Circular No. 08/2022/TT-BTC on the management and use of revenues and expenditures during the process of selecting investors

MINISTRY OF FINANCE -------	SOCIALIST REPUBLIC OF VIET NAM Independence - Freedom - Happiness ---------------
Number: 08/2022/TT-BTC	Hanoi, February 9, 2022

CIRCULAR

REGULATIONS ON MANAGEMENT AND USE OF REVENUES AND EXPENSES IN THE PROCESS OF SELECTING INVESTORS

Pursuant to Decree No. 163/2016/NĐ-CP dated December 21, 2016 of the Government detailing and guiding the implementation of the Law on State Budget;

Pursuant to Decree No. 25/2020/NĐ-CP dated February 28, 2020 of the Government detailing and guiding the implementation of certain provisions of the Law on Bidding regarding the selection of investors;

Pursuant to Decree No. 10/2021/NĐ-CP dated February 9, 2021 of the Government on the management of construction investment costs;

Pursuant to Decree No. 15/2021/NĐ-CP dated March 3, 2021 of the Government detailing certain contents regarding project management in construction investment;

Pursuant to Decree No. 28/2021/NĐ-CP dated March 26, 2021 of the Government on the financial management mechanism for public-private partnership investment projects;

Pursuant to Decree No. 31/2021/NĐ-CP dated March 26, 2021 of the Government detailing and guiding the implementation of certain provisions of the Investment Law;

Pursuant to Decree No. 35/2021/NĐ-CP dated March 29, 2021 of the Government detailing and guiding the implementation of the Law on Investment under the Public-Private Partnership Model;

Pursuant to Decree No. 60/2021/NĐ-CP dated June 21, 2021 of the Government on the mechanism for financial autonomy of public service units;

Pursuant to Decree No. 99/2021/NĐ-CP dated November 11, 2021 of the Government on management, payment, and settlement of projects using state capital;

Pursuant to Decree No. 87/2017/NĐ-CP dated July 26, 2017, issued by the Government, stipulating the functions, tasks, powers, and organizational structure of the Ministry of Finance;

At the proposal of the Director of the Investment Department;

The Minister of Finance issues this Circular on management and use of revenues and expenses in the process of selecting investors.

PART I

GENERAL PROVISIONS

Article 1. Scope of Regulation

This Circular regulates management and use of revenues and expenses in the process of selecting investors to implement projects:

1. Projects under the public-private partnership (PPP) investment method as prescribed in Decree No. 35/2021/NĐ-CP dated March 29, 2021 of the Government detailing and guiding the implementation of the Law on Investment under the Public-Private Partnership Method (hereinafter referred to as Decree No. 35/2021/NĐ-CP);

2. Projects using land and projects required to organize bidding as provided in Decree No. 25/2020/NĐ-CP dated February 28, 2020 of the Government detailing the implementation of certain provisions of the Law on Bidding on investor selection (hereinafter referred to as Decree No. 25/2020/NĐ-CP) and Decree No. 31/2021/NĐ-CP dated March 26, 2021 of the Government detailing and guiding the implementation of certain provisions of the Law on Investment (hereinafter referred to as Decree No. 31/2021/NĐ-CP).

Article 2. Applicability

Organizations and individuals participating in or related to the activity of selecting investors to implement investment projects as prescribed in Article 1 of this Circular.

Article 3. Principles of revenue and expenditure management during the process of selecting investors

1. Revenues and expenditures in the selection of investors must be in accordance with their intended purposes and the regulations of the State and laws.

2. Temporary advances, payments, and settlements of revenues and expenditures during the process of selecting investors must comply strictly with the legal provisions on management, use, payment, and settlement of public investment capital and regular expenditures from state budget funds as stipulated in this Circular and other relevant provisions.

Article 4. Expenditures in the selection of investors to implement PPP projects

1. Expenditures in the selection of investors for PPP projects include:

a) Expenditure on preparing and reviewing tender invitation documents for preliminary selection;

b) Expenditure on evaluating preliminary selection tender documents;

c) Expenditure on reviewing the results of preliminary selection;

d) Expenditure on preparing and reviewing tender invitation documents for negotiation and bidding;

đ) Expenditure on evaluating negotiation and bidding tender documents;

e) Expenditure on reviewing the results of investor selection;

g) Expenditure on resolving investors' complaints about the results of investor selection.

2. The standard for the aforementioned expenditures as stipulated in Clause 1 of this Article shall be implemented according to Article 32 and point e, Clause 2, Article 73 of Decree No. 35/2021/NĐ-CP.

Article 5. Expenditures in the selection of investors for projects using land and projects required to organize bidding as provided in the specialized laws and laws on socialization

1. Expenditures in the selection of investors for projects using land and projects required to organize bidding as provided in the specialized laws and laws on socialization include:

a) Expenditure on preparing and reviewing tender invitation documents and request documents;

b) Expenditure on evaluating tender and proposal documents;

c) Expenditure on reviewing the results of investor selection;

d) Expenditure on resolving investors' complaints about the results of investor selection.

2. The standard for the aforementioned expenditures as stipulated in this Article shall be implemented according to Clause 1 of Article 7 of Decree No. 25/2020/NĐ-CP amended and supplemented at Clause 5 of Article 89 of Decree No. 35/2021/NĐ-CP.

Article 6. Revenue items in selecting investors

1. Revenue from tender document sale fees and other revenue items (if any) after fulfilling tax obligations shall be deposited into the State budget in accordance with the laws on the State budget by the tender inviter.

2. Revenue items for which the selected investor is responsible for reimbursing the costs specified in Article 4 and Article 5 of this Circular shall be deposited into the State budget in accordance with the laws on the State budget within fifteen days from the date of signing the PPP contract, the contract between the competent state agency and the investor implementing the project using land, or the project required to organize a bidding process to select an investor under specialized laws and laws on socialization.

Chapter II

MANAGEMENT OF EXPENSES IN SELECTING INVESTORS TO IMPLEMENT PPP PROJECTS

Article 7. Sources of funds for selecting investors to implement PPP projects

The sources of funds for expenses related to selecting investors as stipulated in points a, b, c, d, đ, and e of Clause 1 of Article 4 of this Circular shall be allocated from the capital plan for preparing PPP projects from the public investment capital of the competent authority and included in the total investment cost of the PPP project.

Article 8. Management and use of funds in bidding to select investors to implement PPP projects

1. In cases where the tender inviter is the Project Management Board, the management, use, and settlement of funds for bidding to select investors to implement PPP projects shall be carried out in accordance with the regulations of the Ministry of Finance on managing and using revenues from consulting and project management activities of investors and project management boards using public investment capital.

2. In cases where a specialized unit or a subordinate unit of the competent authority hires consultants to select investors to perform one or all of the tasks specified in Clauses 2, 3, and 4 of Article 32 of Decree No. 35/2021/NĐ-CP, the consultant hiring fee shall be implemented as follows:

a) The total expenditure in selecting investors including taxes (including costs incurred by the tenderer itself) shall not exceed the approved budget estimate for the consultant hiring work.

b) The payment value to the consultant unit shall be carried out according to the Contract between the Tenderer and the Consultant Unit.

c) The management, use, payment, and settlement of funds specified in Point b of this clause shall be carried out in accordance with current regulations on the management, payment, and settlement of public investment funds.

3. In cases where a specialized unit or a subordinate unit of the competent authority has sufficient capacity and is approved by the competent authority to independently perform part or all of the tasks specified in Clauses 2, 3, and 4 of Article 32 of Decree No. 35/2021/NĐ-CP, the management and use of funds for organizing the bidding process to select investors by the assigned unit shall be conducted according to the financial mechanism approved by the competent authority.

Article 9. Expenses for resolving investor complaints about the selection results

1. In cases where an investor lodges a complaint about the selection result, which is resolved by a person with authority, the investor is responsible for submitting the expense for resolving the complaint to the Standing Office of the Advisory Council in accordance with point e of Clause 2 of Article 73 of Decree No. 35/2021/NĐ-CP.

2. The Standing Office of the Advisory Council shall prepare and submit to the Chairman of the Advisory Council for approval the budget estimate for resolving complaints about the selection results on a case-by-case basis.

3. The budget approved by the Chairman of the Advisory Council under Clause 2 of this Article shall not exceed the amount of expenses submitted by the investor according to Clause 1 of this Article.

4. The Chairman of the Advisory Council shall decide on the allocation of expenses according to the approved budget estimate for the members of the Advisory Council, the Standing Office of the Advisory Council, and other expenses to carry out the resolution of complaints.

5. The standing office assisting the Advisory Council shall be responsible for resolving complaints according to the approved budget by the Chairman of the Advisory Council.

6. Upon completion of resolving the complaint, the Chairman of the Advisory Council shall be responsible for confirming the actual expenses incurred. Any surplus amount paid by the complaining investor that exceeds the actual expenses (if any) shall be confirmed by the Chairman of the Advisory Council, and the Standing Office of the Advisory Council shall be responsible for refunding the excess amount to the complaining investor within seven days from the date the Chairman of the Advisory Council confirms the actual expenses incurred.

7. In cases where the investor's complaint is concluded to be correct, the decision on resolving the complaint about the selection result by the competent authority shall specify the amount of expenses and the deadline for the tender inviter to reimburse the investor. The amount of expenses the tender inviter must reimburse the investor shall be the amount paid by the complaining investor minus the amount already refunded by the Standing Office of the Advisory Council in accordance with Clause 6 of this Article (if any).

8. The source of funds for reimbursing the investor according to the decision on resolving the complaint about the selection result when the investor's complaint is concluded to be correct by the competent authority is stipulated as follows:

a) In cases where the tenderer is an administrative unit or a public service organization: the source of funds to refund investors shall be allocated from the regular budget of the unit.

b) In cases where the tenderer is not an administrative unit or a public service organization: the source of funds to refund investors shall be allocated from the operating funds of the unit.

Organizations or individuals found to be in violation according to the decision on resolving complaints about the selection results of the competent authority shall be responsible for compensating the tenderer in accordance with the law.

Chapter III

MANAGEMENT OF EXPENSES IN SELECTING INVESTORS FOR PROJECTS USING LAND, PROJECTS REQUIRED TO ORGANIZE A BIDDING PROCESS UNDER SPECIALIZED LAWS AND LAWS ON SOCIALIZATION

Article 10. Sources of funds for selecting investors to implement projects using land, projects that must be tendered according to specialized laws and laws on socialization.

1. The sources of funds for selecting investors to implement projects using land as stipulated at points a, b, and c of Clause 1, Article 5 of this Circular shall be allocated from the regular budget expenditure of provincial-level specialized agencies under the People's Committee of the province, agencies directly under the provincial People's Committee, or the district People's Committee assigned by the provincial People's Committee as the tendering entity, or from the regular budget expenditure of units directly under the Management Board of Economic Zones assigned by the Management Board of Economic Zones as the tendering entity, in accordance with Article 13 of Decree No. 25/2020/NĐ-CP amended and supplemented by Clause 6 of Article 108 of Decree No. 31/2021/NĐ-CP.

2. The sources of funds for selecting investors for projects that must be tendered according to specialized laws and laws on socialization as stipulated at points a, b, and c of Clause 1, Article 5 of this Circular shall be allocated from the regular budget expenditure of specialized agencies, agencies directly under ministries and sectors, provincial People's Committees; district People's Committees assigned by the provincial People's Committee as the tendering entity, or units assigned as the tendering entity in accordance with the provisions of specialized laws and laws on socialization, in accordance with Clause 2 of Article 16 of Decree No. 25/2020/NĐ-CP.

Article 11. Preparation, approval, and implementation of budgets.

1. Principles for preparing, approving, and implementing budgets.

The preparation, approval, and implementation of budgets for expenses in tendering to select investors as stipulated at points a, b, and Clause 1, Article 5 of this Circular shall be carried out in accordance with current regulations on preparing, approving, and implementing regular budget expenditures from state budgets.

2. Basis for preparing budgets for expenses in tendering to select investors to implement projects using land, projects that must be tendered according to specialized laws and laws on socialization.

a) The list of projects using land approved and published by competent authorities in accordance with Article 12 of Decree No. 25/2020/NĐ-CP amended and supplemented by Clause 5 of Article 108 of Decree No. 31/2021/NĐ-CP; the list of projects that must be tendered according to specialized laws and laws on socialization approved by competent authorities in accordance with Article 16 of Decree No. 25/2020/NĐ-CP amended and supplemented by Clause 7 of Article 108 of Decree No. 31/2021/NĐ-CP;

b) The investment selection plan approved by competent authorities;

c) Policies and regulations in accordance with current laws.

3. Preparation, approval, and implementation of budgets.

a) In accordance with the provisions of the State Budget Law and Clauses 1 and 2 of this Article: Provincial-level specialized agencies under the People's Committee of the province, agencies directly under the People's Committee of the province, district People's Committees; units directly under the Management Board of Economic Zones prepare budgets for each type of expense as stipulated in Article 5 of this Circular, consolidate them into their annual budget estimates, submit them to competent authorities for approval in accordance with regulations;

b) After the annual budget has been approved by competent authorities; the People's Committee of the province, the People's Committee of the district, the Management Board of Economic Zones allocate regular budget expenditures to units assigned to implement in accordance with regulations;

c) In cases where new projects using land, projects that must be tendered according to specialized laws and laws on socialization are approved by competent authorities during the year: Provincial-level specialized agencies under the People's Committee of the province, agencies directly under the People's Committee of the province, district People's Committees; units directly under the Management Board of Economic Zones prepare supplementary budgets, submit them to competent authorities for approval in accordance with current regulations.

Article 12. Management of expenses in tendering to select investors for projects using land, projects must be organized according to the provisions of specialized laws and laws on socialization.

1. In cases where the tenderer is a public service unit organizing the work of selecting investors using land as stipulated in Article 7 of Decree 25/2020/NĐ-CP amended and supplemented in Clause 5 of Article 89 of Decree No. 35/2021/NĐ-CP: The management, use, and settlement of expenses in selecting investors for projects using land, projects that must be organized according to the provisions of specialized laws and laws on socialization shall be carried out in accordance with the financial autonomy mechanism of public service units.

2. In cases where the tenderer is an administrative unit organizing the work of selecting investors as stipulated in Article 7 of Decree 25/2020/NĐ-CP amended and supplemented in Clause 5 of Article 89 of Decree No. 35/2021/NĐ-CP: The management, use, and settlement of expenses in selecting investors for projects using land, projects that must be organized according to the provisions of specialized laws and laws on socialization shall be carried out in accordance with the State budget law.

3. In cases where the competent state agency or the tenderer hires consultants to select investors to implement part or all of the works stipulated in Article 7 of Decree 25/2020/NĐ-CP amended and supplemented in Clause 5 of Article 89 of Decree No. 35/2021/NĐ-CP, the consulting fee shall be implemented as follows:

a) The total amount of expenses in selecting investors including tax (including costs incurred by the competent state agency and the tenderer itself) shall not exceed the approved budget estimate for the consulting work.

b) The payment value to the consultant unit shall be carried out according to the Contract between the competent state agency, the tenderer, and the consultant unit.

c) The management, use, payment, and settlement of funds specified in point b of this Clause shall be carried out in accordance with the current regulations of the State budget law.

Article 13. Expenses for resolving investor complaints about the results of selecting investors.

1. In cases where the investor has a complaint about the result of selecting investors by the authorized person, the investor is responsible for submitting the expense for resolving the complaint to the standing office assisting the Advisory Council in accordance with Clause 6 of Article 7 of Decree No. 25/2020/NĐ-CP.

2. The standing office assisting the Advisory Council shall prepare and submit to the Chairman of the Advisory Council for approval the budget estimate for resolving investor complaints on a case-by-case basis.

3. The budget approved by the Chairman of the Advisory Council under Clause 2 of this Article shall not exceed the amount of expenses submitted by the investor according to Clause 1 of this Article.

4. The Chairman of the Advisory Council shall decide on the allocation of expenses according to the approved budget estimate for the members of the Advisory Council, the Standing Office of the Advisory Council, and other expenses to carry out the resolution of complaints.

5. The standing office assisting the Advisory Council is responsible for resolving complaints according to the approved budget by the Chairman of the Advisory Council.

6. Upon completion of resolving the complaint, the Chairman of the Advisory Council is responsible for confirming the actual expenses incurred. Any surplus revenue over expenditure (if any), the standing office assisting the Advisory Council shall be responsible for refunding the investor who made the complaint within seven days from the date the Chairman of the Advisory Council confirms the actual expenses incurred.

7. In cases where the investor's complaint is concluded as correct, the decision of the authorized person resolving the complaint about the result of selecting investors must conclude on the level of expenses and the deadline for which the tenderer is responsible for refunding the investor.

8. The standing office assisting the Advisory Council shall issue a document requesting the tenderer to consider refunding the investor the amount of expenses equal to the amount of money the investor submitted minus the amount refunded by the standing office assisting the Advisory Council in accordance with Clause 6 of this Article (if any).

9. The source of funds to refund the investor according to the decision on resolving the complaint about the result of selecting investors is regulated as follows:

a) In cases where the tenderer is an administrative unit or a public service organization: the source of funds to refund investors shall be allocated from the regular budget of the unit.

b) In cases where the tenderer is not an administrative unit or a public service organization: the source of funds to refund investors shall be allocated from the operating funds of the unit.

10. Organizations and individuals found to have violated the decision on resolving the complaint about the result of selecting investors by the authorized authority shall be responsible for compensating the tenderer in accordance with the law.

Chapter IV

IMPLEMENTATION

Article 14. Responsibilities of Relevant Authorities

1. Responsibilities of the competent authority, the agency, or unit designated as the tender inviter:

a) Shall be responsible for managing and using revenues and expenditures during the selection process of investors in accordance with the provisions of the law;

b) Shall implement the preparation of budget estimates of costs during the investor selection process and prepare a final account report on cost usage, submit to the competent authority for review and approval;

c) Shall refund the amounts spent by the Advisory Board in cases where the investor's recommendations are determined to be correct.

2. Responsibilities of the payment agency:

Shall be responsible for supervising and paying expenses during the selection process of investors in accordance with regulations on state budget payments, laws on public investment, current financial management systems of the State, and specific provisions set forth in this Circular.

3. Responsibilities of the Chairman of the Advisory Board and the permanent working body of the Advisory Board

a) The Chairman of the Advisory Council shall be responsible for managing and using the amount of fees paid by investors as stipulated in Clause 1, Article 9 and Clause 1, Article 13 of this Circular to ensure efficiency, thriftiness, and compliance with legal regulations.

b) The permanent working body of the Advisory Council shall be responsible for receiving fees paid by investors, preparing and submitting to the Chairman of the Advisory Council for approval the budget estimate for Advisory Council activities according to the approved budget, and refunding the excess revenue over expenditure to investors who have made requests in accordance with Articles 9 and 13 of this Circular.

4. Responsibilities of Ministries, central agencies, other agencies, and localities:

Shall inspect the management and use of expenses during the selection process of investors for PPP projects, projects involving land use, and projects required to undergo bidding as stipulated by specialized laws, laws on socialization; take measures to handle violations in the management and use of expenses during the selection process of investors in accordance with legal regulations.

Article 15. Responsibilities of Investors

Pay state budget the expenses incurred in selecting investors as stipulated in Clause 1 of Article 6 of this Circular and laws on the state budget.

Article 16. Implementation Provisions

1. This Circular takes effect from March 25, 2022.

2. Provisions regarding the costs of selecting investors in Circular No. 88/2018/TT-BTC dated September 28, 2018, issued by the Ministry of Finance, concerning certain financial management aspects for PPP projects and the costs of selecting investors, shall cease to be effective from the date this Circular takes effect.

3. In cases where the budget estimate for selecting investors has been approved by the competent authority before the effective date of this Circular, the payment and settlement of costs for selecting investors shall be carried out in accordance with this Circular without the need for re-approval of the budget estimate.

4. In cases where the referenced documents in this Circular are amended, supplemented, or replaced, they shall be implemented in accordance with the amended, supplemented, or replacement documents.

5. Ministries, central agencies, other agencies, People's Committees at all levels, Management Boards of economic zones, and related organizations and individuals shall be responsible for implementing this Circular.

6. During implementation, in case of difficulties or obstacles, units are requested to report to the Ministry of Finance for review and appropriate amendments.

Place of Receipt: - Office of the General Secretary; - National Assembly's Office; - President's Office; - Central Party Office; - Government Office; - Supreme People's Procuracy; - Supreme People's Court; - State Audit Agency; - Ministries, agencies equivalent to ministries, agencies under the Government; - Central agencies of mass organizations; - State-owned Corporations, State Economic Groups; - Provincial People's Councils, Municipal People's Councils directly under the Central Government; - Departments of Finance, State Treasury provincial, municipalities directly under the Central Government; - Official Gazette; - Ministry of Justice's Legal Documents Inspection Department; - Units under the Ministry of Finance; - Units under the Ministry of Finance; - To be filed: VT, State Treasury. - To be filed: VT, DT (400b).

DEPUTY MINISTER DEPUTY MINISTER Ta Anh Tuan