Decree No. 87/2002/ND-CP on consulting service supply and utilization activities.

THE GOVERNMENT

DECREE OF THE GOVERNMENT

Regarding advisory service provision and utilization activities.

 

THE GOVERNMENT

Pursuant to the Law on Organization dated December 25, 2001;

Pursuant to the Law on Navigation of Vietnam dated June 14, 2005; The Civil Code dated October 28, 1995;

To encourage the development of advisory activities;

At the proposal of the Ministry Ministry of Science and Technology Science and Technology,

 

DECREE:

PART I

GENERAL PROVISIONS

Article 1. Scope of regulation.

1. This Decree regulates advisory service provision and utilization activities, except for legal advisory services.

2. This Decree does not regulate advisory service provision activities where the user of the advisory service does not have to pay advisory fees to the provider of the advisory service.

Article 2. Scope of Application.

1. This Decree applies to organizations and individuals in Vietnam providing and utilizing advisory services in all economic sectors.

2. This Decree does not apply to foreign organizations and individuals providing advisory services in Vietnam.

Article 3. Apply legal documents.

1. All advisory service provision and utilization activities specified in Clause 1 of Article 1 must comply with the provisions of this Decree.

2. In cases where international treaties to which Vietnam is a party provide different provisions from those of this Decree, the provisions of such international treaties shall be applied.

Article 4. Encourage the development of advisory activities.

1. The State recognizes advisory activities as a type of specialized service within the scope of professions managed by the State.

2. The State encourages and supports the development of advisory activities, the establishment of advisory associations, and implements preferential policies to develop professional advisory organizations in all economic sectors.

3. Advisory activities enjoy the highest levels of preferential treatment within the system of policies on service provision activities as stipulated by law.

Article 5. Definitions.

In this Decree, the following terms are understood as follows:

1. Advisory activity is the collection, processing of information, application of professional knowledge, identification of issues, proposal of solutions, plans, project development, and monitoring and evaluation conducted independently and objectively by professional organizations or Vietnamese individuals at the request of advisory service users.

2. An advisor is an organization or individual providing advisory services in accordance with the provisions of this Decree.

3. A professional advisory organization is an entity that solely engages in advisory service provision and other activities closely related to the advisory profession such as research, training, technical support, information provision, or lawful representation in resolving issues requiring professional knowledge.

4. An advisory service user is an organization or individual using advisory services provided by advisors in accordance with the provisions of this Decree.

5. Utilizing advisory services from state budget funds refers to the case where the fee paid to the advisor is sourced from the state budget.

6. Independent advisory is advisory services provided by an advisor who is not administratively or financially dependent on the advisory service user.

Chapter II

ACTIVITY OF ADVISORY SERVICE PROVISION AND UTILIZATION

Section A. ADVISORY SERVICE PROVISION

Article 6. Conditions for advisory service provision.

1. For organizations engaged in advisory activities:

a) They are enterprises, scientific and technological organizations, or other organizations possessing the necessary expertise and experience in the advisory field, established and registered in accordance with the provisions of the law;

b) They have offices and working facilities;

c) They have at least two persons meeting the conditions stipulated in Clause 2 of this Article.

2. For individuals engaged in advisory activities:

a) They hold a college degree or higher in the advisory field or possess a professional qualification certificate as prescribed by law;

b) They have good moral character;

c) They have full civil capacity;

d) They are not currently under criminal investigation or subject to administrative measures in the advisory field;

e) They must operate within a specific advisory organization.

3. Civil servants may participate in advisory service provision if such participation does not contravene the Civil Servant Law.

Article 7. Principles of advisory activities.

1. Compliance with the law.

2. Legal responsibility for all professional activities.

3. Adherence to professional ethics.

4. Ensuring the independence, honesty, objectivity, and scientific nature of advisory activities.

5. Maintaining confidentiality of information received from advisory service users during the provision of advisory services, unless otherwise agreed by the client or prescribed by law.

Article 8. Rights of advisors.

1. Participate equally in selection or bidding processes for advisory services.

2. Negotiate and sign advisory contracts.

3. Collect advisory fees according to the agreement in the advisory contract.

4. Terminate or unilaterally suspend the performance of the advisory contract and claim compensation for damages when the advisory service user breaches their commitments in the advisory contract.

5. Request the advisory service user to provide necessary information and documents for the performance of the advisory contract.

6. Hire domestic and foreign experts to perform the advisory contract.

7. Conduct activities to promote the export of advisory services.

8. Establish advisory organizations in accordance with Clause 1 of Article 6 of this Decree.

9. Join domestic, regional, and international advisory associations in accordance with the law.

10. Exercise other rights as prescribed by law.

Article 9. Obligations of advisors.

1. Fulfill all obligations in the advisory contract.

2. Facilitate the submission of applications for intellectual property protection by the advisory service user for results obtained during the performance of the advisory contract, except where the advisory contract provides otherwise.

3. Compensate the advisory service user for losses resulting from the breach of commitments in the advisory contract.

4. Implement professional liability insurance.

5. Fully fulfill financial obligations as prescribed by law.

6. Fulfill other obligations as prescribed by law.

Article 10. Principles for calculating advisory fees.

1. Advisory fees are determined through mutual agreement between the parties based on the following factors:

a) The content, volume, and nature of work defined in the advisory contract;

b) The time and working conditions of the advisor;

c) The advisor's qualifications, experience, and reputation.

2. Advisory fees can be agreed upon in the following ways:

a) Based on the time spent working during the provision of advisory services;

b) On a lump sum basis;

c) As a percentage (%) of the value of the consulting work.

Section B. USE OF CONSULTING SERVICES

Article 11. Rights of the consulting service user.

1. Negotiate and sign the consulting contract.

2. Require the consultant to perform the consulting work according to the agreed quantity, quality, time frame, location, and other agreements stipulated in the consulting contract.

3. Terminate or unilaterally suspend the performance of the contract and claim damages as provided for in the consulting contract in case the consultant breaches the obligations committed in the consulting contract.

Article 12. Obligations of the consulting service user.

1. Provide truthful information and necessary documents to the consultant for the implementation of the consulting service.

2. Fully pay the consulting fee to the consultant as agreed upon in the consulting contract.

3. Fulfill other obligations as prescribed by law.

Section C. SOURCES OF FUNDS FOR THE USE OF CONSULTING SERVICES

Article 13. Sources of funds for the use of consulting services.

1. For agencies and units using consulting services from state budget funds, the cost of using consulting services shall be included in the preparation and implementation costs of programs and projects and comply with the State Budget Law regarding state budget expenditures.

2. For agencies and units using consulting services from their own funds, the cost of using consulting services shall be included in operational expenses or production and business costs of the agency or unit.

3. The Ministry of Finance shall take the lead and coordinate with the Ministry of Science and Technology and the Ministry of Planning and Investment to guide on sources of funds and methods for determining the cost of using consulting services as stipulated in Clause 1, Article 13 of this Decree.

Section D. USE OF CONSULTING SERVICES FROM STATE BUDGET FUNDS

Article 14. Use of consulting services from state budget funds.

1. Agencies and units may use independent consulting services from state budget funds for the following programs and projects:

a) Programs and projects for developing production or services, constructing infrastructure, education, healthcare, culture, science, technology, environmental protection, rural development, poverty reduction;

b) Programs and projects funded by state budget capital aimed at technological innovation or enhancing the operational capacity of enterprises, scientific and technological organizations, training institutions;

c) Programs and projects for developing sectoral and regional strategies and plans, research and drafting legal normative documents related to or affecting the activities of enterprises, scientific and technological organizations, training institutions;

d) Other programs and projects decided by competent authorities.

2. The programs and projects specified in Clause 1 of this Article shall use consulting services for the following tasks:

a) Pre-feasibility studies, feasibility studies, preparation of program and project documentation or provision of evidence for review and critique;

b) Post-feasibility study design, total estimate preparation;

c) Monitoring and evaluation of programs and projects.

Article 15. Obligations of the consulting service user from state budget funds.

In addition to the general obligations of the consulting service user as stipulated in Article 12 of this Decree, the user of consulting services from state budget funds must also fulfill the following obligations:

1. Organize the selection of consultants in accordance with the principles and procedures prescribed in Article 16 of this Decree.

2. Supervise and promote the work of the consultant, promptly address issues when the consultant fails to comply with the consulting contract.

3. Accept the consulting results, settle payments, and terminate the contract in accordance with the provisions of the consulting contract.

4. Bear legal responsibility for the use of consulting services.

Article 16. Principles and procedures for selecting consultants.

1. Agencies and units using consulting services funded from the state budget must organize public bidding to select consultants in accordance with current laws on public bidding.

2. In cases where public bidding is not required due to national security, defense, confidentiality requirements, or urgent tasks decided by competent authorities, agencies and units using consulting services funded from the state budget shall select consultants based on the following principles:

a) They must clearly define the requirements for the consultant through a work assignment agreement specifying the context, objectives, scope, expected results, methodological requirements, professional capacity of the consulting organization, qualifications, and experience of individuals directly implementing the consulting service;

b) They must clearly define the criteria and evaluation methods for selecting consultants and publish these criteria simultaneously with the work assignment agreement;

c) They must notify at least three (3) consulting organizations of their need for consulting services along with the work assignment agreement and select the consultant who fully and best meets the established criteria;

d) They must require the consultant to submit a technical proposal detailing the proposed approach to implementing the service, introducing the qualifications and experience of individuals involved in implementation, and a financial proposal specifying the cost of the service and the basis for determining the price.

Section D. CONSULTING CONTRACTS

Article 17. Forms of consulting contracts.

The consultant and the user of consulting services must express their agreements and commitments through a consulting contract in compliance with relevant laws.

Article 18. Contents of consulting contracts.

1. A consulting contract (hereinafter referred to as the contract) includes the following main contents:

a) Name, address, telephone number, fax, email of the consultant and the user of consulting services;

b) Objectives, scope, and expected results of the consulting service;

c) Rights and obligations of the consultant;

d) Obligations and rights of the user of consulting services;

đ) Timeframe and progress of implementing the consulting service;

e) Service fees and payment methods;

g) Agreements on intellectual property protection for consulting outcomes;

h) Applicable laws and dispute resolution methods;

i) Force majeure situations;

k) Termination of the contract and responsibilities of the parties upon termination;

l) Conditions for the effectiveness of the contract;

m) Duration of the contract, principles, and procedures for acceptance and settlement of the contract;

n) Situations for amending, supplementing the contract, and resolving arising issues.

2. Depending on specific circumstances, if both parties agree, other contents in the consulting contract may be adjusted or supplemented.

Chapter III

STATE MANAGEMENT OF CONSULTING ACTIVITIES

Article 19. Contents of state management of consulting activities.

1. Developing strategies and policies for the development of consulting activities in Vietnam.

2. Issuing, guiding, and organizing the implementation of legal documents governing consulting activities.

3. Organizing, guiding, training, and enhancing consulting skills.

4. Statistics, monitoring, and evaluating the situation of consulting activities.

5. Inspecting, supervising, handling complaints, accusations, and dealing with violations of laws on organizational and operational consulting activities.

6. Implementing measures to support the development of the consulting profession.

7. Implementing state management over international cooperation in consulting activities.

Article 20. State management of consulting activities.

1. The Ministry of Science and Technology assists the Government in uniformly managing state affairs related to consulting activities.

2. Ministries, ministerial-level agencies, and government-affiliated agencies within their respective functions, tasks, and authority are responsible before the Government for managing state affairs related to specialized consulting activities, issuing regulations on specialized consulting activities according to Article 6 of this Decree.

3. People's Committees of provinces and centrally-administered cities manage state affairs related to consulting activities within their jurisdiction.

Chapter IV

REWARD, VIOLATION HANDLING AND COMPLAINTS, REPORTS

Article 21. Awards.

Organizations and individuals with achievements in consulting activities are entitled to rewards in accordance with the law.

Article 22. Handling violations.

Organizations and individuals violating the provisions of this Decree will be subject to disciplinary action, administrative penalties, or criminal prosecution depending on the nature and severity of the violation, and must compensate for losses in accordance with the law if damage occurs.

Article 23. Complaints and accusations.

1. Organizations and individuals have the right to file complaints, and individuals have the right to report to competent authorities about decisions or actions of any organization or individual in consulting activities if they believe that such decisions or actions violate the provisions of this Decree or infringe upon their legitimate rights and interests.

2. Ministries, ministerial-level agencies, government-affiliated agencies, and People's Committees of provinces and centrally-administered cities within their functions, tasks, and authority shall handle complaints, accusations, and deal with violations in accordance with current laws.

3. Procedures for handling complaints and reports shall follow the provisions of the law on complaints and reports.

Chapter V

IMPLEMENTING PROVISIONS

Article 24. Transitional provisions.

Consulting organizations established and legally operating before this Decree takes effect, if they meet the conditions stipulated in Article 6 of this Decree, shall continue their operations and must comply with the provisions of this Decree and related legal normative documents.

Article 25. EFFECTIVE DATE

1. This Decree shall take effect fifteen days from the date of signature.

2. The Minister of Science and Technology shall lead and coordinate with relevant ministries and sectors to provide detailed guidance on the provisions of Article 6 and Article 14, issue a list of specialized consulting fields, and coordinate with the Ministry of Finance to provide guidance on the source of funds for consulting services as specified in Clause 1 of Article 13 of this Decree.

3. Ministers, heads of ministerial-level agencies, heads of government-affiliated agencies, Chairpersons of provincial People's Committees under central cities shall be responsible for implementing this Decree.