Chương II Nghị định 40/2020/NĐ-CP: Lập, thẩm định, quyết định chủ trương đầu tư chương trình, dự án đầu tư công

Chapter II

DESIGN, ASSESSMENT AND GRANT OF INVESTMENT POLICY DECISIONS FOR PUBLIC INVESTMENT PROGRAMS AND PROJECTS

Article 5. Authority to grant decisions on investment policies for group-A, B and C public investment programs or projects funded by legitimate revenues of state regulatory authorities and public service units retained for investment purposes

1. Programs and projects of state regulatory authorities and public service units that are put under the control of ministries or central regulatory bodies:

a) Ministers and Heads of central regulatory bodies shall be accorded authority to make decisions on policies for investment in group-A, B and C public investment programs or projects of state regulatory authorities under their management; group-A programs or projects of other directly-affiliated public service units independently paying current expenses; group-A and B programs and projects of other directly-affiliated public service units, except those referred to in point b and c of this clause;

b) Heads of public service units shall, according to relevant regulations, independently pay their current and capital expenses incurred from decisions on investment policies for group-A, B and C programs and projects under their jurisdiction;

c) Heads of public service units independently paying their current expenses shall be accorded authority to make decisions on investment policies for group-B and C projects under their jurisdiction;

d) Heads of other public service units, except those stipulated in point b and c of this clause, shall be accorded authority to make decisions on investment policies for group-C projects under their jurisdiction.

2. Programs and projects of state regulatory authorities and public service units that are put under the control of local governments:

a) Presidents of People’s Committees at any level shall be accorded authority to make decisions on policies for investment in group-A, B and C public investment programs or projects of state regulatory authorities under their management; group-A programs or projects of directly-affiliated public service units independently paying their current expenses; group-A and B programs or projects of other directly-affiliated public service units, except those referred to in point b and c of this clause;

b) Heads of public service units shall, according to relevant regulations, independently pay their current and capital expenses incurred from decisions on investment policies for group-A, B and C programs and projects under their jurisdiction;

c) Heads of public service units independently paying their current expenses shall be accorded authority to make decisions on investment policies for group-B and C projects under their jurisdiction;

d) Heads of other public service units, except those stipulated in point b and c of this clause, shall be accorded authority to make decisions on investment policies for group-C projects under their jurisdiction.

3. Within 10 days of receipt of the approval of investment policies for public investment programs or projects, public service units prescribed point b, c and d of clause 1 of this Article and point b, c and d of clause 2 of this Article shall be accorded authority to submit decisions on the approval of investment policies for public investment programs or projects to relevant supervisory ministries, central regulatory bodies and People's Committees at any respective level for reporting purposes.

Article 6. Procedures and processes for grant of decisions on investment policies for public investment programs or projects funded by legitimate revenues of state regulatory authorities and public service units retained for investment purposes

1. Heads of ministries or central regulatory agencies:

a) Authorize directly affiliated units or public service units under their authority to prepare pre-feasibility study reports or investment policy recommendation reports for the public investment programs or projects referred to in point a of clause 1 of Article 5 herein;

b) Establish Assessment Councils or mandate competent units to assess pre-feasibility study reports or investment policy recommendation reports; assess funding sources and capacity to balance capital derived from legitimate revenues of state regulatory authorities and public service units which are retained for investment purposes;

c) Direct those units specified in point a of this clause to complete pre-feasibility study reports and investment policy recommendation reports; submit them to heads of ministries or central regulatory bodies to seek their approval decisions on policies for investment in public investment programs or projects.

2. Presidents of People’s Committees at any level:

a) Authorize specialized agencies, directly affiliated units or public service units under their authority to prepare pre-feasibility study reports or investment policy recommendation reports for the public investment programs or projects referred to in point a of clause 2 of Article 5 herein;

b) Establish Assessment Councils or mandate competent units to assess pre-feasibility study reports or investment policy recommendation reports; assess funding sources and capacity to balance capital derived from legitimate revenues of state regulatory authorities and public service units which are retained for investment purposes;

c) Direct those bodies and units specified in point a of this clause to complete pre-feasibility study reports and investment policy recommendation reports; submit them to Presidents of People’s Committees at any level to seek their approval decisions on policies for investment in public investment programs or projects.

3. Heads of public service units prescribed in point b, c and d of clause 1 of Article 5 and point b, c and d of clause 2 of Article 5 herein:

a) Authorize specialized agencies and directly affiliated units under their authority to prepare pre-feasibility study reports or investment policy recommendation reports for their own public investment programs or projects;

b) Establish Assessment Councils or mandate competent units to assess pre-feasibility study reports or investment policy recommendation reports; assess funding sources and capacity to balance capital derived from their own legitimate revenues which are retained for investment purposes;

c) Direct those units or bodies specified in point a of this clause to complete pre-feasibility study reports and investment policy recommendation reports; submit them to heads of public service units to seek their approval decisions on policies for investment in public investment programs or projects.

Article 7. Principles of and authority over grant of decisions on policies for investment in group-A, B and C foreign public investment projects

1. Principles of grant of decisions on policies for investment in foreign public investment projects shall be subject to clause 2 and 3 of Article 3 in the Law on Public Investment and other regulations laid down herein.

2. Authority over grant of decisions on policies for investment in foreign public investment projects shall be subject to Article 17 in the Law on Public Investment.

Article 8. Procedures and processes for grant of decisions on policies for investment in group-A, B and C foreign public investment projects

1. Heads of ministries or central regulatory bodies:

a) Authorize their directly controlled units to prepare pre-feasibility study reports or investment policy recommendation reports;

b) Establish Assessment Councils or authorize competent units to assess pre-feasibility study reports and investment policy recommendation reports; assess funding sources and capacity to balance project-related capital;

c) Direct those units specified in point a of this clause to complete pre-feasibility study reports and investment policy recommendation reports; submit them to respective competent authorities to seek their approval decisions on investment policies for public investment projects.

2. Presidents of People’s Committees at any level:

a) Authorize their specialized agencies and directly affiliated units under their authority to prepare pre-feasibility study reports or investment policy recommendation reports for public investment projects;

b) Establish Assessment Councils or authorize competent units to assess pre-feasibility study reports and investment policy recommendation reports; assess funding sources and capacity to balance project-related capital;

c) Direct those units specified in point a of this clause to complete pre-feasibility study reports and investment policy recommendation reports; submit them to respective competent authorities to seek their approval decisions on investment policies for public investment projects.

3. Components of pre-feasibility study reports or investment policy recommendation reports for group-B and C projects:

a) Investment necessity, prerequisites for carrying out investments, assessment of relevance of the projects to related planning schemes prescribed in the host country's laws;

b) Objectives, scale and location of investment;

c) Total estimated investment;

d) Anticipated investment schedule and phasing;

dd) Factors related to security and environment; preliminary determination of socio-economic effectiveness;

e) Division of the project into constituent projects (if any);

g) Implementation measures.

4. Subject matters of the assessment of investment policies for public investment projects, including:

a) Necessity of investment in the public investment project;

b) Compliance with the domestic laws of the host country and the Socialist Republic of Vietnam;

c) Relevance of the public investment project to the related planning scheme provided in the host country’s laws;

d) Objectives, scale, location and schedule of implementation of the investment project; factors related to security and environment;

dd) Socio-economic effectiveness.

Article 9. Application and documentation requirements, subject matters and time of assessment of pre-feasibility study reports or investment policy recommendation reports for group-A, B or C public investment programs or projects

1. Application and documentation requirements of pre-feasibility study reports or investment policy recommendation reports for group-A, B or C public investment programs or projects, including:

a) Application or request form submitted to the competent authority to seek their decision on the investment policy for a public investment program or project;

b) Pre-feasibility study report for the group-A public investment project; the investment policy recommendation report for a group-B or C public investment program or project referred to in Article 29, 30 and 31 in the Law on Public Investment;

c) Other relevant documents (if any).

2. The required number of sets of application or request documents for the assessment submitted to the Assessment Council or the entity presiding over the assessment shall be 10 sets.

3. Subject matters of the assessment of an investment policy for a public investment program, including:

a) Conformance to criteria for determination of public investment programs;

b) Conformity of components of application or request documentation for the assessment to laws;

c) Relevance to related strategic objectives; socio-economic development plans; plans for development of sectors or industries; related planning schemes provided in law on planning;

d) Assessment subject matters prescribed in Article 29 of the Law on Public Investment, including specific assessments of basic components of a public investment program, including objectives, scope, scale and subjects of investment, time, schedule of implementation of the program and estimated capital to be provided; funding sources and capacity to balance investment capital; mobilization of funding and other sources;

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

4. Subject matters of the assessment of an investment policy for a group-A, B or C public investment project, including:

a) Necessity of investment in the public investment project;

b) Conformity of components of application or request documentation for the assessment to laws;

b) Relevance of the project to strategic objectives; related plans and planning schemes provided for in law on planning;

d) Conformance to criteria for classification of group-A, B or C public investment projects;

dd) Assessment subject matters prescribed in Article 30 and 31 in the Law on Public Investment, including specific assessments of basic components of the public investment project like investment objectives, scale, form, scope, location and size of land necessary for implementation of the project, time length and schedule, alternatives for main technologies for implementation of the project, environmental protection approaches, funding sources, investment capital balancing capacity; capital recovery and debt repayment capability; intended fund allocation;

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

5. Authorities presiding over the assessment of pre-feasibility study reports and investment policy recommendation reports for public investment programs and projects shall have the burden of consulting with authorities mandated to assess funding sources and capacity to balance investment capital for public investment programs and projects according to the provisions of clause 2, 3 and 4 of Article 33 in the Law on Public Investment during the process of carrying out the assessment of pre-feasibility study reports and investment policy recommendation reports for public investment programs and projects.

6. Durations or time limits for assessment of pre-feasibility study reports or investment policy recommendation reports for group-A, B or C public investment programs or projects after Assessment Councils or authorities presiding over assessment receive valid submitted documents shall be as follows:

a) National target programs: Not exceeding 60 days;

a) Public investment programs (exclusive of national target programs): Not exceeding 45 days;

c) Group-A public investment projects: Not exceeding 45 days;

d) Group-B and C public investment projects: Not exceeding 30 days;

In case where any submitted document is invalid, or any component of pre-feasibility study reports or investment policy recommendation reports for public investment programs or projects is not corresponding to regulations laid down in Article 29, 30 and 31 in the Law on Public Investment, within the maximum duration of 10 days of receipt of submitted documents, Assessment Councils or authorities presiding over assessment shall send their written opinions to authorities applying for or requesting assessment to provide supplementary documents or complete the components of pre-feasibility study reports and investment policy recommendation reports for public investment programs and projects.

7. In case where any extension of the time limit for assessment of pre-feasibility study reports or investment policy recommendation reports for public investment programs or projects, Assessment Councils or authorities presiding over assessment shall:

a) Seek the Prime Minister’s consent to the extension of time limit for assessment of pre-feasibility study reports or investment policy recommendation reports for public investment programs or projects under the authority to make decisions on investment policies of the National Assembly, Government or Prime Minister;

b) Seek the consents from Presidents of People’s Committees at any relevant level to the extension of the time limit for assessment of pre-feasibility study reports or investment policy recommendation reports for public investment programs or projects under the authority to make decisions on investment policies of People’s Councils at any respective level;

c) Seek the consents from ministers or heads of central regulatory bodies to the extension of the time limit for assessment of investment policy recommendation reports for public investment programs or projects under the authority to make decisions on investment policies of ministries and central regulatory bodies;

d) Ensure that the extension period that they request is not allowed to exceed the respective assessment durations or time limits specified in clause 6 of this Article.

8. Assessment Councils or authorities presiding over assessment of pre-feasibility study reports for group-A public investment projects, or investment policy recommendation reports for group-B and C public investment programs or projects shall submit assessment reports in accordance with the following regulations:

a) With respect to public investment programs, they must send these reports to program owners and authorities having competence in making investment policy decisions;

b) With respect to group-A public investment projects under the Prime Minister’s decision-making authority, subject to clause 5 of Article 23 in the Law on Public Investment, they must also send these reports to the Government Office for the purpose of reporting to the Prime Minister;

c) With respect to group-A public investment projects under the decision-making authority of provincial-level People’s Councils, their submission of these reports shall be subject to clause 2 of Article 24 in the Law on Public Investment;

d) With respect to group-B and C public investment projects, they must send these reports to project management units and authorities having competence in making investment policy decisions.

Article 10. Application or request documentation submitted to competent authorities and duration of grant of decisions on investment policies for group-A, B and C public investment programs or projects

1. Application or request documentation submitted to competent authorities to seek their decisions on investment policies for group-A, B and C public investment programs and projects shall be comprised of the followings:

a) Documents specified in clause 1 of Article 9 herein, out of which components of request or application forms and pre-feasibility study reports or investment policy recommendation reports prescribed in point a and b of clause 1 of Article 9 herein have already been completed according to assessment reports of Assessment Councils or authorities presiding over assessment activities;

b) Assessment reports regarding investment policies for public investment programs or projects issued by Assessment Councils or authorities presiding over assessment activities.

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

3. Upon receipt of full and valid application or request documentation submitted to seek competent authorities’ decisions on investment policies for public investment programs or projects, the time limits for issuance of these decisions shall be as follows:

a) Public investment programs (except national target programs): Not exceeding 20 days;

c) Group-A public investment projects: Not exceeding 15 days;

c) Group-B and C public investment projects: Not exceeding 10 days;

With respect to any public investment program or project under the authority to make decisions on investment policies of People’s Councils at any respective level, time limits for issuance of these decisions shall match the meeting agenda of People's Council.

4. Within 15 days after competent authorities issue decisions on policies for investment in public investment programs or projects,

a) Ministries, central regulatory bodies and local authorities administering public investment programs or projects using the central budget's capital must submit them to the Ministry of Planning and Investment and/or the Ministry of Finance to seek their consent to those programs or projects approved by competent authorities;

b) Local authorities at any relevant level that administer public investment programs or projects using the state budget's capital must submit them to Departments of Planning and Investment and/or Departments of Finance and/or specialized investment management authorities at the same level shall make their decisions on investment policies for those programs or projects already obtaining approval from competent authorities.

Article 11. Cases of adjustment in investment policies or request or application documentation submitted to competent authorities and duration of grant of decisions on adjustment in investment policies for group-A, B and C public investment programs or projects

1. With respect to any public investment program or project that have already obtained competent authorities’ decisions on investment policies, but not investment decisions, if there is any change in the subject matters of investment policy decisions, any adjustment in investment policies shall be subject to Article 34 in the Law on Public Investment.

2. If any public investment program or project already obtaining competent authorities’ investment decisions is in progress or under development, all adjustments in policies for investment in these programs and projects shall be subject to regulations laid down in clause 5 of Article 43 in the Law on Public Investment.

3. Application or request documentation submitted to competent authorities to seek their decisions on adjustment in investment policies for public investment programs and projects shall be comprised of the followings:

a) Application or request documentation submitted to competent authorities to seek their decisions on adjustment in investment policies for public investment programs and projects. Such documentation must clarify the following information: Reasons for adjustment in investment policies for public investment programs and projects; adjustments corresponding to main subject matters of pre-feasibility study reports or investment policy recommendation reports prescribed in Article 29, 30 and 31 in the Law on Public Investment;

b) Enclosed documents, including decisions on investment policies for public investment programs or projects; decisions on adjustment in previous investment policies for public investment programs or projects (if any); those documents specified in point b of clause 1 of Article 9 herein that are supplemented or enriched with any adjustment in investment policies;

c) Assessment reports regarding any adjustment in investment policies for public investment programs or projects that are issued by Assessment Councils or authorities presiding over assessment activities;

d) Other relevant documents (if any).

4. The required number of documents submitted to competent authorities to seek their decisions on adjustment in investment policies for public investment programs or projects shall be subject to clause 2 of Article 9 herein.

5. After receipt of full and valid documentation from authorities having competence in issuing decisions on adjustment in investment policies for public investment programs or projects, time limits for approval and issuance of these decisions shall be as follows:

a) Public investment programs (except national target programs): Not exceeding 20 days;

c) Group-A public investment projects: Not exceeding 15 days;

c) Group-B and C public investment projects: Not exceeding 10 days.

Article 12. Subjects and components of the preliminary evaluation of environmental impacts used as a basis to grant decisions on investment policies

1. The preliminary evaluation of environmental impacts is a component of a pre-feasibility study report or investment policy recommendation report. Subjects of the preliminary evaluation of environmental impacts are public investment projects subject to regulatory requirements for approval of investment policy decisions as prescribed in laws on environmental protection and Article 99 in the Law on Public Investment.

2. Tasks and components of the preliminary evaluation of environmental impacts, including:

a) Evaluating the relevance of project sites to the national environmental protection strategy and planning scheme and environmental protection tasks specified in regional, provincial and other associated planning schemes;

b) Identifying and forecasting key environmental impacts likely to be caused by the evaluated public investment project according to plans regarding production, business, service, production technology size and project sites;

c) Evaluating the environmental sensitivity according to project site plans;

d) Analyzing, evaluating and selecting the optimal plan on the size of production, business, service, production technology and waste treatment technology (if any), and project sites in order to meet the requirements as to environmental protection; and on key environmental protection solutions;

dd) Determining what is to be evaluated in the process of environmental impact evaluation or environmental licensing (if any). This task is to preliminarily determine the impacts that a project may have on the environment, natural resources or biodiversity, and to give commitments to apply environmental protection measures or solutions.