Chương II Nghị định 114/2021/NĐ-CP: Lập, thẩm định, quyết định chủ trương đầu tư và quyết định đầu tư chương trình, dự án đầu tư sử dụng vốn vay ODA, vốn vay ưu đãi; chương trình, dự án đầu tư sử dụng vốn ODA không hoàn lại và dự án hỗ trợ kỹ thuật sử dụng vốn ODA không hoàn lại chuẩn bị dự án đầu tư

Chapter II

DRAFTING, APPRAISING, AND MAKING INVESTMENT POLICY DECISION AND INVESTMENT DECISION FOR PROGRAMS/PROJECTS FUNDED BY ODA, CONCESSIONAL LOANS; INVESTMENT PROGRAMS, PROJECTS FUNDED BY ODA GRANTS AND TECHNICAL ASSISTANCE PROJECTS FUNDED BY ODA GRANTS FOR INVESTMENT PROJECT PREPARATION

Section 1. DRAFTING, APPRAISING AND DECIDING ON INVESTMENT POLICY FOR THE PROGRAM/PROJECT

Article 12. Decision making authority on investment policy for the programs/projects funded by ODA and concessional loans

1. a) The power to issue an investment policy decision for a national target program, project of national importance and public investment program funded by ODA and concessional loans shall be subject to the regulations laid down in clause 1 and 2 of Article 17 in the Law on Public Investment.

2. The Prime Minister shall be accorded authority to decide on investment policy for the following programs/projects:

a) Investment programs and projects funded by ODA loans and concessional loans, except for those specified in clause 1 of this Article;

b) Investment programs and projects funded by ODA grants in the following cases: Category A and Category B investment programs and projects; programs and projects accompanied by policy frameworks; programs and projects in the fields of security, national defense and religion; sector-wide approach programs; procurement of goods subject to permission of the Prime Minister;

c) Technical assistance projects funded by foreign donors’ ODA and concessional loans to prepare investment projects.

3. The head of the managing agency shall decide on investment policy for Category C investment programs/projects funded by ODA grants.

Article 13. Proposal for programs/projects funded by ODA and concessional loans

1. The Prime Minister shall be accorded authority to approve program/project proposals.

2. Order and procedures for approval of a program/project proposal:

a) Ministries, central and local regulatory authorities prepare the proposal for the program/project funded by foreign ODA and concessional loan for submission to the Ministry of Planning and Investment, the Ministry of Finance and concerned agencies in accordance with law; and give clear explanations as to why they make the proposal for the tied loan of the foreign donor (if any);

b) The Ministry of Finance takes the lead for determining the grant elements, evaluating the impact of new loans on the public debt safety thresholds, determining applicable domestic financial mechanism, and reporting to the Prime Minister in accordance with the Law on Public Debt Management and concurrently send to the Ministry of Planning and Investment;

c) The Ministry of Planning and Investment sends a written request to consult concerned agencies on the program/project proposal. After incorporating the comments of the Ministry of Finance as prescribed in point b of this clause and the comments of concerned agencies, the Ministry of Planning and Investment evaluates the necessity of the programs/projects; makes the preliminary assessment of the feasibility, socio-economic effectiveness, environmental impacts (if any), and the impacts of the programs/projects on the midterm public investment plans; thereby selecting the suitable program/project proposals and submitting them to the Prime Minister for approval; 

d) The Prime Minister considers and approves the program/project proposal against the following aspects: Name of the program/project; name of the foreign donor and co-donor (if any); name of the managing agency; binding terms and conditions of the foreign donor (if any), expected objectives and scale; expected duration; total estimated investment and fund structure; domestic financial mechanism; on-lending method; proposals to use ODA and concessional loan for purchase of reserve supplies and equipment (if any) and other relevant contents; 

dd) The Ministry of Planning and Investment officially notifies the foreign donor of the Prime Minister’s decision on approval of the program/project proposal.

3. Dossier and time limit for reviewing the program/project proposal:

a) Dossier: Program/project proposal made by using the sample specified in Appendix II hereto; the written request that the managing agency submits to the competent authority for approval of the program/project proposal; other relevant documents (if any); 

b) The number of dossiers to be submitted to the Ministry of Planning and Investment is 08 sets;

c) The number of dossiers to be submitted to the Ministry of Finance is 03 sets;

d) The time limit for review and submission of the program/project proposal to the Prime Minister is 45 days from the date that Ministry of Planning and Investment and the Ministry of Finance receive complete and valid dossiers.

Where the dossier is invalid or the content of the program/project proposal does not conform to the provisions of clause 3 of this Article, the Ministry of Planning and Investment and the Ministry of Finance must send their written feedback to request the managing agency to fine tune the program/project proposal within 05 days.

4. Criteria for selection of the program/project proposal:

a) Compatibility with the relevant socio-economic development strategies or master plans in accordance with law on socio-economic development master plans and plans; public debt safety thresholds and repayment capacity; orientation for attraction of ODA and concessional loans; policies and orientations for priorities in ODA and concessional loan provision of foreign donors; 

b) Assurance of socio-economic and environmental effectiveness and sustainability;

c) Compatibility with the availability of ODA, concessional loans, and counterpart fund;

d) No overlap with the contents of programs/projects whose proposals, investment policies or investment decisions have already been approved by competent authorities.

Article 14. Order and procedures for making investment policy decision for programs/projects funded by ODA and concessional loans

1. Order and procedures for making investment policy decisions for national target programs or projects of national importance funded by ODA and concessional loans shall be subject to the regulations laid down in clause 5 of Article 25 in the Law on Public Investment.

2. Order and procedures for making investment policy decisions for public investment programs funded by ODA and concessional loans under the Government’s decision-making authority shall be subject to the regulations laid down in Article 22 and clause 6 of Article 25 in the Law on Public Investment.

3. Order and procedures for making investment policy decisions for category A projects funded by ODA and concessional loans shall be subject to the regulations laid down in Article 23 and clause 7 of Article 25 in the Law on Public Investment.

4. Order and procedures for making investment policy decisions for programs/projects funded by ODA and concessional loans under the Prime Minister’s decision-making authority, except category A projects, shall be subject to the regulations laid down in clause 8 of Article 25 in the Law on Public Investment, specifically as follows:

a) The managing agency sends the Ministry of Planning and Investment an investment policy proposal report;

b) The Ministry of Planning and Investment presides over evaluating the investment policy proposal report, funding sources and availability, and submitting it to the Prime Minister; 

c) The Prime Minister considers granting the investment policy decision.

5. Order and procedures for making investment policy decisions for programs/projects under the decision-making authority of heads of managing agencies shall be subject to the regulations laid down in clause 9 of Article 25 in the Law on Public Investment, specifically as follows:

a) The managing agency consults the Ministry of Planning and Investment, the Ministry of Finance and other concerned agencies about the investment policy proposal report;

b) Based on the comments of agencies, the managing agency undertakes the evaluation of the report and decides on the investment policy.

6. The Ministry of Planning and Investment officially notifies the foreign donor of the decision of approval of the investment policy for the program/project, and the funding request.

7. In case there are changes to the pre-feasibility study report and the report on investment policy proposal compared to the contents of the approved program/project proposal, the managing agency shall supplement explanation on the changes compared to the approved program/project proposal in the letter of transmittal for appraisal of the feasibility study report and report on investment policy proposal for the program/project as prescribed in point b of clause 1 of Article 15 in this Decree. 

8. The preliminary assessment of environmental impacts is part of the pre-feasibility study report or investment policy proposal report. The competent authority shall consult that preliminary assessment of environmental impacts to decide on the investment policy in accordance with Article 99 in the Law on Public Investment.   Preliminary environmental impact assessment shall be subject to the Government's regulations elaborating on implementation of several Articles of the Law on Public Investment.

Article 15. Dossiers, contents and time limit for appraisal of feasibility study reports and reports on investment policy proposals for the programs/projects funded by ODA and concessional loans 

1. Appraisal dossiers of feasibility study report and report on investment policy proposal for the program/project funded by ODA and concessional loan: 

a) A letter of transmittal requesting the competent authority’s approval of the investment policy for the program/project using the sample given in Appendix IVa to this Decree;

b) The written approval of the program/project proposal from the competent authority;

c) Report on the internal appraisal results of the managing agency regarding the investment policy of the program/project funded by ODA or concessional loan; 

d) The pre-feasibility study report or the report on investment policy proposal for the program/project that is prepared using the sample given in Appendix IIIa, IIIb and IIIc to this Decree; 

dd) Reports on performance review of the program/project implementation in the previous period (for follow-up programs and projects in the new phase);

e) Comments of the provincial People’s Council on category A projects funded by ODA and concessional loans of which pre-feasibility study report is prepared by the provincial People’s Committee in accordance with point c of clause 1 of Article 23 in the Law on Public Investment;

g) Other relevant documents (if any).

2. The required minimum number of appraisal dossiers to be submitted to the Appraisal Council or the lead appraising agency is 10 sets.

3. Appraisal contents of the investment policy for public investment programs funded by ODA and concessional loans:

a) Alignment with criteria for determination of public investment program;

b) Regulatory conformance of the dossier submitted for appraisal;

c) Alignment with objectives of regional and territorial socio-economic development strategies, plans; relevant master plans in accordance with the laws on planning;

d) The contents specified in Article 29 of the Law on Public Investment, including basic details of the program as follows: objectives, scope, scale, beneficiaries, duration, time lines and fund allocation plan; funding sources and availability; mobilization of funding and other resources;  

dd) Socio-economic effectiveness, environmental protection and sustainable development.

4. Appraisal contents of the investment policy for programs/projects funded by ODA and concessional loans:

a) Necessity of investment;

b) Regulatory conformance of the dossier submitted for appraisal;

b) Alignment with objectives of the relevant strategies, plans and master plans in accordance with law on planning;

d) Alignment with project classification criteria in accordance with the Law on Public Investment;

dd) The contents specified in Articles 30 and 31 of the Law on Public Investment, including appraisal of basic details of the project, such as objectives, scale, form of investment, scope, location, area of land to be used, duration, time lines, plan for selection of main technologies, environmental protection solution, funding sources and availability; cost recovery and debt repayment possibility for loans; and fund allocation plan;

e) Socio-economic effectiveness, environmental protection and sustainable development.

5. The lead appraising agency for the pre-feasibility study report and report on investment policy proposal for programs and projects shall consult agencies assigned to appraise funding sources and availability in accordance with Article 33 of the Law on Public Investment in the process of appraising pre-feasibility study report and report on investment policy proposal.

6. Time limits for appraising the report on investment policy proposal and pre-feasibility study report of the program or project from the date the Appraisal Council or the lead appraising agency receives complete and valid dossier are as follows 

a) National target programs: No more than 60 days;

a) Public investment programs (except national target programs): No more than 45 days;

c) Category A projects: No more than 45 days;

d) Projects other than those prescribed in point a, b and c of this clause: No more than 30 days;

In case the dossier is invalid or the content of the pre-feasibility study report or report on investment policy proposal of the program or project does not conform with the provisions of Article 29, 30 and 31 of the Law on Public Investment, within no later than 10 days from the day on which the dossier is received, the Appraisal Council or the lead appraising agency shall send written feedback to request the proposing agency to fine tune the pre-feasibility study report or report on investment policy proposal.

7. Where it is necessary to extend time limit for appraisal of feasibility study report and report on investment policy proposal for the program/project, the Appraisal Council or the lead appraising agency shall: 

a) Report to the Prime Minister to seek his consent to the extension of time limit for appraisal of pre-feasibility study reports and reports on investment policy proposal of programs and projects falling under the approving competence of the National Assembly, Government, and Prime Minister;

b) Report to the head of the managing agency to allow the extension of time limit for appraisal of the report on investment policy proposal for the programs/projects falling under the investment policy approving competence of the managing agency;

c) The extended period shall not exceed the corresponding appraisal time specified in clause 6 of this Article. 

8. The Appraisal Council or the lead appraising agency for pre-feasibility study report of category A projects and the report on investment policy proposal for the program or project shall send the appraisal report as per the following regulations: 

a) For public investment programs: Submit it to the managing agency and competent authority in charge of making investment policy decision;

b) For category A projects falling under the approving competence of the Prime Minister: Comply with the provisions of clause 4 of Article 23 in the Law on Public Investment to submit it to the Prime Minister;

c) For other projects not specified at point a and b of this clause: Submit it to the appraising agency and competent authority in charge of making investment policy decision.

Article 16. Dossiers submitted to the competent authority and time limit for making the investment policy decision for the program/project funded by ODA and concessional loan

1. Dossiers submitted to the competent authority for making the investment policy decision for the program/project funded by ODA and concessional loan, including:

a) Documents specified in clause 1 of Article 15 herein, including the letter of transmittal, the pre-feasibility study report and report on investment policy proposal specified at points a and b of clause 1 of Article 15 in this Decree have been fine tuned according to the appraisal report of the Appraisal Council or the lead appraising agency;   

b) The appraisal report by the Appraisal Council or the lead appraising agency on investment policy for the program/project shall be prepared using the sample given in Appendix IVb enclosed with this Decree. 

2. The required number of dossiers submitted to competent authorities to seek their decisions on investment policies for programs/projects, subject to clause 1 of this Article, shall be 05 sets.

3. From the date the competent authority deciding on investment policy receives complete and valid dossiers, the time limit for making the investment policy decision shall be as follows:

a) Public investment programs (except national target programs): No more than 20 days;

b) Category A projects: No more than 15 days;

c) Projects other than those prescribed in point a and b of this clause: No more than 10 days.

4. Within 15 days from the date the competent authority makes investment policy decision of the program or project, the managing agency shall send such approved investment policy to the Ministry of Planning and Investment and the Ministry of Finance.

Article 17. Prior activities

Prior activities performed in the phase of preparation for implementation of programs/projects funded by financing for investment preparation, including:

1. Formulate a resettlement policy framework and submit it to a competent authority for approval in the process of appraising the pre-feasibility study report or the program/project document, and making investment decision;

2. Prepare a contractor selection plan; prepare dossiers of invitation for expression of interest, dossiers of invitation for pre-qualification, bidding documents, and requests for proposals.

Article 18. Major contents of the investment policy for the programs/projects funded by ODA and concessional loans

1. Name of the program/project.

2. Name of the project donor and co-donor.

3. Name of the managing agency.

4. Objectives and scale.

5. Location.

6. Project execution duration.

7. Total investment and fund structure (denominated in Vietnamese dong, converted into base currency), including:

a) ODA grants, ODA loans, concessional loans;

b) Counterpart fund.

8. Domestic financial mechanism and on-lending method.

9. Implementation method (as for projects funded by ODA grants).

10. Activities funded by ODA loans or concessional loans that are other than those prescribed in clause 2 of Article 6 herein (if any).

Article 19. Amendments to the investment policy for the programs/projects funded by ODA and concessional loans

1. The competence to make amendments to investment policy for the programs/projects shall be subject to clause 1 of Article 34 in the Law on Public Investment.

2. For public investment programs, projects of national importance:

a) Public investment programs to which amendments lead to changes to major contents of the investment policy decision as provided in Article 18 herein: Comply with the regulations laid down in point a of clause 2 of Article 34 in the Law on Public Investment;

b) Projects of national importance to which amendments lead to changes to major contents of the investment policy decision as provided in Article 18 herein: Comply with the regulations of the Law on Public Investment and the Government’s Decree on order and procedures for appraisal of projects of national importance, supervision and assessment of investment.

3. For programs/projects falling under the Prime Minister's delegated authority to make investment policy decisions:

a) Where the adjustment of the project implementation duration does not change the remaining main contents of the investment policy decision; the decreasing adjustment of ODA loan or concessional loan incurs financial obligations and does not change the remaining main contents of the investment policy decision, the managing agency shall send a written document and report on the reasons for such adjustment in order for the Ministry of Planning and Investment to incorporate opinions of the Ministry of Finance for submission to the Prime Minister to seek his decision;

b) Where the amendment to a program or project leads to a change in the main contents of the decision on investment policy, other than provided in point a of clause 3 of this Article, the managing agency shall adjust the investment policy according to the order and procedures specified in clause 4 of Article 14 in this Decree.

Required components of the request dossier to be submitted to the competent authority and the time limit for making the decision on amendment to the investment policy for the programs/projects shall be subject to Article 15 and 16 herein. The followings should be clarified: Reasons for amendment to the investment policies for the program/project; amendments corresponding to main contents of the pre-feasibility study report or investment policy proposal report. 

4. As for the program/project under the authority to decide on the investment policy of the head of the managing agency, if any amendment leads to any change in main contents of the investment policy decision, the managing agency shall amend the investment policy according to the order and procedures specified in clause 5 of Article 14 herein.

5. Where total investment in the program/project is adjusted due to exchange rate fluctuations; the reduction in ODA and concessional loan does not incur financial obligations and lead to any change in the remaining main contents of the investment policy decision referred to in Article 18 herein, the managing agency shall not follow the order and procedures for decision on amendment to the investment policy.

Section 2. DRAFTING, APPRAISING AND DECIDING ON INVESTMENT IN PROGRAMS/PROJECTS

Article 20. Decision-making authority on investment in the programs/projects funded by ODA and concessional loans

1. The Prime Minister shall be accorded authority to issue the decision on investment in the following programs and projects funded by ODA and concessional loans:

a) National target programs and projects of national importance for which the investment policy decision is made by the National Assembly;

b) Public investment programs that have already obtained investment policy decisions from the Government;

c) Public investment programs and projects funded by ODA and concessional loans of foreign donors in the national defence, security and religion fields and other programs/projects subject to the Government’s regulations.

2. The head of the managing agency shall make investment decision for programs and projects funded by ODA or concessional loans that are not prescribed in clause 1 of this Article and take responsibility for the investment efficiency of programs and projects.

Article 21. Procedures for drafting, appraising and making decision on investment in the programs/projects funded by ODA and concessional loans

1. Comply with the regulations laid down in Article 41 in the Law on Public Investment.

2. The feasibility study reports of the programs, projects are prepared in accordance with Article 44 of the Law on Public Investment and related regulations, taking into account the contents of the sample provided by foreign donors, while ensuring the consistency with the investment policy decision and harmonizing the procedures between Vietnam and foreign donors.

3. Dossiers, contents, time limit for appraisal and decision on investment in programs and projects shall comply with Article 45 of the Law on Public Investment and the Government's regulations detailing a number of articles of the Law on Public Investment, specifically as follows:

a) In case the program/project is eligible for full or partial on-lending of ODA or concessional loan from the state budget, the project owner shall enclose proofs of the financial capacity, debt repayment plans and other documents prescribed by regulations of law on public debt management;

b) Documents related to the program/project in foreign language must have attached Vietnamese translations;

c) Within 15 working days from the day on which a decision on investment in the program/project is issued by a competent authority, the managing agency shall notify the foreign donor and project owner of the decision, and send it to the Ministry of Planning and Investment, the Ministry of Finance and relevant agencies (original or notarized copy) together with the feasibility study report which has been approved and bears the seal of the managing agency for their implementation supervision and cooperation.

Article 22. Amendments to the programs and projects funded by ODA and concessional loans

1. The competence to make amendments to programs/projects shall be subject to clause 3 of Article 43 in the Law on Public Investment.

2. Amendments to the programs and projects are made in the cases specified in clauses 1 and 2 of Article 43 in the Law on Public Investment.

3. For projects of national importance: Comply with the regulations of Article 43 in the Law on Public Investment and the Government’s Decree on the order and procedures for appraisal of projects of national importance, supervision and evaluation of investment.

4. For category A, B and C programs/projects:

a) Contents of, order and procedures for formulating and appraising amendments to the programs/projects shall comply with Article 43 in the Law on Public Investment and the Government's Decree elaborating on a number of Articles of the Law on Public Investment;

b) Where the amendment to a program/project in progress leads to a change in the main contents of the decision on investment policy, the managing agency shall adjust the investment policy according to Article 19 in this Decree before following the order and procedures for amendment to the programs/projects.

5. Where amendments to the contents of programs/projects in progress result in the amendment, complement or renewal of specific international treaties, agreements on ODA and concessional loans:

a) Based on the revised investment policy decision and investment decision in the program/project approved by the competent authority, the managing agency shall cooperate with the proposing agency to sign the updated specific international treaties and specific agreements on ODA and concessional loans;

b) Where amendments to the contents of programs/projects do not result in the amendment to the main content of the investment policy decision, the managing agency shall adjust the investment decision by incorporating opinions of the Ministry of Planning and Investment, the Ministry of Finance, and relevant agencies as a basis to amend, update and renew specific international treaties and specific agreements on ODA and concessional loans.