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

Chapter III

DESIGN, ASSESSMENT AND GRANT OF DECISIONS ON INVESTMENT IN PUBLIC INVESTMENT PROGRAMS AND PROJECTS

Article 13. Authority to grant decisions on investment in public investment programs or projects using legitimate revenues retained by state regulatory authorities and public service units 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 investment in group-A, B and C public investment programs or projects of state regulatory authorities under their jurisdiction;

b) Heads of public service units shall be accorded authority to issue decisions on investment in group-A, B and C public investment programs or projects under their jurisdiction;

c) Public service units stipulated in point b of this clause shall be designated as owners of public investment projects without construction components under their jurisdiction.

2. Public investment programs or 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 relevant level shall be accorded authority to make decisions on investment in group-A, B and C public investment programs or projects of state regulatory authorities under their jurisdiction;

b) Heads of public service units shall be accorded authority to issue decisions on investment in group-A, B and C public investment programs or projects under their jurisdiction;

c) Public service units stipulated in point b of this clause shall be designated as owners of public investment projects without construction components under their jurisdiction.

Article 14. Procedures and processes for grant of decisions on investment in public investment programs or projects using legitimate revenues retained by state regulatory authorities and public service units for investment purposes

1. Public investment programs or projects without construction components under the control of ministries or central regulatory bodies:

a) With respect to public investment programs or projects under the authority to issue investment decisions of Ministers and Heads of central regulatory bodies:

Based on investment policies already decided by competent authorities, Ministers or Heads of central regulatory bodies shall authorize program or project owners to prepare feasibility study reports for these programs or projects; establish Assessment Councils or mandate competent units to carrying out assessment of feasibility study reports for these programs or projects;

In this case, program or project owners may consult assessment opinions to complete feasibility study reports for these programs or projects before submitting them to Ministers or Heads of central regulatory authorities to seek their decisions on investment in these programs and projects;

b) With respect to public investment programs or projects under the authority to issue investment decisions of Heads of public service units: These Heads shall lead the preparation and formulation of feasibility study reports for these programs or projects according to investment policies approved by competent authorities; conduct the assessment and approval of these programs or projects and bear responsibility for any of their decisions in accordance with laws in force.

2. Public investment programs or projects without construction components under the control of local governments:

a) With respect to public investment programs or projects under the authority to make investment decisions of Presidents of People's Committees at any relevant level:

Based on investment policies already decided by competent authorities, Presidents of People's Committees at any relevant level shall authorize program or project owners to prepare feasibility study reports for these programs or projects; establish Assessment Councils or mandate competent units to carrying out assessment of feasibility study reports for these programs or projects;

In this case, program or project owners may consult assessment opinions to complete feasibility study reports for these programs or projects before submitting them to Presidents of People's Committees at any relevant level to seek their decisions on investment in these programs and projects;

b) With respect to public investment programs or projects under the authority to issue investment decisions of Heads of public service units: These Heads shall lead the preparation and formulation of feasibility study reports for these programs or projects according to investment policies approved by competent authorities; conduct the assessment and approval of these programs or projects and bear responsibility for any of their decisions in accordance with laws in force.

Article 15. Principles of, authority over and tasks involved in design, formulation, assessment, appraisal and grant of decisions on group-A, B and C foreign public investment projects

1. Principles of grant of decisions on investment in group-A, B and C foreign public investment projects shall be implemented according to clause 2 of Article 3 in the Law on Public Investment and domestic laws of host countries and the Socialist Republic of Vietnam.

2. Authority over grant of decisions on investment in foreign public investment projects shall be subject to Article 35 in the Law on Public Investment.

3. Tasks or workload involved in public investment projects with construction components of Vietnam’s overseas representative missions shall be subject to the Government’s regulations on management of public investment projects of overseas representative missions of the Socialist Republic of Vietnam and other relevant laws.

4. Tasks or workload involved in public investment projects with construction components of Vietnam’s overseas representative missions shall be subject to the Government’s regulations on management of public investment projects of overseas representative missions of the Socialist Republic of Vietnam and other relevant laws.

5. Feasibility study reports of public investment projects without construction components in foreign countries shall include the following main contents:

b) Necessity of the investment;

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

c) Analysis and determination of objectives and selection of the appropriate size of a public investment project;

d) Analysis of natural conditions, economic conditions and selection of the public investment project site;

dd) Factors related to security and environment;

e) Site clearance plan (if any);

g) Proposed schedule of implementation of the public investment project; the timeline displaying main milestones of the investment;

h) Determination of total investment capital and funding structure;

i) Project management activities, including identification of the project owner, analysis and selection of organizational form for project management;

k) Analysis of socio-economic effectiveness.

6. Assessment of public investment projects without construction components in foreign countries shall focus on the followings:

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

b) Conformity of public investment projects with investment policies approved by competent authorities;

b) Investment necessity;

d) Relevance of public investment projects to planning schemes provided in host countries’ domestic laws;

dd) Relevance of project objectives and size;

e) Factors related to natural conditions, economic conditions and selection of project sites;

g) Factors related to security and environment;

h) Site clearance plans (if any);

i) Proposed schedule of project implementation; timeline displaying main investment milestones;

k) Determination of total investment capital;

l) Organizational form for project management;

m) Appropriacy in terms of funding source and capacity to balance investment capital; correlation between total investment capital and balancing of capital specified in the medium-term and annual public investment plans; the structure of investment funding sources and capacity to balance public investment funds.

Article 16. Procedures and processes for design, formulation, assessment and grant of decisions on group-A, B and C foreign public investment projects

1. Foreign public investment projects under the control of ministries or central regulatory bodies:

a) Based on investment policies already approved by competent authorities, Ministers or Heads of central regulatory bodies shall authorize project owners to prepare feasibility study reports; establish Assessment Councils or mandate competent units to carrying out assessment of these feasibility study reports;

b) In such case, project owners may consult assessment opinions to complete feasibility study reports before submitting them to Ministers or Heads of central regulatory authorities to seek their decisions on investment in these projects.

2. Public investment projects under the control of local governments:

a) Based on investment policies already approved by competent authorities, Presidents of People's Committees at any relevant level shall authorize project owners to prepare feasibility study reports for these projects; establish Assessment Councils or mandate competent units to carrying out assessment of these feasibility study reports;

b) In such case, project owners may consult assessment opinions to complete feasibility study reports for these projects before submitting them to Presidents of People's Committees at any relevant level to seek their approval decisions on investment in these projects.

Article 17. Application and documentation requirements for and subject matters of assessment of public investment programs

1. Application and documentation requirements for assessment of public investment programs:

a) Request or application form for assessment of a public investment program, including program necessity or significance; main objectives and contents of a feasibility study report; recommendation to competent authorities for approval of decisions on public investment programs;

b) Feasibility study report for the public investment program that is made in compliance with clause 1 of Article 44 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 authority presiding over the assessment must be 10 sets.

3. Assessment of a national target program or a public investment program shall focus on the followings:

a) Conformance of components of application or request documentation for assessment to laws;

b) Conformity of the program with the investment policy approved by a competent authority;

c) Contents of the feasibility study report for the program, subject to clause 1 of Article 44 in the Law on Public Investment;

d) Appropriacy in terms of funding sources and capacity to balance the investment capital which is assessed by competent authorities; correspondence or compatibility between total investment capital on one side, and the medium-term and annual public investment plans on the other side; structure of capital of the central and local government’s budget and other legitimate investment funds; capital recovery and solvency or debt repayment capacity in case of using borrowed funds.

4. In the course of conducting assessment of public investment programs that focuses on those prescribed in clause 3 of this Article, Assessment Councils or authorities presiding over assessment activities shall perform review and comparison tasks to ensure that they conform to the provisions of investment policy decisions approved by competent authorities; ensure that they conform to indicators related to the size and total investment capital, including requirements under which the investment capital proportion must not exceed the levels prescribed in the investment policy decision;

In case where it is necessary to make any adjustment in policies for investment in public investment programs, the adjustment shall be subject to regulations laid down in Article 34 in the Law on Public Investment and Article 11 herein.

Article 18. Application and documentation requirements for assessment of public investment projects

1. Application and documentation requirements for the assessment of public investment projects without construction components shall include the followings:

a) Request or application forms for assessment of public investment projects, clearly stating project necessity or significance; main objectives and components of feasibility study reports; recommendation to competent authorities for grant of approval decisions on public investment projects;

b) Feasibility study reports for public investment projects that are made in compliance with Article 44 in the Law on Public Investment;

c) Reports issued by Vietnamese Fatherland Front Committees at any respective level that synthesize opinions from communities where projects are executed with respect to those projects prescribed in Article 74 in the Law on Public Investment;

d) Any other relevant documents that are necessary for the assessment of public investment projects.

2. Application and documentation requirements for the assessment of public investment projects with construction components shall be subject to law on construction and opinions from communities as provided in point c of clause 1 of this Article and other provisions of relevant laws.

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

4. Subject matters of the assessment of public investment projects without construction components shall be as follows:

a) Conformance of components of application or request documentation for assessment to laws;

b) Conformity of public investment projects with investment policies approved by competent authorities;

c) Components of feasibility study reports for public investment projects, subject to clause 2 of Article 44 in the Law on Public Investment;

d) Correspondence between total investment capital and allocated investment capital balance according to annual and mid-term investment plans; investment capital proportions, capacity to balance public investment capital and mobilization of other funds and resources for implementation of public investment projects; evaluation of costs of operation, maintenance, care and major overhaul incurred during the period of exploitation of public investment projects;

dd) Widespread effects of public investment projects on development of industries, sectors, territories and localities; on creation of additional budget revenues, employment, income and lives of residents; effects on environment and sustainable development.

5. Subject matters of the assessment of public investment projects with construction components shall be subject to law on construction and include those that have not yet been prescribed in clause 4 of this Article and other provisions of relevant laws.

6. In the course of conducting the assessment of public investment projects that focuses on those prescribed in clause 4 and 5 of this Article, Assessment Councils or authorities presiding over assessment activities shall perform review and comparison tasks to ensure that they conform to the provisions of investment policy decisions approved by competent authorities; ensure that they conform to indicators related to the size and total investment capital, including requirements under which the investment capital proportion must not exceed the levels prescribed in investment policy decisions;

In case where it is necessary to make any adjustment in policies for investment in public investment projects, the adjustment shall be subject to regulations laid down in Article 34 in the Law on Public Investment and Article 11 herein.

Article 19. Time limits for assessment of public investment programs or projects

1. Time limits for assessment of public investment programs or projects without construction components after authorities presiding over assessment activities receive full and valid submitted documents shall be as follows:

a) National target programs: Not exceeding 60 days;

a) Public investment programs (except 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 for public investment programs or projects is not conformable to regulations laid down in Article 44 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 activities shall send their written opinions to authorities applying for or requesting assessment to provide supplementary documents or complete feasibility study reports for public investment programs and projects.

2. Time limits for the assessment of public investment projects with construction components shall be subject to laws on construction.

3. Time limits for internal assessments shall be regulated by Ministers or Heads of central regulatory authorities and Presidents of People’s Committees at any level.

4. In case where any extension of time limits for assessment of public investment programs or projects, Assessment Councils or authorities presiding over assessment activities shall report to authorities having competence in issuing decisions on investment in public investment programs or projects to seek their approval of such extension. Extension period shall not be allowed to exceed the respective assessment time limits set out in clause 1 of this Article.

Article 20. Request or application documentation submitted to competent authorities to seek their approval of decisions on investment in public investment programs or projects

1. Request or application documentation submitted to competent authorities to seek their approval of decisions on investment in public investment programs or projects shall include the followings:

a) Request or application forms submitted to competent authorities to seek their approval of decisions on investment in public investment programs or projects, and feasibility study reports already completed according to assessment opinions;

b) Decisions on investment in public investment programs or projects, issued by competent authorities;

c) Reports on assessment of feasibility study reports;

d) Other relevant documents (if any).

2. The required number of request or application documentation submitted to competent authorities to seek their approval of decisions on investment in public investment programs or projects as provided in clause 1 of this Article shall be 05 sets.

3. Request or application documentation submitted to competent authorities to seek their approval of decisions on investment in projects on compensation, support, resettlement and site clearance which are separated into independent projects as provided in the Law on Public Investment shall be as follows:

a) With respect to those projects with construction components, such documentation shall be subject to laws on construction;

b) With respect to those projects without construction components, such documentation must be subject to regulations laid down herein and other relevant laws;

c) With respect to projects on compensation, support, resettlement and site clearance, and remaining projects which are separated from projects of national significance or group-A public investment projects under clause 1 of Article 5 in the Law on Public Investment that are classified according to criteria for project classification, such documentation shall be subject to decisions on investment policies.

Article 21. Subject matters of and time limits for grant of decisions on group-A, B and C public investment programs or projects

1. Decisions on group-A, B and C public investment programs or projects:

a) Decisions on investment in public investment programs must contain the following main information: program objectives, scope and scale; total investment and structure of resources used for implementation of programs, including project portfolio, level of allocated public investment capital, mobilization of funding and other sources; capital allocation plans and program implementation progress; associated costs arising in the process of implementation of programs and operating costs after completion of development of programs; component projects of programs; implementation solutions; etc.

b) Decisions on public investment projects without construction components shall contain the following main contents: Project name; project owners; bodies providing consultancy for development of projects 9if any); investment objectives, scale and execution progress; project sites; technological designs (if any); technical regulations; total investment capital; funding sources and proposed allocation of capital according to implementation progress; organizational forms of management of projects to be applies; etc.

c) Decisions on investment in public investment projects with construction components shall be subject to laws on construction.

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

a) Public investment 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.

3. Within 15 days after competent authorities issue their decisions on 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 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 capital of the local governments’ budget 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 in those programs or projects already obtaining approval from competent authorities.

Article 22. Procedures and processes for design, formulation, assessment and grant of decisions on adjustment in group-A, B and C public investment programs and projects

1. Program or project owners shall assume the following responsibilities:

a) Conduct the assessment of the entire process of implementing public investment programs and projects till the time of submission of request for adjustment; report on the results of evaluation of public investment programs and projects to authorities having competence in making investment decisions;

b) Assign specialized bodies to prepare reports on recommendation about adjustments in public investment programs and projects. The report on recommendation about any adjustment in a public investment program or project must clearly state reasons for such adjustment to ensure conformance to regulations laid down in Article 43 in the Law on Public Investment;

c) Conduct internal assessments of any adjustment in public investment programs or projects;

d) Complete reports on recommendation about adjustments in public investment programs and projects which are submitted to competent authorities to seek their approval decisions on such adjustment.

In case where any adjustment causes any increase in the gross investment capital greater than the one already obtaining investment policy decisions from competent authorities, the project must follow procedures and processes for grant of decisions on modification of investment policies according to the provisions of Article 34 in the Law on Public Investment and Article 11 herein before receipt of decisions on project adjustments from competent authorities.

2. Procedures and processes for assessment and grant of decisions on adjustment in public investment programs:

a) Processes for assessment and grant of decision on adjustments in national target programs shall be subject to provisions laid down in clause 2, 3 and 4 of Article 37 in the Law on Public Investment;

b) Processes for assessment and grant of decision on adjustments in public investment programs obtaining the Government’s decisions on investment policies shall be subject to provisions laid down in clause 2 and 3 of Article 38 in the Law on Public Investment;

c) Processes for assessment and grant of decision on adjustments in public investment programs obtaining decisions on investment policies from People’s Councils shall be subject to provisions laid down in clause 2 and 3 of Article 39 in the Law on Public Investment.

3. Procedures and processes for assessment and grant of decisions on adjustment in public investment projects:

a) Processes and procedures for assessment and grant of decisions on adjustments in public investment projects without construction components shall be subject to the provisions laid down in clause 2 of Article 40 in the Law on Public Investment;

b) Processes and procedures for assessment and grant of decisions on adjustments in public investment projects with construction components shall be subject to law on construction and other regulations of relevant laws.

Article 23. Documentation requirements for, contents and time limits for assessment of adjustments in public investment programs and projects

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

a) Request or application forms submitted to competent authorities to seek their approval of adjustments in public investment programs or projects. The form must clarify objectives and reasons of adjustments according to the provisions of clause 1 and 2 of Article 43 in the Law on Public Investment;

b) Decisions on policies for investment in public investment programs or projects; decisions on adjustment in policies for investment in public investment programs or projects (if any);

c) Decisions on investment in public investment programs or projects; decisions on investment in previously adjusted public investment programs or projects (if any);

d) Internal assessment reports that give recommendations about adjustments in public investment programs or projects, and other assessment reports under laws (if any);

dd) Reports on assessment, inspection and evaluation of implementation of public investment programs or projects that are made in accordance with clause 4 of Article 43 in the Law on Public Investment;

e) Other relevant documents (if any).

2. The required number of documents submitted to authorities having competence in issuing investment decisions to seek their approval of adjustments in investment policies for public investment programs or projects shall be subject to clause 3 of Article 18 herein.

3. Subject matters of the assessment of national target programs or public investment programs shall include the followings:

a) Conformance of components of application or request documentation for assessment to laws;

c) Contents of feasibility study reports for public investment programs subject to clause 1 of Article 44 in the Law on Public Investment;

c) Appropriacy in terms of funding sources and capacity to balance the investment capital which is assessed by competent authorities; correspondence or compatibility between total investment capital on one side, and the medium-term and annual public investment plans on the other side; structure of capital of the central and local government’s budget and other legitimate investment funds; capital recovery and solvency or debt repayment capacity in case of using borrowed funds;

d) Conformance to provisions of laws on adjustment in public investment programs, subject to provisions laid down in clause 1, 3 and 4 of Article 43 in the Law on Public Investment and herein.

4. Subject matters of the assessment of adjustment in public investment projects without construction components shall be as follows:

a) Conformance of components of application or request documentation for assessment to laws;

b) Conformity of public investment projects with investment policies approved by competent authorities;

c) Components of feasibility study reports for public investment projects, subject to clause 2 of Article 44 in the Law on Public Investment;

d) Relevance of adjustment to total investment capital and capacity to balance investment capital already assessed by competent authorities; correspondence between total investment capital and allocated capital balance specified in mid-term and annual public investment plans; investment capital proportions, capacity to balance public investment capital and mobilization of other funds and resources for implementation of public investment projects; evaluation of costs of operation, maintenance, care and major overhaul incurred during the period of exploitation of public investment projects;

dd) Widespread effects of public investment projects on development of industries, sectors, territories and localities; effects on creation of additional budget revenues, employment, income and lives of residents; other effects on environment and sustainable development;

e) Conformance to provisions of laws on adjustment in public investment programs to clause 2, 3 and 4 of Article 43 in the Law on Public Investment.

5. Subject matters of the assessment of public investment projects with construction components shall be subject to law on construction and include those that have not yet been prescribed in clause 4 of this Article and other provisions of relevant laws.

6. Time limits for assessment of adjustments in public investment projects shall be subject to Article 19 herein.

Article 24. Contents of and time limits for grant of decisions on adjustments in public investment programs and projects

1. Contents of decisions on adjustments in public investment programs or projects shall include those adjustments corresponding to contents of decisions on investment in public investment programs or projects in accordance with clause 1 of Article 21 herein.

2. Time limits for grant of decisions on adjustment in public investment programs or projects, and time limits for sending decisions on adjustments in public investment programs or projects for their being integrated into mid-term and annual public investment plans shall be subject to regulations laid down in clause 2 and 3 of Article 21 herein.