Decree No. 104/2018/ND-CP dated August 8, 2018 on elaborating certain articles of the Law on amendments to the Law on overseas missions of Socialist Republic of Vietnam

DECREE

ELABORATING CERTAIN ARTICLES OF THE LAW ON AMENDMENTS TO THE LAW ON OVERSEAS MISSIONS OF SOCIALIST REPUBLIC OF VIETNAM

Pursuant to the Law on Organization of Government dated June 19, 2015;

Pursuant to the Labor Code dated June 18, 2012;

Pursuant to the Law on State Budget dated June 25, 2015;

Pursuant to the Law on Public Investment dated June 18, 2014;

Pursuant to the Law on Overseas Missions of the Socialist Republic of Vietnam dated June 18, 2009 and the Law on amendments to the Law on Overseas Missions of the Socialist Republic of Vietnam dated November 21, 2017;

At the request of the Minister of Foreign Affairs;

The Government promulgates a Decree elaborating certain articles of the Law on amendments to the Law on overseas missions of Socialist Republic of Vietnam.

Chapter I

GENERAL PROVISIONS

Article 1. Scope

This Decree elaborates certain articles of the Law on amendments to the Law on overseas missions of Socialist Republic of Vietnam pertaining to estimation, management, use and final statements of funds for recurrent operational costs, special operational costs in the field of trade (hereinafter referred to as trade-related operational fund) in overseas missions of Socialist Republic of Vietnam (hereinafter referred to as missions), management of investment projects of missions and special cases to appoint the Ambassador Extraordinary and Plenipotentiary.

Article 2. Regulated entities

This Decree applies to missions and relevant agencies, organizations, and individuals.

Chapter II

ESTIMATION, MANAGEMENT, USE AND FINAL STATEMENTS OF BUDGETS FOR TRADE-REATED OPERATIONAL COSTS OF THE MINISTRY OF INDUSTRY AND TRADE AT MISSIONS

Article 3. Trade-related operational fund at missions

The trade-related operational fund of the Ministry of Industry and Trade at missions shall be set aside in an estimate of the Ministry of Industry and Trade.

Article 4. Estimation, allocation, assignment and final statements of trade-related operational funds at missions

1. Estimation

Annually, at the time of formulating state budget estimates, the Ministry of Industry and Trade shall base itself on the current spending regimes and guidelines on formulation of state budget estimates issued by the Ministry of Finance as well as plans and tasks to be performed in the field of trade at representative missions in the planning year to formulate estimates of trade-related operational fund and include them in the state budget estimates of the Ministry of Industry and Trade, then send them to the Ministry of Finance for summarization and submission to a competent authority for decision and inclusion in the state budget estimates of the Ministry of Industry and Trade.

2. Allocation and assignment of estimates

According to the decision on assignment of the budget estimate, the Ministry of Industry and Trade shall allocate the trade-related operational funds to missions by specific administrative divisions, and then report it to the Ministry of Finance for inspection as prescribed.

3. Management, use and final statement

The Ministry of Industry and Trade, secondment staff of the Ministry of Industry and Trade shall take responsibilities for management, use and final statements of assigned funds as per the Law on State Budget and relevant laws.

Article 5. Responsibilities of the Ministry of Industry and Trade and the secondment staff of the Ministry of Industry and Trade at missions       

1. The Ministry of Industry and Trade shall:

a) Estimate, allocate, management, use and make final statement of trade-related operational funds as per the Law on State Budget and relevant laws.

b) Guide, direct the secondment staff of the Ministry of Industry and Trade at missions to receive, management and use the funds properly, gather adequate proof of spending, do cost accounting, and send reports to the Ministry of Industry and Trade for final statement of the funds as prescribed.

c) Check the spending, consider approving final statement of the spending proof submitted by the secondment staff of the Ministry of Industry and Trade at mission as prescribed.

2. The secondment staff of the Ministry of Industry and Trade at missions shall:

a) Open an account for the secondment staff of the Ministry of Industry and Trade in a reputable commercial bank in the host country for doing bookkeeping of proceeds (if any), receiving the fund from the state budget for spending purpose.

b) Manage the fund, fulfill the obligations of the account holder and other duties in conjunction with the management, use and final statement of the fund as prescribed.

Chapter III

MANAGEMENT OF INVESTMENT PROJECTS OF MISSIONS

Article 6. Rules for management of construction projects of missions

1. The formulation of, appraisal for, decision on investment policy and construction project decision of the missions from the public investment capital shall comply with the law on public investment, relevant law on construction and this Decree.

2. As for technical regulations, planning, history and culture preservation, responsibility for purchase of compulsory insurance, construction permits, construction contracts, construction eligibility, construction supervision, taking-over documents and other special regulations, the law of the host country shall prevail.

3. As for determination of total investment, construction estimates, including quantities calculated from the basic design, quantities calculated from the technical design, construction drawings, work requirements, norms, unit cost, the law of the host country shall prevail.

4. Any matters related to management and execution of construction projects of missions not regulated in this Decree shall comply with relevant regulations of Vietnam’s laws.

5. In the course of execution of construction projects of the missions, the Ministry of Foreign Affairs shall cooperate with the Ministry of Public Security to ensure the security and safety for the missions as per the law on protection of state secrets.

Article 7. Application of reduced procedures upon formulation of, appraisal for, decision on investment policy for construction projects of missions

As for group A projects, during the formulation of, appraisal for, decision on investment policy, the content of the pre-feasibility study report of the construction project shall comply with the law on construction without the need to make preliminary design drawings on construction, notes, technologies and equipment.

Article 8. Assessment and appraisal of construction projects

1. The investor shall engage a qualified consulting unit to assess the basic design and other matters of the feasibility study report; assess the construction drawing design and construction estimate; assess the economic-technical report.

2. The investor shall inspect and evaluate the assessment report made by the consulting unit before sending it to the appraising agency.

3. Based on the assessment result, the specialized agency of the Ministry of Foreign Affairs shall appraise the feasibility study report, economic-technical report, construction drawing design and construction estimate, and seek the cooperation of the Ministry of Construction where necessary.

4. Based on the scope and nature of the project, the Minister of Foreign Affairs may designate the investor to carry out the appraisal of and approval for the construction drawing design and construction estimate.

Article 9. Selection of contractors for construction projects of missions

1. The selection of contractors within Vietnam’s territory to execute construction projects of the overseas missions of Vietnam shall comply with applicable law on procurement.

2. If a contractor outside the Vietnam’s territory is selected to execute a construction project of a overseas mission of Vietnam, the competent decision-maker as per the law on procurement shall decide the plan for selection of the contractor that ensure that the chosen contractor is qualified, experienced and has a feasible method to perform the contract with quality assurance, efficiency, competitive prices, in specific:

a) As for a procurement of consulting services or non-consulting services up to VND 3 billion and procurement of goods, construction and works up to VND 5 billion, the investor shall take the steps below:

The investor shall select a preferred bidder among the qualified and experienced bidders that is conformable with the procurement.

The investor shall, based on the objectives, scope of work, approved estimate, make preparation and send a draft contract to the selected bidder. Based on the draft contract, the investor and the selected bidder shall initiate the negotiation and completion of the contract as the basis for approval for the results of bidder selection and conclude the contract.

Conclude the contract.

b) As for a procurement of consulting service or non-consulting service greater than VND 3 billion and a procurement of goods or construction greater than VND 5 billion, the investor shall take the steps below:

The investor shall select a preferred bidder among the qualified and experienced bidders that is conformable with the procurement in order to issue a request for proposals.

Engage a consulting unit to make a request for proposal, containing a brief statement describing the project/procurement; guidance on preparation and submission of proposals; criteria for qualifications of bidders; technical evaluation criteria and determination of contract price. Use the pass-fail system to evaluate qualifications and the technical proposal.

The investor shall approve the request for proposals and send it to the selected bidder.

The bidder shall prepare and submit a proposal as required in the request for proposal.

Engage a consulting unit to evaluate the proposal:

The proposal shall be evaluated according to the evaluation criteria as specified in the request for proposal. During the evaluation process, the investor shall invite the bidder to negotiate, clarify or amend the necessary information in the request for proposals to establish the eligibility of the bidder to the requirements for qualifications, experience, progress, volume, quality, technical solutions and measures to perform the contract.

The bidder shall be selected if it meets all of requirements below: a valid proposal; qualifications, experience and proposal in conformity with the requirements of the request for proposals; and the proposed bid-winning price do not exceed the approved contract price estimate.

The investor shall, based on the objectives, scope of work, approved estimate, make preparation and send a draft contract to the selected bidder.

Based on the draft contract, the investor and the selected bidder shall initiate the negotiation and completion of the contract as the basis for approval for the results of bidder selection and conclude the contract.

Conclude the contract.

Article 10. Selection of contractors for construction projects with construction component of missions

The selection of contractors for construction projects with construction component of missions shall comply with Article 9 of this Decree.

Article 11. Taking-over of works

The investor shall take responsibility for the quality of the works, taking-over and finalization of the contract for construction projects at missions. Where necessary, based on the scope and technical aspect of every project, the Minister of Foreign Affairs shall inspect the taking-over of works of the investor.

Chapter IV

SPECIAL CASES TO APPOINT THE AMBASSADOR EXTRAORDINARY AND PLENIPOTENTIARY

Article 12. Special cases to appoint the Ambassador Extraordinary and Plenipotentiary

If a nominee of Ambassador Extraordinary and Plenipotentiary is older than the ordinary age of appointment, he/she may be considered being appointed according to the situation of foreign affairs, working place, competency, personal prestige as per this Decree.

Article 13. Rules for appointment of the Ambassador Extraordinary and Plenipotentiary in special case

1. The appointment of the Ambassador Extraordinary and Plenipotentiary in a special case shall be carried out in a well organized, impartial, fair, public and proper manner.

2. Upon being appointed, the Ambassador Extraordinary and Plenipotentiary shall serve the full term of office as per the law on overseas missions of Vietnam.

3. The Minister of Foreign Affairs shall request the Prime Minister to propose the Standing Committee of National Assembly or the State President to appoint the Ambassador Extraordinary and Plenipotentiary on a case-by-case basis.

Article 14. Criteria for competency and personal prestige

The Ambassador Extraordinary and Plenipotentiary shall be appointed in a special case if he/she meets the criteria for competency and personal prestige as follows:

1. He/she has acquired deep and extensive knowledge about the host country or international organization.

2. He/she has acquired prestige, experience and dominant competency in the field of foreign affairs.

Article 15. Criteria for foreign affairs

The Ambassador Extraordinary and Plenipotentiary shall be appointed in a special case to satisfy one of the following foreign affairs requirements:

1. Boost one or certain special cooperation fields with respect to politics, national defense and security, economy in as between Vietnam and the host country or international organization.

2. Deal with one or certain material issues that greatly affect the interests of Vietnam in a relationship between Vietnam and the host country or international organization.

Article 16. Criteria for working places

Working places for the Ambassador Extraordinary and Plenipotentiary appointed in a special case:

1. Neighboring countries or Southern Asia countries.

2. Countries that have strategic partnership and comprehensive cooperation, the United Nations or places that have the significance in the relationship with Vietnam, in line with the foreign affairs requirements in each period.

Chapter V

IMPLEMENTATION

Article 17. Entry into force

1. This Decree comes into force as of the date of signing.

2. The estimation of trade-related operational funds at missions in the expenditure estimate of the state budget of the Ministry of Industry and Trade shall apply from the budget year 2019.

Article 18. Implementation

Ministers, Heads of ministerial-level agencies, Heads of Governmental agencies shall implement this Decree./.