article.

Article 9. Policy to receive the budget support

1. Order and procedures for deciding the policy to receive general budget support are prescribed as follows:

a) The Ministry of Finance shall be in charge of formulating the document on budget support which specifies the central budget’s balance, proposed plans to cover budget deficit; shall adhere to the principles of budget support loans used as capital expenditures, and get comments from the Ministry of Planning and Investment and other concerned agencies;

b) On the basis of synthesizing these comments, the Ministry of Finance shall be in charge of reporting to the Prime Minister on the necessity, objectives, socio-economic efficiency, total capital, funding sources and structure, conditions for receiving budget support, benefits and obligations, funding methods and arrangements for management;  

c) The Prime Minister shall consider and decide on the policy to receive the budget support, which will serve as a basis for negotiation, signing and receipt of the general budget support as per regulations.

2. Order and procedures for decision on the policy to receive the central budget support for implementation of the national target programs approved by competent authorities shall be subject to the following regulations:

a) Upon receipt of the decision on approval of the policy for investment in the national target program, the managing agency of the national target program sends an Official Letter to the Ministry of Planning and Investment and Ministry of Finance, enclosing the Document on the budget support, clearly specifying the  context,  necessity,  targets, total  fund,  funding  sources  and  structure,  other  resources; conditions  for  receiving  the  budget  support,  benefits  and  obligations;  funding  methods  and  arrangements  for management;  plans to use loans to serve the objectives of the national target program; principles, criteria, list of the projects funded by the budget support, plans to assign loan use plans to ministries, central and local authorities as a basis to allocate midterm and annual public investment capital;

b) The Ministry of Finance evaluates the level of concession, impacts, financial mechanism of the loan; capability to receive the budget support for accomplishment of targets determined in the national target program; conditions for receiving the budget support, and sends the evaluation report to the Ministry of Planning and Investment;

c) After incorporating opinions of the Ministry of Finance referred to in point b of this clause and opinions of concerned agencies, the Ministry of Planning and Investment takes the lead and send a report to the Prime Minister to seek consent to the policy to receive the central budget support for implementation of the national target program, including the principles, criteria, financial mechanism, list of projects funded by that budget support, plans to assign loan use plans to ministries, central and local authorities;  

d) The Prime Minister considers approving the policy to receive the budget support, principles, criteria, financial mechanism, detailed list of projects, plans to allocate financing to ministries, central and local authorities;

dd) According to the Prime Minister’s decision, the managing agency of the project carries out procedures for appraising and deciding to invest in a particular project funded by the budget support that is part of the national target program as provided by relevant law. 

Article 10. Participation in regional programs and projects

1. In cases where a managing agency of a regional program or project has not been identified, based on the foreign donors' proposal on the participation in regional programs and projects, the Ministry of Planning and Investment shall take the lead and cooperate with concerned agencies in seeking the Prime Minister’s approval of Vietnam’s participation in such regional programs/projects and designation of the managing agency in charge.

2. In cases where a managing agency of a regional program or project has been identified, the managing agency shall send the Ministry of Planning and Investment an official letter, enclosing the regional program/project document of the foreign donor, clearly specifying the interests and duties of Vietnam as a participant. The Ministry of Planning and Investment shall take the lead and cooperate with concerned agencies in seeking the Prime Minister’s approval of Vietnam’s participation in such regional program/project.

3. Where a foreign donor provides ODA or concessional loan to develop and implement a program/project within the framework of a regional program/project, based on the Prime Minister’s decision on Vietnam’s participation in regional programs/projects as per clause 1 and 2 of this Article, the managing agency shall elaborate, appraise and make investment policy decision and investment decision for the programs/projects funded by ODA and concessional loans in accordance with Chapter II herein.

Article 11. Private sector access to ODA and concessional loans

1. The private sector may access ODA and concessional loans in accordance with policies on provision of ODA and concessional loans of foreign donors.

2. Methods for the private sector to access and use ODA and concessional loans:

a) Access to ODA and concessional loans that ministries, central authorities and provincial People's Committees use to finance project preparation and bidding for investor selection, or finance the state contribution in PPP projects in accordance with applicable provisions on PPP and specific international treaties, specific agreements on ODA and concessional loans;

b) Access and use ODA and concessional loans through participation in private sector support programs/projects of managing agencies.