Nghị định 20/2023/NĐ-CP sửa đổi Nghị định 114/2021/NĐ-CP về quản lý và sử dụng vốn hỗ trợ phát triển chính thức (ODA) và vốn vay ưu đãi của nhà tài trợ nước ngoài

DECREE

AMENDMENTS AND SUPPLEMENTS TO SEVERAL ARTICLES OF GOVERNMENT’S DECREE NO. 114/2021/ND-CP DATED DECEMBER 16, 2021, REGARDING MANAGEMENT AND USE OF OFFICIAL DEVELOPMENT ASSISTANCE (ODA) OR SOFT LOANS FROM FOREIGN DONORS

Pursuant to the Law on Government Organization dated June 19, 2015; the Law on Amendments and Supplements to certain Articles of the Law on Government Organization and the Law on Local Government Organization dated November 22, 2019;

Pursuant to the Law on State Budget dated June 25, 2015;

Pursuant to the Law on Bidding dated November 26, 2013;

Pursuant to the Law on Construction dated June 18, 2014; the Law on Amendments and Supplements to several Articles of the Law on Construction dated June 17, 2020;

Pursuant to the Law on Management of Public Debts dated November 23, 2017;

Pursuant to the Law on Public Investment dated June 13, 2019;

Pursuant to the Law on Amendments and Supplements to certain Articles of the Law on Public Investment, the Law on Public-Private Partnership Investment, the Law on Investment, the Law on Housing, the Law on Bidding, the Law on Electricity, the Law on Enterprises, the Law on Special Excise Duties, and the Law on Civil Judgment Enforcement, dated January 11, 2022;

Upon the request of the Minister of Planning and Investment;

The Government herein promulgates the Decree on amendments and supplements to several Articles of the Government’s Decree No. 114/2021/ND-CP dated December 16, 2021, regarding management and use of official development assistance (ODA) or soft loans from foreign donors.

Article 1. Amendments and supplements to several Articles of the Government’s Decree No. 114/2021/ND-CP dated December 16, 2021, regarding management and use of official development assistance (ODA) or soft loans from foreign donors

1. Amending Clause 2 of Article 12 as follows:

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

a) Category-A Investment programs or projects financed by ODA or soft loans, except for those specified in clause 1 of this Article;

b) Investment programs or projects financed by non-refundable ODA grants, including:  Category-A investment programs or projects; investment programs or projects associated with regulatory policy frameworks; investment programs or projects in the national defence, security and religion domains; sector-specific approach programs; procurement of goods subject to approval from the Prime Minister;”

2. Inserting clause 3a and 3b into Article 12 as follows:

“3a. Ministers and Heads of managing agencies shall be accorded authority to decide policies for investment in Category-B and Category-C investment projects financed by ODA or soft loans from foreign donors; grant approval for technical assistance projects financed by ODA or soft loans in preparation for investment projects intra vires, except for the investment projects mentioned in clause 2 of this Article.

3b. Provincial-level People’s Councils shall be accorded authority to decide policies for investment in Category-B and Category-C investment projects financed by ODA or soft loans from foreign donors; grant approval for technical assistance projects financed by ODA or soft loans in preparation for investment projects intra vires, except for the investment projects mentioned in clause 2 of this Article.”

3. Amending point d of clause 2 of Article 13 as follows:

“d) The Prime Minister considers granting approval for program/project proposals in terms of the following: Name of the program/project; name of the foreign donor and co-donor (if any); name of the managing agency; main objectives and expected results; total estimated investment and funding structure; domestic financial mechanism, on-lending method.” 

4. Inserting clause 5 into Article 13 as follows:

“5. Modification of program/project proposals:

In the course of formulating, appraising, and deciding an investment policy; deciding modification of an investment policy, where there is any change in the main contents of a program/project proposal approved by the Prime Minister, the managing agency shall follow the formalities and procedures for modification of the program/project proposal as stated hereunder:

a) If the adjustment in total investment ascribed to the change in the exchange rate; the increase in an ODA or soft loan does not entail any change in other main contents of the proposal of the program/project specified in point d of clause 2 of this Article, the managing agency shall not need to modify the program/project proposal;   

b) If modification of the main contents of the proposal of the program/project specified in point d of clause 2 of this Article does not lead to any increase in the ODA or soft loan, the managing agency shall notify reasons for such modification in writing in order for the Ministry of Planning and Investment to integrate comments of the Ministry of Finance and other relevant agencies into a report to be submitted to the Prime Minister to seek his approval decision; 

c) In case of any increase in ODA or soft loan, the managing agency shall formulate the program/project proposal, and follow the formalities and procedures specified in clause 2 of this Article; the dossier of application for modification of the program/project proposal submitted to the competent authority, and the time of decision on modification of the program/project proposal shall be as defined in clause 3 of this Article. The dossier should clarify reasons for modifications and subject matters that need to be modified in the program/project proposal;  

d) National target programs, projects of national importance, public investment programs; Category-A investment programs, projects; programs or projects under the approval-granting authority of the Prime Minister shall be exempt from the requirements for application for modification of program/project proposals specified in this clause."

5. Inserting clause 5a and 5b into Article 14 as follows:

“5a. Order and procedures for making an investment policy decision for a Category-B and Category-C program/project financed by an ODA or soft loan under the decision-making authority of a Minister or Head of the managing agency shall be subject to the following regulations:

a) The Minister or the Head of the managing agency authorizes the directly affiliated unit to prepare an investment policy recommendation report;

b) The managing agency receives written comments from the Ministry of Planning and Investment, the Ministry of Finance and entities involved;

c) The Minister or the Head of the managing agency establishes a Council, or authorizes another competent entity to appraise that investment policy recommendation report, funding sources and availability of capital for investment;

d) The Minister or the Head of the managing agency instructs the unit specified in point a of this clause to complete the investment policy recommendation report according to appraisal comments and consultative opinions of the Ministry of Planning and Investment, the Ministry of Finance and entities involved;

dd) Based on appraisal comments of relevant units, and consultative opinions of the Ministry of Planning and Investment, the Ministry of Finance and entities involved, the Minister or the Head of the managing agency issues the investment policy decision.

5b. Order and procedures for making an investment policy decision for a Category-B and Category-C program/project financed by an ODA or soft loan under the decision-making authority of the provincial People’s Council shall be subject to the following regulations:

a) The President of the provincial People’s Committee authorizes a directly affiliated unit to prepare an investment policy recommendation report;

b) The provincial People’s Committee receives written comments from the Ministry of Planning and Investment, the Ministry of Finance and entities involved;

c) The President of the provincial People’s Committee establishes a Council, or authorizes a relevant unit to appraise the investment policy recommendation report, funding sources and availability of capital for investment;

d) The President of the provincial People’s Committee instructs the unit specified in point a of this clause to complete the investment policy recommendation report according to appraisal comments and consultative opinions of the Ministry of Planning and Investment, the Ministry of Finance and entities involved;

dd) Based on appraisal comments of relevant units, and consultative opinions of the Ministry of Planning and Investment, the Ministry of Finance and entities involved, the provincial People’s Committee seeks approval for the investment policy decision from the provincial People’s Council.”

6. Amending clause 7 of Article 14 as follows:

“7. In case there is any inconsistencies between the contents of the pre-feasibility study report, the investment policy recommendation report with respect to a national target program, project of national importance, or public investment program; ODA or soft loan-financed Category-A investment program/project and the main contents of the program/project proposal obtaining approval from the Prime Minister as defined in point d of clause 2 of Article 13, the managing agency shall clarify these inconsistencies in the written request for appraisal of the pre-feasibility study report and the investment policy recommendation report in accordance with point b of clause 1 of Article 15 herein.” 

7. Inserting clause 7a into Article 14 as follows:

“7a. In case where there are any inconsistencies between the contents of the investment policy recommendation report as to the project that is not covered under clause 7 of this Article and the main contents of the program/project proposal obtaining approval from the Prime Minister as defined in point d of clause 2 of Article 13, the managing agency shall first follow the order and procedures for modification of the program/project proposal as defined in clause 5 of Article 13, and then the order and procedures for seeking the project investment policy decision from the competent authority.”

8. Inserting point b1 into clause 1 of Article 15 as follows:

“b1) Letter of opinions from the Ministry of Planning and Investment, the Ministry of Finance and entities involved (for ODA or soft loan-financed Category-B or Category-C investment projects).”

9. Amending point c of clause 1 of Article 15 as follows:

“c) Report on results of the internal appraisal conducted by the managing agency regarding the investment policy for the ODA or soft loan-financed program/project (applicable to a national target program, project of national importance, public investment program; ODA or soft loan-financed Category-A investment program/project, or other ODA or soft loan-financed investment program/project under the authority to decide the investment policy of the Prime Minister).” 

10. Inserting point a1 into clause 4 of Article 15 as follows:

“a1) Relevance to the main contents of the program/project proposal approved by the competent authority." 

11. Amending point b of clause 7 of Article 15 as follows:

b) Report to the Minister, the Head of the managing agency or the provincial People’s Council to seek their consent to the extension of the time limit for appraisal of the investment policy recommendation report for the project falling under the authority to decide the investment policy of the Minister, the Head of the managing agency or the provincial People’s Council.”

12. Amending Article 17 as follows:

“1. After approval for the investment policy for a project; and before conclusion of the international treaty or agreement on ODA or soft loan, where necessary to shorten the time of bidding, the competent person may undertake implementation of the procedures for formulation, appraisal and approval of the contractor selection plan that will serve as a basis for implementation of contractor pre-selection activities, including: 

a) Formulating, appraising, and approving the invitation for expression of interest or the invitation for prequalification (if any);

b) Shortlisting bidders eligible to participate in the project's purchases (if any);

c) Formulating, appraising, and approving the invitation for bid or the bid requirements.

2. Bases for formulating, appraising and approving the contractor selection plan for prior activities, including:

a) Decision on approval for the investment policy for the project;

b) Donor’s uncontentious opinions as to formulation, appraisal and approval of the contractor selection plan for prior activities.

3. The bidder participating in the expression of interest or prequalification shall be liable for all costs associated with preparation and submission of their expression of interest or prequalification documents. In the event of shortlisting bidders before failing to enter into an international treaty or agreement on an ODA or soft loan for a project, the investor shall have the duty to notify shortlisted bidders of bid cancellation.  

4. The investor is allowed to issue the invitation for bid or the bid requirements only after the international treaty or agreement on ODA or soft loan for the project is concluded."

13. Inserting clause 2a into Article 19 as follows:

"2a. For Category-A, B and C programs/projects:

a) Where the adjustment of the project implementation duration does not change the remaining main contents of the investment policy decision; the adjustment leading to the decrease in an ODA or soft loan incurs financial obligations and does not lead to any change in the remaining main contents of the investment policy decision as prescribed in Article 18 of this Decree, the managing agency shall submit a written report, clarifying the reasons for such adjustment, in order for the Ministry of Planning and Investment to prepare a final report, including 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 any change in the main contents of the investment policy decision in a way that is not prescribed in point a of clause 2a of this Article, the managing agency shall modify the investment policy according to the order and procedures specified in point c of clause 2 of Article 34 in the Law on Public Investment.”

14. Amending clause 3 of Article 19 as follows:

For programs/projects falling under the Prime Minister's delegated authority to make investment policy decisions, except Category-A programs/projects:

a) Where the adjustment of the project implementation duration does not change the remaining main contents of the investment policy decision; the adjustment leading to the decrease in an ODA or soft loan incurs financial obligations and does not change the remaining main contents of the investment policy decision, the managing agency shall submit a written report, clarifying the reasons for such adjustment, in order for the Ministry of Planning and Investment to prepare a final report, including 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 any change in the main contents of the decision on investment policy in a way that is not prescribed in point a of clause 3 of this Article, the managing agency shall modify 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 a program/project shall be as defined in Article 15 and 16 herein. The followings should be clarified in the request dossier: Reasons for amendment to the investment policy for the program/project; amendments corresponding to the main contents of the pre-feasibility study report, or the investment policy recommendation report.” 

15. Amending clause 4 and 5 of Article 19 as follows:

 “4. As for the project under the authority to decide the investment policy of the Minister, the head of the managing agency, or the provincial People’s Council, if any amendment entails 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 5a and 5b of Article 14 in this Decree.

5. Where total investment in the program/project is adjusted due to the exchange rate fluctuation; the reduction in the ODA or soft loan neither incurs financial obligations nor leads to any change in the remaining main contents of the investment policy decision as prescribed in Article 18 of this Decree, the managing agency shall not be required to follow the order and procedures for modification of the project proposal and decision on amendment to the investment policy decision.”

16. Inserting point c into clause 2 of Article 23 as follows:

“c) Be empowered to approve documents of the technical assistance project financed by the non-refundable ODA grant from the foreign donor in preparation for the investment project intra vires; and decide not to follow the order and procedures for deciding the project execution policy."

17. Inserting clause 3 into Article 23 as follows:

“3. The provincial People’s Council shall be empowered to approve documents of the technical assistance project financed by the non-refundable ODA grant from the foreign donor in preparation for the investment project intra vires, and decide not to carry out the order and procedures for deciding the project execution policy."

18. Amending point dd of clause 2 of Article 26 as follows:

“dd) Based on the appraisal results, the head of the managing agency shall decide whether the project or non-project documents are approved. For technical assistance projects to be executed in preparation for investment projects under the jurisdiction of local authorities, based on the appraisal results, the provincial People's Committee shall seek the approval for project documents from the provincial People's Council."

19. Inserting point a1 into clause 1 of Article 33 as follows:

“a1) The Ministry of Finance shall seek the Prime Minister's decision on negotiation on the ODA or soft loan. The package of application documents for the Prime Minister’s decision on negotiation shall be composed of the following:  Recommendation form for the decision on negotiation;  draft ODA or soft loan agreement; investment decision for the project."

20. Amending point b of clause 1 of Article 33 as follows:

“b) Based on the Prime Minister’s approval for negotiation, the Ministry of Finance shall consult the Ministry of Foreign Affairs and relevant agencies on the draft ODA or soft loan agreement. The consulted agencies shall reply to the Ministry of Finance in writing within 05 days of receipt of the opinion survey form and other relevant documents.”

21. Amending clause 2 and 3 of Article 48 as follows:

“2. The managing agency sends the Ministry of Planning and Investment the application form for permission to use surplus funds of ODA or soft loan-financed programs/projects.  The Ministry of Planning and Investment shall act a focal point to incorporate the comments of the Ministry of Finance, other relevant agencies and foreign donors into a report to be submitted to the Prime Minister to seek his decision on such use.

3. According to the Prime Minister’s decision on use of the surplus fund of an ODA or soft loan-financed program/project, the managing agency shall follow the order and procedures for deciding the investment policy (with respect to a new project), modifying the investment policy (with respect to using the surplus fund for promoting the efficiency of the project in progress) under their corresponding delegated authority to decide or modify investment policies; and follow the order and procedures for deciding or modifying investment policies referred to in Article 14, 15, 16, 18 and 19 in this Decree.”

22. Inserting clause 3a into Article 48 as follows:

“3a. Concerning use of the surplus fund of a program/project financed by non-refundable ODA grants, after receipt of opinions from the donor, Ministry of Planning and Investment, and Ministry of Finance, the managing agency shall follow the order and procedures for deciding the investment policy (with respect to a new project), modifying the investment policy (with respect to using the surplus fund for promoting the efficiency of the project in progress) under their corresponding delegated authority to decide or modify investment policies; and follow the order and procedures for deciding or modifying investment policies referred to in Article 14, 15, 16, 18 and 19 in this Decree.”

23. Replacing Appendix II as follows:

“Appendix II

FORM OF PROPOSAL FOR ODA OR SOFT LOAN-FINANCED PROGRAM/PROJECT

I. MAJOR INFORMATION

1. Program/project title (written in both Vietnamese and English).

2. Managing agency, proposal-making unit and program/project owner (proposed):  Name, address, other relevant information.

3. Proposed donor and co-donor (if any) giving assistance in execution of the program/project.

II. BASES

- Importance, necessity and feasibility of the program or project in socio-economic, environmental, scientific, and technological aspects, and according to related planning in accordance with legislation on planning.

- Efforts that have been/are being made to resolve the issues that arise.

- Programs/projects in progress in the same sector (if any).

- Proposed foreign donor (clarify reasons for use of the ODA or soft loan from this foreign donor).

III. CONTENTS

1. Objectives, location, scale and scope of the program/project: Describe overall objectives, specific goals, location, scale and scope of the program/project.

2. Anticipated main results of the program/project: Summary of the anticipated main results.

3. Scheduled time of execution of the program/project (including determination of the construction and operation time).

4. Estimated total investment, expected funding structure for execution of the project, and proposed financial mechanism:

- Total investment: Foreign non-refundable ODA grant, ODA loan, soft loan, counterpart funds specific to types of base currency and equivalencies in Vietnamese dong and US dollar (using the recorded exchange rate published by the Ministry of Finance at the proposal-making time).

- Loan terms and conditions: Specify the type of interest rate (floating/fixed interest rate), expected interest rate and fees (if any); for the program/project that intends to be financed by a floating rate loan, specify the floating interest rate in the proposal content, including the underlying floating interest rate (Sibor, Eurobor...), and the margin reference interest rate quoted at the loan proposal time; the expected loan term and grace period.   

- Proposal for the domestic financial mechanism, the annual planned schedule of loan disbursement (associated with program/project execution duration).

- Plan to provide debt repayment funds.

5. Plan to use the loan; plan to use the counterpart capital (including the equity availability plan); plan to secure the loan; plan to repay debts, and proposal to grant on-lending permission to the authorized agency (with or without bearing credit risk) in the event that the project proposal is on-lending of the borrowed fund to a state enterprise and public non-business unit.

6. Impact assessment:

- Preliminary assessment of socio-economic and environmental efficiency (if any).

- Preliminary assessment of impacts on the medium-term public investment plan conducted by the proposal-making agency."

Article 2. Abolishment or replacement of several clauses, articles, and appendices of Decree No. 114/2021/ND-CP

1. Abolishing point c of clause 2 of Article 12; clause 3 of Article 12; clause 5 of Article 14; clause 10 of Article 18; clause 2 of Article 98.

2. Replacing Appendix II.

Article 3. Implementation

1. This Decree is entering into force as from March 1, 2022.

2. Grandfather clauses:

a) National target programs, projects of national importance, public investment programs; Category-A investment programs/projects; programs/projects under the approval-granting authority of the Prime Minister that have obtained approval for the Proposals for implementation thereof, or investment policies before the effective date of this Decree shall continue to carry out the following order and procedures prescribed in the Decree No. 114/2021/ND-CP dated December 16, 2021 on management and use of Official Development Assistance (ODA) and soft loans from foreign donors;

b) If ODA or soft loan-financed programs/projects already obtaining the Prime Minister’s approval for the program/project proposals need any amendment or modification during the implementation period, such amendment or modification shall be subject to regulations on modification of program/project proposals laid down in this Decree;

c) Other programs/projects not covered under point a shall be exempted from the requirements concerning modification of program/project proposals set forth in clause 4 of Article 1 in this Decree;

d) If Category-B and Category-C public investment projects financed by ODA or soft loans from foreign donors have obtained investment policies from the Prime Minister before the effective date of this Decree, entities or persons having the authority to decide investment policies specified in clause 2 of Article 1 in this Decree shall have the authority to modify investment policies and carry out the order and procedures for modifying investment policies as per clause 5 of Article 1 in this Decree;

dd) Before the effective date of this Decree, if the procedures for preparation and appraisal of Category-B and Category-C public investment projects financed by ODA or soft loans have been completed; and there have been written documents on appraisal as a basis for deciding investment policies, or modifying investment policies as prescribed in Article 14, 15, 16, 18 and 19 of the Decree No. 114/2021/ND-CP dated December 16, 2021 on management and use of Official Development Assistance (ODA) or soft loans from foreign donors, procedures for seeking the Prime Minister’s decision stipulated in the Decree No. 114/2021 /ND-CP dated December 16, 2021 on the management and use of Official Development Assistance (ODA) or soft loans from foreign donors  may continue.

Article 4. Implementation

1. Ministers, Heads of Ministry-level agencies, Heads of Governmental bodies, and Presidents of People’s Committees of centrally-affiliated cities and provinces, shall be responsible for implementing this Decree.

2. The Ministry of Planning and Investment shall lead and cooperate with concerned agencies in taking responsibility for guidance on implementation of this Decree.

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