BỘ NGOẠI GIAO
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CỘNG HÒA XÃ HỘI CHỦ NGHĨA VIỆT NAM
Độc lập - Tự do - Hạnh phúc
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Số: 42/2018/TB-LPQT

Hà Nội, ngày 09 tháng 10 năm 2018

TL. BỘ TRƯỞNG
KT. VỤ TRƯỞNG
VỤ LUẬT PHÁP VÀ ĐIỀU ƯỚC QUỐC TẾ
PHÓ VỤ TRƯỞNG




Lê Hải Triều

GoI

Government of the Italian Republic

MOF

Vietnamese Ministry of Finance (The Borrower)

AICS

Italian Agency for Development Cooperation

IFI

Italian Financing Institution

ARTICLE 2

Purpose of the MoU

2.2. No party other than the Parties in this MoU will be allowed to derive any rights from this MoU or have claim to the funds involved.

ARTICLE 3

Project Objectives and Expected Results

3.2. The Specific Objective of the Project, to improve the capacity of flood forecasting and warning system in responding to climate-change situations in the South Central Regions of Viet Nam.

ARTICLE 4

Project Costs and Financing

ARTICLE 5

Institutions and Bodies involved in the Implementation of the MoU

5.1.1. For the Vietnamese side:

• MoF, acting as the Borrower for the Financial Agreement to be signed with the Italian Financing Institution:

• NHMS acting as the executing Agency, assigned by MONRE, through its PMU, for the negotiation, awarding and implementation of the contracts.

• MAECI-DGCS, acting as the Italian Counterpart for this MoU, representing the GoI;

• The Italian Agency for Development Cooperation (AICS), the Italian institution responsible for project implementation, management, technical assistance and monitoring under the provisions of this MOU by the Italian side.

5.2. The Parties will take all necessary measures to ensure that such institutions and bodies will fulfil the obligations of this MoU.

ARTICLE 6

Governance and Management of the Project

• representatives of MONRE, MPI and MOF for Vietnamese side.

The JSC has the main task and responsibility to supervise the Program’s activities smooth progress and provide orientation on its implementation. Concrete task and responsibilities taken by the JSC are detailed into the PID. The JSC is chaired by the leader of MONRE. All JSC decisions shall be taken unanimously

In addition to the tasks and powers assigned to the PMU according to the Vietnamese laws, PMU shall coordinate with AICS Hanoi in order to complete the necessary procedures for implementation of the Italian ODA project regulated in this MOU.

ARTICLE 7

Terms, Utilization and Conditions of the Italian Financing

7.2. The Soft Loan will be denominated in Euro. The Soft Loan will be provided at a concessionality level of 50 (fifty) %. The financial conditions corresponding to above mentioned level of concessionality are the following: interest rate: 0%. Soft loan duration: 30 years of which 20 years of grace period. These final financial conditions will be re-determined at the time of signing of the Financial Agreement (FA) between Cassa Depositi e Prestiti and the Vietnamese Ministry of Finance (MOF).

7.4. The Soft Loan shall be used only for purchasing goods, services and works related to the Project. A quota of, at least, 70 (seventy) per cent of the total Soft Loan amount must be used to purchase goods and/or services and/or works of Italian origin. The remaining quota - no more than 30 (thirty) per cent of the total Soft Loan amount - can be used to purchase goods and/or services and/or works of Vietnamese and/or of third Country origin, provided that such third Country of origin is a member of the Organisation for Economic Development and Co-operation (OEDC).

Goods and services for the Project shall be taxed in accordance with the Vietnamese law.

ARTICLE 8

Procurement procedures to be used

8.2. The procurements using totally or partly the Soft Loan shall be carried out through the competitive bidding procedures. The procedures to be adopted are those of the Vietnamese Law on Tendering complemented by the fundamental principles of Italian law on procurement and development aid as described in the Annex 1 to this MoU. The prescription of this MoU and Annex 1 will prevail upon the prescriptions of the Vietnamese law.

ARTICLE 9

Project Monitoring and Evaluation

9.2. Financial control is assigned to Cassa Depositi e Prestiti.

ARTICLE 10

Obligations of GoI

10.1. Provide, at the conditions stipulated in this MoU, the financial resources indicated at the previous Article 4, also by giving the necessary instructions to the IFI to finalize, together with the MOF, the FA.

10.3. Cause that all its bodies, involved in Project implementation, will make all efforts for the success of the Project and for the achievement of its objectives.

10.5. Designate the JSC Italian members, as soon as this MoU becomes effective.

ARTICLE 11

Obligations of the GOV

11.1. Provide fully and timely the financial resources indicated at the previous Articles 4;

11.3. Cause that all the Vietnamese institutions involved in Project implementation will make all efforts for the success of the Project and for the achievement of its objectives.

11.5. Ensure the implementing agency and project owner to be responsible for the use of the Soft Loan proceeds, for the management of contracts and for the supervision of the activities;

11.7. Ensure that all Vietnamese indirect taxes, including VAT and excluding income taxes resulting from the contracts to be financed out of the Soft Loan proceeds, will not be covered by the Italian Soft Loan;

11.9. Shall ensure some privileges and exemption including visa and customs procedures for foreign experts and their family in accordance with Vietnamese laws on foreign experts implementing ODA programs and projects in Viet Nam;

11.11. Designate the JSC Vietnamese members, the PD and the Vietnamese staff of the PMU, as soon as this MoU becomes effective;

ARTICLE 12

Impediments and Force Majeure

a) in case that the duration of the impediment to the implementation of the Project is less than six months, the use of the funds shall be suspended until the AICS authorises resumption of activities;

c) In case the impediment to the implementation of the Project is greater than twenty - four months, the Parties shall discuss about the continuation of the Project and define an agreed course of actions. In case that the continuation of the Project is not feasible, the Parties shall agree on the destination of the residual funds deducted the amount needed to finance the activities specified in the following Article 12.2.

ARTICLE 13

Settlement of Disputes and Amendments to the MoU

13.2. The Parties may modify this MoU at any time, provided that any modification should be set out into writing and agreed by the Parties.

ARTICLE 14

Termination of the MoU

14.2. In case of severe fault, MAECI-DGCS shall notify the event in writing to MPI, inviting it to take suitable measures to fix the consequences of the fault within maximum sixty days from the date of the notification. This time limit expired, MAECI-DGCS reserves the right to terminate the MoU, notifying MPI through a Verbal Note at least three months in advance.

14.4. MPI reserves the right on continuation of the Project by its own resources and MOF will refund in a single payment the entire contractual amount disbursed in advance (if any) and not spent yet. MAECI-DGCS retains an adequate credit amount to be paid to contractor for its work completed up to the date of termination.

ARTICLE 15

Entry into Force and Duration

15.2 This MOU shall have the same duration of the Soft Loan.

In witness thereof the undersigned, duly authorized by their respective Governments, have signed the present MoU.

ANNEX 1

ELIGIBILITY CRITERIA, ETHICAL CLAUSES, CONTRACT GENERAL PRINCIPLES

The content that was not regulated in this Annex shall be implemented in accordance with the Vietnamese Law on Public Procurement.

1. CONTRACTOR ELIGIBILITY

To avoid any conflict of interest, any natural or legal person, including entities within the same legal group, members of consortia, temporary associations, and sub-contractors, involved in the preparation of the Project shall be excluded from participating in tenders or from submitting offers aimed at the implementation of the Project.

The candidates/bidders must prove that their economic, financial, professional and technical capacity is suitable for the implementation of the contract. Unless otherwise established in the Agreement, the candidates/bidders must prove:

1.2.2. Professional and technical capacity: candidates/bidders shall provide a full record of the activities performed during the last three years; enterprises that have been established for less than three years may prove their professional and technical capacity with any document which the contracting authority may deem appropriate.

1.3. GROUND FOR EXCLUSION FOR PARTICIPATION IN CONTRACTS

1.3.1. They are in the conditions as referred to in the Italian Legislative Decree 8.8.1994, n. 490 ("Antimafia). Italian tenderers/offereres must provide the evidence thereof by the “certificato antimafia”. issued by the competent Italian authorities. Non-Italian tenderers/offerers must provide equivalent certificates, if issuable under their respective national law.

1.3.3. They are the subject of proceedings for a declaration of bankruptcy, for winding-up, for administration by the courts, for an arrangement with creditors or for any similar procedure provided for in national legislation or regulations.

1.3.5. They are guilty of grave professional misconduct proven by any means which the contracting authority can justify.

1.3.7 They have not fulfilled obligations related to the payment of taxes in accordance with the legal provisions of the country where they are established.

1.3.9. They have been declared to be in serious breach of contract for failure to comply with obligations in connection with another contract with AICS or another contract financed with Italian funds.

2. CONTRACT GENERAL PRINCIPLES

2.2. Upon prior agreement of the parties, economical convenience may be counterbalanced by social fairness, protection of public health, conservation of environment, and promotion of sustainable development.

2.4. Contracts may not be modified, unless the modification is approved by AICS pursuant to following clauses. Contractors are not entitled to any payment or reimbursement whatsoever for activities carried out without prior authorization. If AICS or the contracting authority so requires, contractors may be forced to restore, at their own expenses, the original state before the unauthorized modification.

2.6. Modifications of supply and service contracts may be allowed and shall be effective only upon AICS prior authorization, which may only be granted in the following cases:

2.6.2) unforeseen and unforeseeable circumstances, including the implementation of new materials, components or technology not existing when the award procedure was commenced, provided that the modifications ameliorate the quality of the performance, without increasing the contract total amount;

2.6.4) unless otherwise provided, the above-mentioned modifications may not increase or reduce the total contract amount beyond 20%, provided that the funding is available. In case the above- mentioned modifications will make the project total cost2.6.5) modifications, which, in the interest of the contracting authority, increase or reduce the total contract amount necessary to improve the quality and performance of the project are allowed up to 5%, provided that the funding is available and no substantial modification is made; the modifications shall be only due to objective reasons, unforeseeable when the contract was made;

3. ELIGIBLE AND INELIGIBLE COSTS

3.2. In any case, the following items shall not be considered eligible:

b) goods, services and civil works directly or indirectly connected to police or military activities;

d) provisions for outstanding debts and future losses of the beneficiary or the final users;

4. ETHICAL CLAUSES

4.2. Without the contracting authority’s prior written authorisation, contractors and their staff or any other company with which the contractor is associated or linked may not, even on an ancillary or subcontracting basis, supply other services, carry out works or supply equipment for the Project. This prohibition also applies to any other Projects that could, owing to the nature of the contract, give rise to a conflict of interest on the part of the contractors.

4.4. Civil servants or other officials of the public administration of the beneficiary country, regardless of their administrative situation, must not be engaged as experts by the tenderers unless the prior approval of the AICS has been obtained.

4.6. For the duration of the contract, contractors and their staff must respect human rights and undertake not to offend the political, cultural and religious mores of the beneficiary state. In particular, tenderes who have been awarded contracts shall respect core labour standards as defined in the relevant International Labour Organisation conventions (such as the conventions on freedom of association and collective bargaining; elimination of forced and compulsory labour; elimination of discrimination in respect of employment and occupation; abolition of child labour).

4.8. The contractor and their staff are obliged to maintain professional secrecy for the entire duration of the contract and after its completion. All reports and documents drawn up or received by the contractor are confidential.

4.10. The contractors shall refrain from any relationship likely to compromise their independence or that of their staff. If contractors cease to be independent, the contracting authority may, regardless of injury, terminate the contract without further notice and without the supplier having any claim to compensation.

4.13. Contractors undertake to supply AICS on request with supporting evidence regarding the conditions in which the contract is being executed. AICS may carry out whatever documentary or on-the-spot checks it deems necessary to find evidence in cases of suspected unusual commercial expenses.

4.15. Failure to comply with one or more of the ethics clauses may result in the exclusion of the candidate, bidder or contractor from other AICS contracts and in penalties. The individual or company in question must be informed of the fact in writing.