Chương II Nghị định 99/2021/NĐ-CP: Quản lý, thanh toán vốn đầu tư công

Chapter II

MANAGEMENT AND DISBURSEMENT OF PUBLIC INVESTMENTS

Article 4. Regulatory payment bodies

1. State Treasuries shall take regulatory control of settlement of public investments funded by the state budget and legitimate revenue retained by the state regulatory authority for investing purposes.

2. Public service units shall take regulatory control of settlement of investments funded by legitimate revenues that they retain for investment purposes.

3. The Ministry of National Defense and the Ministry of Public Security shall, under their mandate and delegated power, authorize an agency to take regulatory control of settlement of investments in state secret-graded public investment projects in which policies for investment are decided by the Prime Minister; secret or top-secret public investment projects notified to the Ministry of Finance.

Article 5. Account opening

1. Opening payment accounts for state budget-funded investments:

a) Investors in projects funded by state budget-controlled public investments or agencies signing PPP projects open accounts at State Treasuries where it is convenient to perform transactions. Managing agencies may act on behalf of investors (if investors are not in Vietnam) to sign up for their accounts for use in public investment projects in foreign countries that are funded by the state budget for fund control and payment purposes.

b) Signing up for an account for control and payment purposes shall be subject to the Government’s regulatory provisions related to administrative formalities for the state treasury field and those of the Ministry of Finance pertaining to instructions on signing up for and using accounts opened at State Treasuries.

2. Opening accounts for control and disbursement of investments in state secret-graded public investment projects in which policies for investment are decided by the Prime Minister; secret or top-secret public investment projects of the Ministry of National Defense and the Ministry of Public Security:

a) The Ministry of National Defense and the Ministry of Public Security shall open accounts at State Treasury for disbursement of investments in state secret-graded public investment projects in which policies for investment are decided by the Prime Minister; secret or top-secret public investment projects of the Ministry of National Defense and the Ministry of Public Security.

b) Signing up for a payment account shall be subject to the Government’s regulatory provisions related to administrative formalities for the state treasury field and those of the Ministry of Finance pertaining to instructions on signing up for and using accounts opened at State Treasuries.

3. Opening accounts for control and disbursement of investments derived from legitimate revenues retained by state regulatory authorities and public service units for investing in public investment projects shall be subject to the regulations laid down in Article 24 herein.

Article 6. Public investment management and disbursement principles

1. Management and disbursement of public investments in mandates and projects should serve correct purposes and managed/receiving subjects; ensure cost efficiency, effectiveness and conformance to regulations on management of public investments and state budget that are set out in current law and regulations herein.

2. Investors utilizing public investments shall manage and use funds to serve correct purposes, managed/receiving subjects; ensure thrift, efficiency and compliance with laws and regulations on financial regimes for investment. Investors using state budget-derived public investments are obliged to comply with legislation on regimes for capital investment and capital construction investment expenditure as provided in the Law on State Budget.

3. Superiors to investors shall examine and push investors and project management authorities (hereinafter referred to as investors) under their jurisdiction towards implementation of public investment plans and utilization of public investments in compliance with current legislation.

4. Financial authorities at any level shall perform the tasks of financially managing public investments as part of the duties to comply with regulations and regulatory policies on management and disbursement of public investments in accordance with current legislation and regulations enshrined herein.

5. Regulatory payment bodies shall have the burden of controlling and disbursing funds in a timely, sufficient and legitimate manner for use in implementing mandates and projects when prescribed disbursement conditions and documentation requirements for disbursement are fully satisfied.

6. For public investment projects in foreign countries:

a) Signed contracts, current domestic law of host countries, international treaties to which the Socialist Republic of Vietnam is a contracting party, and the current domestic law of the Socialist Republic of Vietnam serve as the legal basis for management, advance allocation and disbursement of investments in public investment projects in foreign countries.

b) Managing bodies shall act on the investor’s behalf to request and carry out payment transactions related to public investments with regulatory payment bodies.

Article 7. Control and payment principles of regulatory payment bodies

1. Upon receipt of the written documents stating detailed allocation of funds for the public investment plans (including modification and supplementation thereof (if any)) of ministries, central and local authorities for mandates and projects in which procedures for investment as provided in the Law on Public Investment are fully met; allocation and adjusted allocation of planned funds are accepted, regulatory payment bodies shall consult sets of request documents for disbursement submitted by investors, disbursement terms and conditions agreed upon in contracts, budget estimates approved by competent authorities, task assignment statements or internal contracts (in case of autonomous implementation of projects), disbursement instalments, stages, dates and value of each disbursement instalment in order to disburse funds for mandates and projects.

Where a payment/disbursement request of an investor fails to satisfy the disbursement regime or documentation required for disbursement as specified herein are insufficient, the regulatory payment body may refuse to make payment/disbursement and, within 03 working days of receipt of request documentation for payment/disbursement from the investor, shall issue the written notification of specific reasons for refusal of disbursement/payment once to the investor for any necessary modification or improvement to the submitted documentation as per this Decree.

2. Public investments disbursed/paid out for autonomous or non-contractual implementation of specific works or items of a mandate or project shall not exceed the approved budget estimate. Total disbursement/payment for a mandate or project shall be restricted to total investment approved by the competent authority. The amount of public investments in implementing works or items of work in mandates or projects in a year shall not be greater than the budgeted amount in a year which is available for use.

3. For expenses calculated on a percentage basis as part of total investment (or the approved budget estimate) as stipulated in legal normative documents currently in effect, regulatory payment bodies shall take control and payment/disbursement steps to ensure these expenses do not exceed the prescribed value in percent.

4. Regulatory payment bodies shall carry out the practice of control and disbursement of public investments according to the “pay first, check later” principle applied to each installment and, when the expected total amount of disbursement making up 80% of the contract value is reached, shall shift to the “check first, pay later” principle to be applied to each contractual disbursement instalment. Regulatory payment bodies shall provide detailed instructions on how to apply the control and disbursement/payment methods in their system with the intention of providing facilitation for investors, contractors and complying with current regulations.

5. For public state-secret public investment projects in which policies for investment are decided by the Prime Minister; secret or top-secret public investment projects of the Ministry of National Defense and the Ministry of Public Security:

Agencies authorized by the Ministry of National Defense or the Ministry of Public Security to perform the control and payment/disbursement tasks shall carry out the process of controlling, paying/disbursing public investments to beneficiaries upon the investor’s request, and bear responsibility for control and payment/disbursement under their duty.

6. Manners of transaction performed at regulatory payment bodies (offline transactions carried out at regulatory payment bodies or electronic transactions):

a) For transactions carried out at State Treasuries, the manner in which these transactions are made shall be subject to the Government’s regulations on administrative formalities in the state treasury operations.

b) For transactions carried out via other regulatory payment bodies, the manner in which these transactions are made shall be subject to the regulations imposed by the regulatory payment bodies where they take place.

Section 1. MANAGEMENT AND DISBURSEMENT OF STATE BUDGET-FUNDED INVESTMENTS

Article 8. Inspection of annual budget allocation

1. Budget allocation steps:

Upon receipt of the budget plans assigned by the competent authorities (including those assigned at the beginning of the budgetary year, modifications and supplements in the budgetary year), Ministries, central authorities, People's Committees at all levels or local first-line budget units (if they are accorded authority to allocate the budget) shall take the following required steps:

a) Prepare the detailed budgets of state budget allocations available for public investment in specific mandates or projects according to the criteria set out in Form No. 01/PB, and make adjustments to such detailed budgets (if any) according to the criteria set out in Form No. 02/PB appended hereto, for submission to same-level financial authorities in order to control and manage annual state budget estimates according to the regulations of the Law on State Budget and documents providing instructions on implementation thereof that are currently in effect, as well as same-level regulatory payment bodies. Provincial People’s Committees compile the update report on implementation of the detailed budget of state budget allocations for investment in specific mandates or projects for submission to the Ministry of Finance for administrative, synthesis or reporting purposes, or its written instructions to be given in case where such allocation is illegal or does not satisfy disbursement requirements.

b) Set the budget targets to be followed by investors; assign the detailed budgets fully satisfying criteria according to the Form No. 01/PB, and the updated detailed budgets (if any) fully satisfying the criteria set out in the Form No. 02/PB to investors for their compliance, and send them to regulatory payment bodies where transactions are made as a basis for control and disbursement/payment of funds.

c) Ministries, central authorities, all-level People’s Committees or local first-line budget units allocate advances in the following-year budget estimate (if permitted to do so by competent authorities) available for use in mandates or projects of subordinate and inferior state budget users in the same manner as the assigned budget in the current year.

d) Deadline for assignment of the detailed budget and the annual budget for public investment in mandates or projects is ahead of December 31 in the year preceding the plan year, or varies according to the one specified in the decision on budget assignment, modification or transfer in the budgetary year of the competent authority. Where the decision on budget assignment, modification or transfer in the budgetary year issued by the competent authority does not prescribe any deadline, within the maximum duration of 10 working days of receipt of the competent authority’s decision, Ministries, central authorities, all-level People’s Committees or local first-line budget units shall be obliged to finish distributing budgets among detailed budget structure elements and assigning detailed budgets as per point a and b of this clause.

2. Budget allocation inspection:

a) For mandates or projects put under the control of ministries or central authorities:

Within 10 working days of receipt of the written document stating allocation of funds in the detailed budgets for public investment from ministries and central authorities, the Ministry of Finance shall check over funding arrangements to ensure conformance to clause 2 of Article 49 in the Law on State Budget. When detecting funding for mandates or projects that are not included in the accepted investment portfolio; which is greater/lower than total investment amount; which is not aligned with the detailed budget structure of which elements are arranged by industries, sectors or assignments (if any); which is in breach of regulatory policies, the Ministry of Finance shall send written requests to ministries, central authorities for any necessary adjustment to ensure compliance with regulations, and notify such situation to regulatory payment bodies (at the central level and at places where transactions occur) so that they can refuse to make disbursement/payment of budgets to the mandates or projects involved in these situations. Within 07 working days of receipt of written requests from the Ministry of Finance, Ministries and central authorities shall instruct investors in mandates or projects involved in such failure to comply with regulations on budget allocation to repay the state budget the disbursed amounts (if any).

Within 07 working days of receipt of the Ministry of Finance’s requests, Ministries or central authorities must make any requested adjustment and send the revised written statements of budget allocation to the Ministry of Finance, regulatory payment bodies (at the central level and at the places where transactions occur) as a basis for disbursement/payment of funds for fully qualified mandates or projects. In case of failure to reach agreement with the Ministry of Finance, Ministries or central authorities may submit a written report on the situation to the Prime Minister to seek his decision. Pending the Prime Minister’s decision, Ministries, central authorities and investors are not allowed to disburse the budget portion of which allocation needs to be reviewed upon the Ministry of Finance’s request.

b) For projects under the local management:

Within 10 working days of receipt of the written document stating allocation of funds in the detailed budgets for public investment from local first-line budget units, same-level financial authorities shall check over budget allocation arrangements to ensure conformance to clause 2 of Article 49 in the Law on State Budget. When detecting allocation of budgets for mandates or projects that are not included in the accepted investment portfolio; which is greater/lower than total investment amount; which is not aligned with the detailed budget structure of which elements are arranged by industries or assignments (if any); which is in breach of regulatory policies, financial authorities shall send written requests to local first-line budget units for any necessary adjustment to ensure compliance with regulations, and notify such situation to regulatory payment bodies to prevent them from making disbursement of budgets for those mandates or projects involved in these wrongs. Within 07 working days, Ministries and central authorities shall instruct investors in mandates or projects involved in such failure to comply with regulations on budget allocation to repay the state budget the disbursed amounts (if any).

Within 07 working days of receipt of financial authority’s requests, local first-line budget units must make any requested adjustment and send the revised written statement of budget allocation to financial authorities or regulatory payment bodies at the places where transactions occur as a basis for disbursement/payment of budgets for fully qualified mandates or projects. In case of failure to reach agreement with financial authorities, local first-line budget units may submit a written report on the situation to the People’s Committees (the budget assignors) to seek their decision. Pending the decision from the People’s Committees (the budget assignor), local first-line budget units and investors are not allowed to disburse the budget portion of which allocation needs to be reviewed upon the financial authority’s request.

3. Ministries, central authorities, financial authorities at all levels, regulatory payment bodies (State Treasury) shall enter and approve state budget-derived estimated public investments annually on Tabmis under their delegated authority and according to regulations currently in force.

Article 9. Dossiers on control and payment/disbursement of budgets for projects

1. Legal dossiers of mandates or projects (originally sent when transacting with regulatory payment bodies; when there is any change, modification or supplementation):

a) For the planning mandate:

- Annual public investment plan commissioned by competent authorities;

- Decision or written document stating assignment of planning tasks issued by competent authorities, decisions or written documents stating modification (if any);

- Estimate of costs of the planning mandate or estimate of costs of each item in the planning mandate which is approved by competent authorities;

- Decision or written document stating approval of the contractor selection plan of competent authorities as per the regulations of the Law on Bidding;

- Written permit of competent authorities for autonomous implementation that is required if this is the case and it is not available in the decision or written document stating assignment of the planning mandate of competent authorities;

- Contract, contract performance security (where the contract prescribes that the contract term commences from the contractor's provision of contract performance security); appendices to the contract that are required if there is any change in contractual terms and conditions or written document stating assignment of work, or intracorporate full-package contract (in case of self-implementation).

b) For the pre-investment mandate:

- Annual public investment plan commissioned by competent authorities;

- Decision or written document stating assignment of investment preparatory tasks issued by competent authorities (except if these tasks have already been included in the decision on approval of the project or the decision on approval of socio-economic impact assessment reports), decisions or written documents stating adjustments (if any);

- Estimate of costs of the pre-investment mandate or estimate of costs of each item included in the pre-investment mandate which is approved by competent authorities;

- Decision or written document stating approval of the contractor selection plan of competent authorities as per the regulations of the Law on Bidding;

- Written permit of competent authorities for autonomous implementation that is required if this is the case and it is not available in the decision or written document stating assignment of the pre-investment mandate of competent authorities;

- Contract, contract performance security (where the contract prescribes that the contract term commences from the contractor's provision of the bond); appendices to the contract that are required if there is any change in contractual terms and conditions or written document stating assignment of work, or intracorporate full-package contract (in case of self-implementation).

c) For the project implementation mandate:

- Annual public investment plan commissioned by competent authorities;

- Decision on approval of an investment project (or Decision on approval of a technical and economic report on projects subject to only one requirement for preparation of economic-technical reports), issued by a competent authority, and decisions on modification of projects (if any);

- Decision or written document stating approval of the contractor selection plan of competent authorities as per the regulations of the Law on Bidding. Written permit of competent authorities for autonomous implementation that is required if this is the case and it is not available in the investment decision of competent authorities;

- Contract, contract performance security (where the contract prescribes that the contract term commences from the contractor's provision of the contract performance security); appendices to the contract that are required if there is any change in contractual terms and conditions; joint venture or consortium agreement (where joint venture or consortium arrangements are not prescribed in the contract);

- Written document stating assignment of tasks or intracorporate full-package contract that is required in case of self-implementation;

- Competent authority’s written document stating approval of the estimate of costs of jobs, items or works that is required in case where projects are implemented according to the contractor appointment, self-implementation and non-contractual implementation approaches (except the projects required to have economic - technical reports);

- Estimate of costs paid for compensation, support and residential resettlement work approved by competent authorities; estimate of costs paid for compensation, support and residential resettlement approved by competent authorities, and the compensation, support and resettlement plan approved by competent authorities with respect to the compensation, support and residential resettlement mandate;

- Site clearance plan or record of partially or wholly cleared site handover in accordance with the contractual agreement that is required if the construction contract’s scope of work include site clearance.

2. Advance payment dossier (sent as attached to each request for advance on budget), including:

a) Payment request (Form No. 04.a/TT);

b) Money transfer record (Form No. 05/TT);

c) Proof of advance payment guarantee (original or certified true copy, whichever is legally accepted) that is required if advance payment guarantee is an obligation stipulated in clause 2 of Article 10 herein.

3. Payment dossier (sent as an attachment to each payment request for completed quantity), including:

a) For the quantity completed under a type of contract (e.g. construction contract, project execution contract without building part or component), payment dossier shall include: Payment request (Form No. 04.a/TT), money transfer proof (Form No. 05/TT); written request for recovery of advance (where appropriate, using Form No. 04.b/TT); chart showing completed quantities (Form No. 03.a/TT); chart showing quantities not included in the primary contract that is required where relevant (Form No. 03.c/TT).

b) For the quantity completed without being subject to any contract:

- With respect to compensation, support and residential resettlement, payment dossier shall include: Payment request (Form No. 04.a/TT); money transfer proof (Form No. 05/TT); written request for recovery of advance (where relevant, using Form No. 04.b/TT); chart showing completed compensation, support and residential settlement quantities (Form No. 03.b/TT); home purchase contract and home handover report (in case of purchase of homes for people affected by human migration, site clearance, support and residential resettlement).

- Regarding documentation requirements for compensation, support and residential resettlement, payment dossier shall include: Payment request (Form No. 04.a/TT), money transfer proof (Form No. 05/TT); written request for recovery of advance (where relevant, using Form No. 04.b/TT).

- In other cases where quantities are completed without being subject to any contract, payment dossier shall include: Payment request (Form No. 04.a/TT), money transfer proof (Form No. 05/TT); written request for recovery of advance (where relevant, using Form No. 04.b/TT); chart showing completed quantities (Form No. 03.a/TT); chart showing payment proofs (compiled and taken in charge by investors).

c) Dossier on payment of costs of the construction job of works (including construction of homes used for residents moving to other places due to project site clearance) intended for payment for compensation, support and residential resettlement shall be subject to clause 1 and 2, point a, b, d and dd of clause 3 of this Article.

d) For the completed mandates or projects, if they obtain approval of final accounting from competent state authorities, and costs specified in the approved total settlement amount have not been fully paid, payment dossiers shall comprise: Payment request (Form No. 04.a/TT); decision on final accounting approval; money transfer proof (Form No. 05/TT).

dd) For insurance or audit contracts, inspection, review and final accounting approval fees, payment dossier shall include: Payment request (Form No. 04.a/TT); money transfer proof (Form No. 05/TT).

4. Documentation requirements of projects classified as part of national target programs:

Legal dossier, advance dossier, payment dossier of the project classified as part of the national target program shall be subject to the regulations laid down in clause 1, 2 and 3 of this Article. Especially for small-scale projects developed using uncomplicated techniques, receiving both state financial support and public contributions (i.e. small-scale category-C projects), if they are financed by funds of the national target program under the management of the commune-level People's Committee, legal dossier shall include:

a) Annual public investment plan commissioned by competent authorities;

b) Written document stating approval of the estimate of pre-investment costs that is issued by competent authorities, enclosing the estimate of costs of pre-investment costs (for investment preparation mandates); written document stating approval of construction documents that is issued by commune-level People’s Committees, enclosing construction documents (for project execution mandates);

c) Contract, contract performance security (where the contract prescribes that the contract term commences from the contractor's provision of the bond).

5. Documentation requirement for withdrawals from deposit accounts of transaction units shall be subject to the regulations laid down in clause 1, 2 and 3 of this Article.

Documentation requirement for withdrawals from deposit accounts that regulatory payment bodies do not need to control is money transfer proof (Form No. 05/TT).

6. Documentation requirement for project fiduciary management shall include: Entrustment contract and the dossiers specified in clause 1, 2 and 3 of this Article.

7. Documentation requirements for project management expenses:

a) Legal documents (sent all at the beginning of the year; or when there is any change, modification or supplementation):

- Annual public investment plan commissioned by competent authorities;

- Written document stating approval of annual estimate of project management revenues and expenditures (except where the annual cost estimation is not required); cost estimate and written document stating approval of the cost estimate of competent authorities (in case of self-implementation);

- Decision to grant financial autonomy of competent authorities (for units given financial autonomy which is not prescribed in the founding decision); internal spending rules;

- Decision to set up the project management unit or written document prescribing the personnel structure of the project management unit of competent authorities, or written document on approval of personnel requirements of competent authorities;

- Contract between the investor and the contractor (for works to be carried out by signing contracts); project management entrustment contract (for cases in which investors entrust the task of project management to the specialized or regional project management unit in accordance with regulations); appendices to the contract that are needed where there is any change in contractual terms and conditions (if any).

b) Advance or payment dossier (sent on demand for payment of costs of completed quantities) that is needed in case the investor directly manages a project; or the investor entrusts all of project management tasks to the specialized and regional project management unit:

Advance dossier, including: Payment request (Form No. 04.a/TT); money transfer proof (Form No. 05/TT).

Payment dossier, including: Payment request (Form No. 04.a/TT), money transfer proof (Form No. 05/TT); written request for recovery of advance (where relevant, using Form No. 04.b/TT); other relevant documents prescribed in the Government’s regulations on administrative procedures in the scope of state treasury activities that are required to be included in the dossier on payment for regular state budget expenditures from budget accounts of state budget users, dossier on payment for expenditures on implementation of repair, maintenance, reconstruction, upgradation and expansion of facilities.

c) Dossier needed in cases where the investor directly manages multiple projects; the investor partially entrusts the task of project management to the specialized or regional project management unit:

Dossier needed for transferring project management funds from the budget account to the deposit account, including: Payment request (Form No. 04.a/TT); money transfer proof (Form No. 05/TT).

Documents on advance of funds for project management costs from the deposit account (sent on demand for advance payment), including: Payment request (Form No. 04.a/TT); money transfer proof (Form No. 05/TT).

Payment dossier, including: Payment request (Form No. 04.a/TT), money transfer proof (Form No. 05/TT); written request for recovery of advance (where relevant, using Form No. 04.b/TT); chart showing distribution of project management expenses designed for requesting recovery of project management expense advances (Form No. 11/QLDA); other relevant documents prescribed in the Government’s regulations on administrative procedures in the scope of state treasury activities that are required to be included in the dossier on payment for regular state budget expenditures from budget accounts of state budget users; dossier on payment for expenditures on implementation of repair, maintenance, reconstruction, upgradation and expansion of facilities.

Article 10. Advances

1. Advance funding principles:

a) For construction contract-based jobs:

Advance disbursement of funds may proceed after entry into force of contracts and investors are provided with the guarantee for advance on contract value from contractors (where the guarantee for advance is required) whose value is equal to the amount of advance disbursement. In particular, with respect to construction contracts, where site clearance is required, the plan for site clearance or the record of (partially or wholly) cleared site handover that site clearing organizations provide for investors under contractual arrangements must be in place.

Amount, time, amount of regular recovery, time of regular recovery and other arrangements regarding protection for recovery of advances which is agreed upon between investors and contractors in accordance with regulations must be specified in contracts and keep up with the investment, contract execution progress and quantities worked each year. Advance amount and number of advance payments shall be arranged in years according to the contract performance schedule set in the respective year (if any).

Based on the demands for advance disbursement, investors may make one-off or instalment advance disbursement under a contract on condition that total advance disbursement does not exceed the amount of advance disbursement prescribed in contracts and is restricted to the maximum amount of advance disbursement prescribed in clause 3 of this Article.

Investors shall work with contractors to calculate the amount of advance disbursement which is rational and conform to regulations of clause 3 of this Article; manage the utilization of the advance to ensure that the advance serves agreed-upon purposes, beneficiaries, is effective, and take responsibility to recover the amount of advance disbursement.

b) For contract-based or non-contractual jobs in projects without construction components:

For contract-based jobs in projects without any construction component, the advance disbursement of funds may proceed after entry into force of contracts and investors are already provided with the guarantee for advance on the contract sum from contractors (where relevant) whose value is equal to the amount of advance disbursement. In this situation, the amount, time of advance disbursement, amount and time of regular recovery of advance disbursement, and other arrangements concerning security for recovery of advance disbursement, on which investors agree with contractors as per regulations must be specified in contracts and in line with the investment, project execution progress and quantities worked on an annual basis. Advance amount and number of advance payments shall be arranged in years according to the contract performance schedule set in the respective year (if any).

For non-contractual jobs, the advance disbursement of funds shall proceed after the estimate of costs of implementation of these jobs or the site clearance plan is approved by competent authorities, and upon the investor’s request.

Based on the demands for advance disbursement, investors may make one-off or instalment advance disbursement on condition that total advance disbursement does not exceed the maximum limit on advance disbursement that is set as per clause 3 of this Article.

Investors shall work with contractors to calculate the amount of advance disbursement which is rational and conform to regulations of clause 3 of this Article; manage the utilization of the advance to ensure that the advance serves agreed-upon purposes, beneficiaries, is effective, and take responsibility to recover the amount of advance disbursement in accordance with regulations.

2. Guarantee or security for advance disbursement:

a) For contracts whereunder the amount of advance payment is greater than 01 billion dong, the guarantee for the advance disbursement must be in place:

Investors shall send regulatory payment bodies the guarantee for the advance on the contract sum provided by contractors or suppliers in the corresponding currency type which is equal to the amount of advance disbursement before regulatory payment bodies’ transfer of such advance to investors as a prerequisite for advance disbursement of funds available for use by contractors or suppliers.

The amount of guarantee provided for an advance is reduced in proportion to the amount of advance disbursement recovered by each payment transaction between the client and contractor. Investors shall assure and undertake that the value of guarantee for advance disbursement corresponds to the remaining amount of advance disbursement.

The validity period of the guarantee for advance disbursement may be extended until the investor fully recovers the advance disbursement and must be specified in contracts and proofs of guarantee for the advance disbursement. Where the guarantee is expired, the investor shall submit application for extension of the guarantee for advance disbursement to regulatory payment bodies as a basis for their control of expenditures in accordance with regulations in force. Investors shall supervise the validity period of the guarantee.

b) Exceptions from the requirement for provision of the guarantee for advance disbursement:

- For contracts with the amount of advance on the contract sum which is less than or equal to 01 billion dong, simple or small-sized contracts, contractual agreements shall be carried out in accordance with legislation on bidding and construction.

- Construction contracts carried out in the self-implementation form, including those carried out by residential communities according to national target programs.

- Project management trust agreements.

- Non-contractual jobs, compensation, support and residential resettlement work (except where building work is needed).

- Advance funding against costs of project management boards that is given to investors or project management boards.

3. Amounts of advance disbursement:

a) For the jobs carried out under contracts (e.g. construction contracts, contracts for execution of projects without building part or component):

Total amount of advance disbursement given upon the investor’s request shall not exceed 30% of the contract value (including any allowance). Where the higher amount of advance disbursement is needed, permission must be obtained from investment decision makers. For projects in which decisions on investment are made by the Prime Minister, the decision on the greater amount of advance disbursement may be made by Ministers, Heads of ministerial agencies or Presidents of provincial People's Committees. Makers of decisions on the amount of advance disbursement shall be legally liable for their own decisions and take control of how to use such advance disbursement legally.

b) For non-contractual jobs:

- Total amount of advance disbursement given upon the investor’s request shall not exceed 30% of the approved estimated costs of the quantities of work. Where the higher amount of advance disbursement is needed, permission must be obtained from investment decision makers. For projects in which decisions on investment are made by the Prime Minister, the decision on the greater amount of advance disbursement may be made by Ministers, Heads of ministerial agencies, Presidents of provincial People's Committees. Makers of decisions on the amount of advance disbursement shall be legally liable for their own decisions and take control of how to use such advance disbursement legally.

- The amount of advance disbursement for compensation, support and residential resettlement work is divided into the followings: advance amounts varying according to the plan and schedule of compensation, support and residential resettlement work; on-demand maximum amount of advance disbursement that does not exceed the amount specified in the plan for compensation, support and residential resettlement that is approved by competent authorities; where investors directly pay compensation, relief and residential resettlement costs, based on relevant documents and records, payments shall be made to beneficiaries; where institutional entities are in charge of the compensation, support and residential resettlement work, they must sign up for deposit accounts with regulatory payment bodies which are used for receiving advance disbursements from investors for further payment/disbursement purposes.

- The amount of advance disbursement of funds for project management work shall not exceed the estimated cost of project management and that in the budgetary year (where investors or project management authorities obtain approval of the annual estimate of project management costs from competent authorities) approved by competent authorities.

4. Advance funding occurring in the cases specified in clause 3 of this Article shall not exceed the annual public investment budget assigned by competent authorities to projects.

5. Recovery of advance funding:

a) Advance funding that is recovered by payments for completed contractual quantities; amount to be recovered in each instalment, must be agreed upon with contractors, specified in contracts, and must be fully recovered when total disbursement reaches 80% of the contract value (except where greater advance is permitted by competent persons).

b) For compensation, support and residential resettlement work: After paying beneficiaries, investors shall collect evidencing documents, proceed to make payment and recover advances within 30 days from the date of payment to beneficiaries, and avoid not taking action to recover advances until the compensation, support and residential resettlement plan is fully completed.

For advance funding against general and administrative costs of compensation, support and residential resettlement work, regulatory payment bodies shall consult the annual account of these general and administrative costs approved by competent authorities to proceed to recover advance funding.

c) For project management expenses: Investors shall make a list of completed quantities (bearing their signature and stamp) and submit it to regulatory payment bodies as a basis to carry out procedures for recovery of advance funding. Investors shall not be required to submit documents evidencing payments or invoices to regulatory payment bodies, and shall be responsible for the accuracy and legitimacy of the quantities and requested payment value according to the approved cost estimate.

In case where the project management authority or the investor directly takes charge of multiple projects, on a quarterly, six-monthly and year-end basis, the investor shall prepare the distribution chart of project management expenses (completed quantities of work specified in the cost estimate) for each project for submission to regulatory payment bodies in order for the process for recovery of advances to proceed (Form No. 11/QLDA).

d) For contracts for procurement of machinery and equipment: Under contracts signed between investors and contractors, the full amount of advance funding must be recovered when quantities of work are completed as agreed upon in these contracts.

6. Inspection and review of advance funding and recovery of advance disbursements:

a) Regulatory payment bodies solicit investors to comply with regulations on recovery of advance funding, cooperate with investors in checking over amounts already disbursed in advance for the purpose of recovering amounts of advance disbursement not yet used or misused. Regulatory payment bodies checks the balance of advance funding to ensure that amounts already disbursed in advance are recovered in full in accordance with clause 5 and point d of clause 6 of this Article.

b) By the 5^th of the first month in the following quarter, investors prepare the review report on advance disbursement of funds and recovery of advance funding for investment for each project for submission to regulatory payment bodies where transactions occur, and investor's superiors, clearly stating the balance of advance funding that has not yet been recovered till the reporting time, reasons, issues and problems arising from recovery of the overdue balance of advance funding (if any) as well as recommended solutions.

c) On a six-monthly and annual basis, by July 10 in the budgetary year and by February 28 in the outyear, regulatory payment bodies at all levels prepare the review report on advance disbursements and recovery thereof of ministries, central and local authorities for submission to same-level financial authorities (Form No. 08/SDTƯ), clearly pointing out overdue balances not yet recovered till the reporting time, reasons, issues and problems arising during the process for recovery of the overdue balances (if any) and recommending solutions.

Based on the report of the same-level regulatory payment body, the Ministry of Finance instructs ministries and central authorities in writing to take action to recover overdue balances of advance funding for the projects under the management of ministries, central authorities; instructs departments of finance, district-level finance – planning divisions to report to same-level People’s Committees in order for them to take actions to recover late payments on advance funding for the projects under the management of same-level People’s Committees.

d) Time limits for recovery of advance disbursements:

For the jobs carried out under contracts (e.g. construction contracts, contracts for execution of projects without building part or component): If advance funding is late for recovery for more than 03 months from the due date of recovery stipulated in the contract during which the contractor has not yet used it for executing the project, or misuses it, the investor shall take charge of or cooperate with regulatory payment bodies in recovering advance funding to the state budget. Where the investor has not recovered the advance disbursement yet, the regulatory payment body shall request the investor in writing to recover advance disbursement from the contractor, or request the credit institution to issue the guarantee for recovery of advance funding to fulfill their guarantee obligations when the contractor violates their commitment for use of advance funding to the investor.

For compensation, support and residential resettlement work: If the advance funding is late for recovery for a period of 03 months from the advance funding date during which it is not paid to the beneficiary, the investor shall take charge of and cooperate with the regulatory payment body in requesting the entity in charge of compensation, support and residential resettlement to transmit all of the balances of advance funding to the investor's deposit account at the regulatory payment body in order to facilitate the control, disbursement and recovery of advance funding.

After such period, if the entity in charge of compensation, support and residential resettlement work has not fully transmitted the overdue balance of advance funding to the investor’s deposit account at the regulatory payment body, upon the investor's request, the regulatory payment body may withdraw money from the deposit account of the entity in charge of the compensation, support and residential resettlement work opened at the regulatory payment body and transfer such sum to the investor’s deposit account at the regulatory payment body, and notify such money transfer to the entity in charge of the compensation, support and residential resettlement work.

One year after the date of money transfer to the investor’s deposit account opened at the regulatory payment body, if such sum has not yet paid to the beneficiary, the investor shall refund the amount of advance disbursement to the state budget (except where the person whose land is appropriated for project development purposes refuses to receive compensation or financial support according the approved plan for compensation, support or residential resettlement). Where the investor does not refund advance funding to the state budget, the regulatory payment body shall be allowed to withdraw money from the investor’s deposit account to remit such money into the state budget, reduce the amount of advance disbursement to the project and notify such reduction to the investor in that project.

For other jobs performed without contracts, if the advance funding is late for recovery for the period of 06 months from the advance disbursement date during which the investor has not recovered the advance funding yet, the regulatory payment body shall request the investor in writing to repay the amount disbursed in advance, except when the competent authority (the cost estimate approver) allows extension of the time limit for recovery of advance funding for completing quantities due to objective causes, or in case where advance funding against project management costs is paid to specialized or regional project management authorities. Within 03 months after the date of mandatory repayment of amounts disbursed in advance, if the investor has not refunded the amount disbursed in advance, the regulatory payment body may withdraw money from the investor’s deposit account to remit such sum to the state budget, reduce the amount already disbursed for use by the project and notify this action to the investor.

Article 11. Payment of costs of completed quantities

1. For the jobs carried out under contracts (e.g. construction contracts, contracts for execution of projects without building part or component):

a) Payment for completed quantities made according to contracts must rely on the contract type, value and contractual terms and conditions. The number of payment intervals, payment phases, and points of time, documents and conditions must be clearly regulated in each contract. Investors shall be responsible for complying with requirements for application of contract prices under applicable regulatory provisions.

b) For turnkey contracts: Paying for completed quantities at the percentage rate of contract value or costs of construction works, items or quantities of work by respective stages of payment that contracting parties agree on in contracts, and without being subject to the requirement for confirming completed quantities in detail.

c) For fixed-price contracts: Paying for completed quantities according to the actually completed quantities (even including any increase or decrease accepted by competent authorities) successfully undergoing acceptance testing in each payment instalment and agreed-upon unit prices.

d) For adjustable-price contracts: Paying for completed quantities according to the actually completed quantities (even including any increase or decrease that occurs) successfully undergoing acceptance testing in each payment instalment and agreed-upon unit prices or unit prices adjusted according to agreements reached in contracts.

dd) For time-based contracts:

- Expert hiring costs are calculated by multiplying professionals’ pay rates and other associated expenses that involved parties agree on in contracts by the actually tested on-duty period (in months, weeks, days or hours).

- Expenses other than remunerations paid to professionals are paid according to the agreed-upon methods.

e) For mixed price-based contracts: Paying for completed quantities depending on types of contract referred to in point b, c, d and dd of clause 1 of this Article.

g) For quantities of work coming into existence (outside of contracts) without any contractual unit price, paying for completed quantities by agreement on supplements to contracts which is reached by contracting parties prior to contract commencement, and aligned with current regulations of relevant legislation.

h) Any adjustments in and/or to contracts shall be subject to regulations on contracts currently in force.

i) Investors entrust project management task to specialized or regional project management authorities to ensure that payment for completed quantities is made according to regulations laid down in entrustment contracts. Scope of activities involved in an entrustment contract must be stated in the contract.

Where the investor entrusts the specialized or regional project management authority with all of the tasks of project management (including withdrawing the budget and making transactions with the regulatory payment body), in addition to the scope of activities involved in entrustment, the investor shall be obliged to assign the account holder’s rights to the assignee and such assignment must be clearly stated in the contract.

k) Where it is mandatory to temporarily suspend the contractor from receiving a specific amount of money or a particular percentage of payment compared to the completed quantity for the purpose of final accounting for investments in the completed project, the investor must seek to reach agreement with the contractor and then such agreement must be clarified in the contract. The amount kept in the temporary custody as stated above shall be transferred to the deposit account that the investor opens at the State Treasury for management and settlement purposes in accordance with regulations.

2. For jobs carried out without being subject to any binding contract, payment shall be made according to the chart showing completed quantities. Investors shall be responsible for the accuracy and legitimacy of the completed quantities and amounts involved in payment requests according to the approved estimate of costs of jobs performed relevant to specific types of work.

3. For the completed mandates or projects, if the amounts of funding that is equal to the amounts stated in the approved final accounts have not yet been disbursed in full for them after obtaining consent to the final account for investments in these mandates or projects, regulatory payment bodies shall consult the decision on approval of the cost estimate and budgeted investments assigned in the year of a project to control disbursements and disburse funds to the project.

Article 12. Management, disbursement, recovery and final accounting of stage budget advances in the outyear

1. Advance on the outyear’s state budget funding shall be subject to the regulations of the Law on State Budget, the Law on Public Investment and the Government’s regulations on advance on the outyear's state budget funding.

2. Managing agencies shall allocate advance on the outyear’s state budget funding to mandates or projects on the permissible investment portfolios and at the amounts authorized by competent authorities. The process for checking the apportionment, prepaid payment and settlement of the advance on the outyear’s state budget funding shall be carried out in the same manner as state budget investments authorized by competent authorities according to the budgetary year’s budget.

3. Ministries, central authorities, financial authorities at all levels and regulatory payment bodies (State Treasury) shall enter and confirm the advance on the outyear’s state budget funding on Tabmis under their delegated authority and according to regulations currently in force.

4. Time limits for utilization of the advance on the outyear's state budget funding: These time limits shall be subject to the same regulations as those applied to time limits for disbursement/settlement of the budgetary year’s state budget-derived public investments if the advance on the outyear’s budget for use as such investments is authorized by competent authorities. In special cases where the Prime Minister is vested with authority to decide the time limit for utilization of the advance on central budget-derived funding; the Presidents of People’s Committees at all levels are accorded authority to decide the time limit for utilization of the advance on local budget-derived funding under their respective jurisdiction, all of the time limits shall not be later than December 31 in the following year.

5. Upon expiry of the final deadlines for availability and disbursement, the remaining amounts of advance funding shall be treated in the same manner as the budgetary year’s state budget-derived public investments.

6. Recovery of advance funding: Managing agencies shall make funding for projects in the outyear’s state budget estimate available for use as repayments on the advance funding. Managing agencies and regulatory payment bodies shall carry out regulatory procedures for recovery of the advance funding from the budgeted amounts authorized by competent authorities in the budgetary year.

a) For the advance on central budget-funded public investments: Where any ministry or central authority fails to provide or inadequately provides the minimum budget for recovery of the advance funding according to the decision to assign the annual plan issued by the Prime Minister, the Ministry of Finance shall issue a written notification to request them to make an adequate budget available for recovery of the advance funding in accordance with regulations. Within 10 days after receipt of the written notification from the Ministry of Finance, if they fail to provide the budget in full for recovery of the advance funding according to the plan assignment decision of the Prime Minister, the Ministry of Finance shall report to the Prime Minister and request regulatory payment bodies in writing to temporarily suspend funding for the project failing to meet the requirement for recovery of advance funding pending the Prime Minister's directives.

b) For the advance on local budget funding or targeted transfers from the superior budget to the inferior budget: Where first-line local budget units fail to provide or inadequately provide the budget for recovery of the advance funding in accordance with regulations, Departments of Finance and Divisions of Finance – Planning shall issue the written notification to these units so that they arrange to recover the advance funding in accordance with regulations. Within 10 working days after receipt of the written notification from financial authorities, if these units fail to arrange to recover the budget according to the budget assignment decision, Departments of Finance and Divisions of Finance and Planning shall report to the same-level People’s Committees and request regulatory payment bodies in writing to temporarily suspend funding for the project failing to meet the requirement for recovery of the advance funding pending the instructions of the same-level People's Committees.

7. Final accounting of advance funding: The advance funding recovered in a budgetary year shall be subject to the final accounting in that year provided that such final account is in line with the plan for recovery of the advance funding approved by competent authorities.

Article 13. Regulations on time limits for advance disbursement and payment of annual funds and time limits for control and payment of funds of regulatory payment bodies

1. Regarding time limits for advance disbursement:

The annual budget for investment in a project may be disbursed in advance till end of December 31 in the planning year (except in case of advance funding for compensation, support and residential resettlement, the advance disbursement is made till end of January 31 in the year following the planning year).

2. Regarding time limits for payment for completed quantities:

The annual budget for a project shall be paid for completed quantities successfully tested till end of December 31 in the planning year by end of January 31 in the year following the planning year (including paying for recovery of the advance funding).

3. In case of extension of the time limit for disbursement of funds as per the Law on State Budget, the Law on Public Investment and other written documents providing instructions about implementation of laws currently in force of the Government, the time limit for disbursement shall be subject to the competent authority’s decision.

4. Time limits for control and payment of funds: Within 03 working days of receipt of a full set of payment request documents from investors as provided in this Decree, based on contracts (or approved estimates of costs of jobs performed without any binding contracts) and investors’ requests, regulatory payment authorities shall carry out control and disbursement of funds for projects and recover the advance funding as per regulations. For funds disbursed in advance according to “pay first, check later” approach, the time limit for control and disbursement of these funds shall be within 01 working day of receipt of all documents required herein.

Article 14. Particular regulations for management and payment of funds for foreign-funded projects

1. Dossiers on control and payment/disbursement of budgets for projects:

a) Legal dossier of the project (originally sent when transacting with regulatory payment bodies; on demand; modified or supplemented): Subject to clause 1 of Article 9 herein; the contract between the investor (project owner) and the contractor that needs to be translated into Vietnamese (signed and sealed by the project owner) with respect to the section describing regulations on payment of contractual obligations (if the contract is in a foreign language); Vietnamese translations of agreements on ODA or concessional loans between the Government of Vietnam and the sponsors (bearing the signature and stamp of the project owner); agreement, letter or written document regarding "uncontentious opinions" of the sponsors (if any).

b) Advance funding and payment dossier shall be subject to Article 9 herein.

In case where contracts prescribe the use of a temporary payment certificate to replace the chart of completed quantities, units must send temporary payment certificates validated by investors (project owners) and contractors.

In case of confirmation given at the State Treasury, and payments made at service banks, in addition to the above documents, project investors (owners) shall not be required to send money transfer documents.

2. Project investors (owners) shall make the statement of expenditures and ensure that foreign fund disbursement is lawful according to the principle that each payment confirmation is applicable to a disbursement only.

3. For the method of withdrawing funds and transferring them to the special account, the project investor (owner) shall report on expenditures and send the letter of transmittal to return proofs of these expenditures on a monthly basis. Time limit for returning proofs of expenditures from the special account to the Ministry of Finance shall not exceed 06 months. After the 6-month time limit, if the investor (project owner) does not return these proofs, the method of direct payment for subsequent disbursements shall be applied.

Section 2. MANAGEMENT AND DISBURSEMENT OF FUNDS FOR PATICULAR PUBLIC INVESTMENT PROJECTS FUNDED BY STATE BUDGET

Article 15. Fund management and disbursement regulations for state secret-graded public investment projects

1. Those comprise state-secret public investment projects that are determined according to laws on protection of state secret and legislation on construction (excluding state-secret public investment projects in which policies for investment are decided by the Prime Minister; secret or top-secret public investment projects of the Ministry of National Defense and the Ministry of Public Security).

2. The budget allocation, checking of such allocation, control and disbursement of funds for state-secret public investment projects shall be subject to Article 8 herein.

3. The legal dossier, advance funding and disbursement dossier of a state-secret public investment project shall include the followings:

a) Annual public investment plan commissioned by competent authorities;

b) Payment request (Form No. 04.a/TT);

c) Money transfer proof (Form No. 05/TT);

d) Recovery request for advance funding (where relevant, using Form No. 04.b/TT).

4. Regulatory payment bodies shall have the only burden of managing the relevancy and completeness of fund withdrawal and money transfer proofs upon the investor's request without being obliged to take control of other aspects of the advance funding or payment dossier received from the investor or the investor's legal representative. Managing agencies and investors shall bear full responsibility to control the submitted dossier and details about fund payment or disbursement to the projects.

5. The management, disbursement/payment, recovery and final settlement of advance on the outyear's state budget expenditures, implementation of the reporting regime towards assessment of implementation of plans, receipt and utilization of funds, confirmation of the funding amount in a year, amount of funding accumulated from the project commencement date to end of the state-budgetary year for specific projects, and compliance with regulatory financial policies, shall be the same as those in the state budget-funded investment projects referred to in Section I herein.

Article 16. Fund management and disbursement regulations for state-secret public investment projects in which policies for investment are decided by the Prime Minister; secret or top-secret public investment projects of the Ministry of National Defense and the Ministry of Public Security

1. Checking the budget allocation:

a) The Ministry of National Defense or the Ministry of Public Security shall provide the chart of annual budget allocations for public investment to state secret-graded public investment projects in which policies for investment are decided by the Prime Minister; secret or top-secret public investment projects, and their steps in allocation of annual budget for public investment, to the Ministry of Finance for its pre-distribution review, as well as send them to their authorized agencies in charge of control and payment of funds (regulatory payment bodies), as a basis for fund disbursement.

b) Within 10 working days of receipt of the complete set of documents required herein, the Ministry of Finance shall scrutinize the distribution of funds of the annual budget for public investment. Where it is established that any allocation is unlawful, the Ministry of Finance shall issue the written request to the Ministry of National Defense or the Ministry of Public Security for any necessary adjustment, and to regulatory payment bodies for temporary suspension of disbursement.

The Ministry of National Defense or the Ministry of Public Security shall instruct investors in projects receiving annual budget allocations which are unlawful to repay the state budget the disbursed funds (if any).

c) Matters relating to the budget distribution, checking of fund distribution and attached documents concerning public investment budget distribution shall be subject to clause 2 of Article 15 herein.

d) Entering and approving detailed budgets for state-secret public investment projects in which policies for investment are decided by the Prime Minister; secret or top-secret public investment projects of the Ministry of National Defense and the Ministry of Public Security, on Tabmis in accordance with regulations on entering and validating data on Tabmis for state-secret public investment projects that are currently in effect.

2. Disbursing state budget-funded public investments:

a) Depending on the project progress according to the investor’s progress report, regulatory payment bodies send the written request for disbursement of funds to the Ministry of Finance (Form No. 12/CT).

b) The Ministry of Finance checks the legitimacy of the payment request referred to in point a of this clause. If payment conditions are satisfied, the Ministry of Finance shall issue the payment order to the Ministry of National Defense or the Ministry of Public Security for submission to the State Budget.

c) In view of the payment order received from the Ministry of Finance, the State Treasury sets aside state budget funds and transfers these funds to the accounts of the Ministry of National Defense or the Ministry of Public Security opened at the State Treasury. Where the payment order is invalid or illegal, in no more than 01 working day of receipt of the payment order, the State Treasury must notify this situation to the Ministry of Finance to seek its possible action.

d) By end of January 31 in the outyear, the residual funds on the account of the Ministry of National Defense or the Ministry of Public Security must be repaid to the state budget (except where competent authorities allow an extension of the time limit for fund disbursement). The Ministry of National Defense or the Ministry of Public Security shall be accountable for the management and utilization of state budget funds for state secret-graded public investment projects in which policies for investment are decided by the Prime Minister; secret or top-secret public investment projects of the Ministry of National Defense and the Ministry of Public Security.

3. Advancing and disbursing/settling funds in the budgetary year by investors:

a) Depending on the progress in implementation of the project, investors issue advance funding and disbursement dossiers to regulatory payment bodies for control and disbursement of funds in accordance with this Decree.

b) Regulatory payment bodies proceed to control and disburse funds to respective projects according to the investor's request dossier.

c) Legal dossiers, advance funding, payment dossiers; regulations on advance disbursement and recovery of advance funding; regulations on payment for completed quantities; time limits for advance funding and disbursement of annual budgets and time limits for control and disbursement of funds shall be subject to Article 9, 10, 11 and 13 herein.

4. Management, disbursement, recovery and final accounting of advance on stage budget funds in the outyear:

a) Upon receipt of the competent authority’s consent to advance on the outyear's state budget funds, the Ministry of National Defense or the Ministry of Public Security distributes advance funds authorized by competent authorities according to the permissible investment portfolio and at the allowable levels.

b) The Ministry of National Defense or the Ministry of Public Security sends the distribution chart of advance on the outyear's state budget funds to the Ministry of Finance and regulatory payment bodies in order for them to proceed to take control and payment actions.

c) The management, recovery and final settlement of advance on the outyear's state budget funding shall be subject to the regulations as applied to state budget-funded public investments prescribed in Article 12 herein. Checking allocation, transferring money by payment orders, advancing and recovering advance on funds and disbursing advance on the outyear's state budget funding shall be subject to clause 1, 2 and 3 of this Article.

Article 17. Emergency public investment projects, temporary works

1. Emergency public investment projects and temporary works shall be subject to legislation on public investment and construction.

2. Advance funding:

a) Principles for advance funding, guarantee for advance funding, amounts of advance funding and recovery of advance funding shall be subject to regulations of Article 10 herein.

b) Dossier on advance funding for emergency public investment projects:

- Annual public investment plan commissioned by competent authorities;

- Order of or written document stating consent to execution of emergency projects issued by competent authorities;

- Decision on approval of investment project or decision on approval of technical and economic report (for projects subject to the only requirement for preparation of economic-technical report) issued by competent authorities, and decisions on modification of projects (if any);

- Contract (if any) or cost estimate approved by competent authorities for non-contractual jobs (if any). Where it is mandatory to receive funds in advance without any contract or cost estimate, the consent to such advance funding should be obtained from persons having competence in issuing investment decisions;

- Payment request (Form No. 04.a/TT);

- Money transfer proof (Form No. 05/TT);

- Letter of advance payment guarantee (where such guarantee is required as per clause 2 of Article 10 herein).

c) Advance funding dossier for temporary works shall be subject to regulations of clause 2 of Article 9 herein.

3. Payment for completed quantities:

Payment for completed quantities shall be subject to Article 11 herein. Payment dossier is composed of the followings:

a) Contract;

b) Joint venture or consortium contract (for cases where joint venture or consortium agreements are not prescribed in this type of contract) or written document stating task assignment (in case of self-implementation and non-contractual implementation);

c) Documents prescribed in clause 1 and 3 of Article 9 herein (except those that have been sent in to complete regulatory procedures for advance funding).

4. The management, advancing, disbursement, recovery and final settlement of advance on the outyear's state budget funding shall be subject to the regulations laid down in Article 12 herein. In particular, dossiers on advance payment of funds for emergency public investment projects shall be subject to point b of clause 2 of this Article.

Section 3. MANAGEMENT AND DISBURSEMENT OF FUNDS FOR OVERSEAS PUBLIC INVESTMENT PROJECTS FUNDED BY STATE BUDGET

Article 18. Checking of annual budget distribution

1. Matters relating to fund distribution and checking of distribution of funds for public investment projects in foreign countries that are funded by the state budget shall be subject to Article 8 herein and Form No. 01.nn/PB (for fund distribution) and Form No. 02.nn/PB (for fund distribution adjustment).

2. The regulatory payment body in charge of overseas public investment projects is the State Treasury.

3. Managing agencies, financial authorities at all levels and regulatory payment body shall enter and approve the budgets of the state budget for public investment annually on Tabmis according to regulations currently in force.

Article 19. Legal dossier of mandates and projects

The managing agency shall originally send the legal dossier when transacting with the regulatory payment body where transactions occur; on demand; modified or supplemented. Specifically including:

1. For the pre-investment mandate: Subject to point b of clause 1 of Article 9 herein.

2. For the project implementation:

a) Regarding construction, reconstruction, renovation and expansion projects: Subject to point c of clause 1 of Article 9 herein.

b) For projects on purchase of houses and land for building of office and apartment buildings, including:

- Annual public investment plan commissioned by competent authorities;

- Decision on approval of the investment project issued by the competent authority, and decisions on project adjustment (if any);

- Agreement in principle on purchase of real property which is used as a basis for payment of deposits (if any);

- Real property sales contract;

- Deposit guarantee certificate (if deposits are required under contracts).

c) Regarding combined projects for purchase of land, houses, construction, reconstruction, renovation and expansion: The required dossier comprises documents stated in point a and b of clause 2 of this Article.

d) For projects on hiring of real property during the long term (above 30 years) for construction purposes:

- Annual public investment plan commissioned by competent authorities;

- Decision on approval of an investment project (or Decision on approval of a technical and economic report on projects subject to only one requirement for preparation of economic-technical reports), issued by a competent authority, and decisions on modification of projects (if any);

- Written agreement in principle on rental of real property which is used as a basis for payment of deposits (if any);

- Real property lease contract;

- Deposit guarantee certificate (if deposits are required under contracts);

- Decision or written document stating approval of the contractor selection plan of competent authorities as per the regulations of the Law on Bidding. Written permit of competent authorities for autonomous implementation that is required if this is the case and it is not available in the investment decision of competent authorities;

- Contract, contract performance security (where the contract prescribes that the contract term commences from the contractor's provision of the contract performance security); appendices to the contract that are required if there is any change in contractual terms and conditions; joint venture or consortium agreement (where joint venture or consortium arrangements are not prescribed in the contract); written document stating assignment of tasks or intracorporate turnkey contract in case of self-implementation;

- Cost estimate and decision on approval of cost estimate of competent authorities with respect to specific jobs, items of work or works in case projects are implemented according to the contractor appointment, self-implementation method, and other jobs that are performed without contracts (except projects that are subject to the only requirement for preparation of economic - technical reports).

Article 20. Advance funding and recovery of advance funding

1. Advance funding and recovery of advance funding for overseas public investment projects funded by the state budget shall be subject to Article 10 herein.

a) As regards construction contracts executed under the host country’s domestic law, if there is any conflict between foreign law and Vietnam’s law in terms of advance funding, recovery of advance funding and guarantee for advance on the contract sum, the ratified contract must apply.

b) In specific cases where projects of particular nature need an advance disbursement greater than the prescribed maximum limit, the regulatory payment body shall make the advance disbursement upon the managing agency’s request on condition that the amount of such advance disbursement is not greater than the authorized budget available for the project’s use in the year.

c) In specific cases where projects of particular nature need an advance disbursement, if evidencing documents on such advance disbursement are not sufficient as per the regulations of this Decree (under the host country's law), the managing agency shall send a written request to the Ministry of Finance for its consideration and possible actions.

2. Advance funding dossier:

a) Written request for advance on investments specific to jobs of the managing agency (specify advance amount, account and beneficiary);

b) Payment request (Form No. 04b.nn/TT).

Article 21. Payment for completed quantities

1. As for jobs executed through construction contracts, the settlement of contractual obligations must be relevant to contract types, values and contractual terms and conditions. The number of payment intervals, payment phases, points of time, documents and conditions must be clearly prescribed in each contract. Investors shall be responsible for complying with requirements for application of contract prices under applicable regulatory provisions.

As regards construction contracts executed under the host country’s domestic law, if there is any conflict between foreign law and Vietnam’s law, the payment for completed quantities shall be subject to the ratified contract.

2. When wishing to receive fund disbursements, investors may send managing agencies the following documents (where each disbursement occurs):

a) Regarding construction, reconstruction, renovation and expansion projects: Chart of completed quantities under the contract (Form No. 03.a/TT, or any other form used for determining quantities that is accepted for use in the contract having overseas validity); payment request (Form No. 04a.nn/TT); request form for recovery of advance disbursement (where relevant, using Form No. 04.b/TT); chart of off-contractual quantities that is required where relevant (Form No. 03.c/TT or any other form used for determining quantities that is accepted for use in the contract having overseas validity).

b) Documentation requirements for projects on purchase or rental of real property in the long term (above 30 years): If payment (including payment of deposits, if any) is made under the real property sale and rental contract, investors shall send the managing agencies the written request for fund disbursement (Form No. 04a.nn/TT).

c) Regarding mixed-purpose projects on purchase of land, houses, construction, reconstruction, renovation and expansion: The required dossier comprises the documents stated in point a and b of clause 2 of this Article.

3. Required disbursement dossier:

Based on the documents that investors submit as per clause 2 of this Article, the managing agency shall prepare payment request documentation for submission to the regulatory payment body, including:

a) Written request for fund disbursement (specify the amount, account and beneficiary) made by the managing agency in reference to specific jobs (Form No. 04b.nn/TT); written request for recovery of advance disbursement (where relevant, using Form No. 04.b/TT).

b) Chart of completed quantities (Form No. 03.a/TT, or any other form used for determining quantities that is accepted for use in the contract having overseas validity); In reference to construction, reconstruction, renovation and expansion projects, the chart of off-contractual quantities that is required where relevant (Form No. 03.c/TT or any other form used for determining quantities that is accepted for use in the contract having overseas validity).

c) Fund withdrawal form (Form No. 05/TT) that is required if the managing agency needs disbursement in Vietnamese dong.

d) Request for withdrawal of funds from the state budget in foreign currency (Form No. 07/TT) that is required if the managing agency needs disbursement in foreign currency.

dd) Other documents evidencing money transfer (if any).

4. Control and payment activities occurring at the regulatory payment body:

Within 03 working days of receipt of the complete set of request documents from the managing agency as per regulations laid down in Article 19, 20 and 21 herein, based on the authorized budget for projects, the regulatory payment body shall take steps in controlling and disbursing funds for projects. Total advance funding and disbursement for completed quantities in a year shall not be allowed to exceed the budget allocated for projects within the year. For funds disbursed in advance or according to the “pay first, check later” method, the time limit for control and disbursement of these funds shall be within 01 working day of receipt of the complete set of documents required herein.

5. Disbursement in foreign currencies:

If the investor pays the contractor or the seller or lessor of real property in a foreign currency, the following regulations must be observed:

a) Paying foreign-currency sums funded by the central government-controlled foreign currency fund:

- Based on the annual budget and demands for expenditure in foreign currencies used for funding projects, the managing agency shall prepare the general chart of the annual public investment budget allocations in Vietnamese dong with conversion into US dollars at the exchange rate quoted by the Ministry of Finance at the time of assignment of the plan prepared by the managing agency according to demands for foreign-currency expenditures in a year for projects under its management, total of which does not exceed the annual budget authorized in a year, for submission to the Ministry of Finance and the regulatory payment body (Form No. 01.nn/PB).

- Where foreign-currency disbursement is needed, the managing agency shall send the written request for withdrawal of funds from the state budget in foreign currency (Form No. 07/TT) to the regulatory payment body.

- Vietnamese representative agencies in foreign countries shall be entitled to use the state budget funds that they are allowed to temporarily retain for disbursing authorized budgets when receiving the notification about such entitlement from the Ministry of Foreign Affairs. When wishing to take out foreign-currency money from this fund, they shall issue two copies of the form of fund withdrawal cum recording of the state budget receipt (Form No. 06/TT) to the regulatory payment body.

b) For foreign-currency payments not derived from the central government-controlled foreign currency fund: The managing agency (or the investor) uses the amount that the regulatory payment body disburses in advance or pays for purchase of foreign currencies from banks to pay the beneficiary. The regulatory payment body shall complete advancing and payment procedures to transfer money to the account of the commercial bank that the managing agency contracts to buy foreign currencies.

c) The regulatory payment body provides foreign currencies upon the managing agency’s request. Specifically as follows:

- In case of expenditures derived from the central government-controlled foreign currency fund: Based on the chart of the annual public investment budget allocations in Vietnamese dong with conversion into the US dollar sent by the managing agency at the beginning of each year and the request form for withdrawal of state budget funds in foreign currencies made by the managing agency in accordance with regulations of this Decree, the regulatory payment agency shall withdraw money from the centralized foreign currency fund for disbursement purposes.

- In case of using state budget funds temporarily retained at overseas Vietnamese representative agencies: Based on the chart of annual state budget allocations in Vietnamese dong with conversion into US dollar that the managing agency sends at the beginning of the year and copies of evidencing documents that the Ministry of Foreign Affairs sends in accordance with this Decree, the regulatory payment body shall scrutinize elements; sign on these copies and use the first copy of “Form of fund withdrawal cum recording of the state budget receipt” to record the state budget receipt from “Consular charges or other revenues in foreign countries"; account for the fund disbursement to the Ministry of Foreign Affairs (classified by the appropriate chapter, heading, item and sub-item in the state budget indices currently in force); send the remaining copy to the Ministry of Foreign Affairs for accounting purposes and notify overseas Vietnamese representative agencies of permission to withdraw funds that they are temporarily retaining for use.

Section 4. MANAGEMENT AND DISBURSEMENT/PAYMENT OF PUBLIC INVESTMENT FUNDS FOR PPP PROJECTS

Article 22. Management and utilization of public investment funds for investment preparation; compensation, site clearance, support, residential resettlement; support for construction of temporary works

1. Management, disbursement and settlement of public investment funds for investment preparation; compensation, site clearance, support, residential resettlement; support for construction of temporary works shall be subject to regulations on management, disbursement, payment, settlement of state budget-funded investments herein.

2. Expenses for implementation of the pre-investment mandate for PPP projects shall be prescribed in the invitation-for-bid documents as a basis for the selected investor to repay expenses for implementation of the investment preparation mandate as per clause 2 of Article 73 in the Law on Investment in the Public-Private Partnership Mode.

3. The selected investor shall be obliged to reimburse pre-investment expenses to the state budget in accordance with law on PPP investment and state budget.

Article 23. Fund management and disbursement/payment with respect to portions of funding for public investment in financial support for development of works and infrastructure which is split into a subproject of the PPP project and for payment of compensation for early contract termination to investors or PPP project enterprises

1. Fund management and payment/disbursement with respect to portions of funding for public investment in financial support for development of works and infrastructure which is split into a subproject of the PPP project as per point a of clause 5 of Article 70 in the Law on Investment in the Public-Private Partnership Mode, and for payment of compensation for early contract termination to investors and PPP project enterprises shall be the same as those with respect to state budget-funded investment projects in accordance with this Decree. In particular, the dossier on control and disbursement/payment of public investment funds shall be subject to clause 3 and 4 of this Article.

2. The maximum payment for completed quantities in a subproject shall account for 50% of the budget for implementation of the subproject that a PPP project enterprise approves while the remaining payment shall be made after receiving confirmation that the project is completed under law on investment in the PPP mode.

3. Dossier on disbursement/payment of public investment funds for implementation of subprojects of PPP projects:

a) Agencies signing PPP project contracts send the regulatory payment body (State Treasury) where transactions occur 01 set of legal documents for implementation of the project (only once till the date of termination of the PPP project contract, except where there is any modification or supplement) before or during the time of request for payment/disbursement of portions of public investment funds, including:

- Annual public investment plan commissioned by competent authorities;

- Decision on approval of the PPP project issued by the competent authority, and decisions on PPP project adjustment (if any);

- Decision on approval of investor selection results under law on PPP;

- PPP project contract and appendices to the PPP project contract (if any);

- Decision on approval of investor selection results of the PPP project enterprise under law on PPP;

- Contract between the PPP project enterprise and the contractor; appendices to the contract that are required in case of any change in contractual terms and conditions (if any);

- Written document stating assignment of tasks or intracorporate turnkey contract that is required in case of self-implementation by the investor or the PPP project enterprise;

- Cost estimate and decision on approval of the cost estimate ratified by the PPP project enterprise in accordance with law on PPP that are required if specific jobs, items of work or works of the subproject is autonomously implemented by the investor or the PPP project enterprise, through the contractor appointment, and other jobs that are performed without any contract.

b) Based on the completed quantities successfully tested and payment conditions specified in the PPP project contract, the agency signing the PPP project contract issues and sends the regulatory payment body (State Treasury) where transactions occur 01 set of request documents for disbursement of public investment funds, including:

- Chart of completed quantities in the subproject of the PPP project that are compiled by the PPP project enterprise with certification by the agency signing the PPP project contract as the request for payment/disbursement under the PPP project contract (Form No. 09/PPP);

- Written document confirming completed work of the agency signing the contract that is required under legislation on PPP with respect to the portion of funding of which the request for payment is made after the PPP project enterprise obtains confirmation of completed works;

- Form of request for disbursement of public investment funds for implementation of the subproject of the PPP project (Form No. 10/PPP);

- Money transfer proof (Form No. 05/TT).

4. Dossier on disbursement of public investment funds for compensation for early contract termination paid to investors or project enterprises:

a) Legal dossier of the project (originally sent when transacting with regulatory payment bodies; on demand; modified or supplemented), including:

- Annual public investment plan commissioned by competent authorities;

- Competent authority’s written document stating decision on payment of expenses for action against early contract termination as per clause 4 of Article 82 in the Government’s Decree No. 35/2021/ND-CP dated March 29, 2021, specifying and providing instructions for implementation of the Law on Investment in the PPP Mode.

b) Payment documents (sent when making each payment request), including:

- Payment request (Form No. 04.a/TT);

- Money transfer proof (Form No. 05/TT).

Section 5. MANAGEMENT AND DISBURSEMENT OF FUNDS DERIVED FROM LEGITIMATE REVENUES RETAINED BY STATE REGULATORY AUTHORITIES AND PUBLIC SERVICE UNITS FOR DEVELOPING PUBLIC INVESTMENT PROJECTS

Article 24. Account opening

1. For legitimate revenues that state regulatory authorities retain for investment purposes:

a) Investors shall open accounts for fund management and disbursement at the State Treasuries where transactions are facilitated.

b) Signing up for an account for control and payment purposes shall be subject to the Government’s regulatory provisions related to administrative formalities for the state treasury field and those of the Ministry of Finance pertaining to instructions on signing up for and using accounts opened at State Treasuries.

2. For legitimate revenues that public service units retain for investment purposes, the places where accounts are opened for fund disbursement shall be subject to the Government’s regulations on financial autonomy of public service units. Public service units shall check the disbursement of funds under the regulations of Article 25 herein.

Article 25. Management, checking and disbursement/payment of funds

1. Legal dossiers, advance funding dossiers, disbursement/payment dossiers of projects shall be subject to Article 9 herein.

2. Management, advance disbursement, recovery of advance disbursement, and disbursement/payment of funds shall be subject to Article 10 and 11 herein.

3. Time limits for advancing and disbursement/payment of funds on an annual basis, and time limits for control and disbursement/payment of funds set by the regulatory payment body, shall be subject to the regulations laid down in Article 13 herein.

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