Nghị định 177-CP

DECREE No DECREE No. 177-CP ISSUED ON THE 20th OF OCTOBER, 1994 ON THE PROMULGATION OF THE REGULATION ON THE MANAGEMENT OF INVESTMENT AND CONSTRUCTION THE GOVERNMENT Pursuant to the Law on Organization of the Government on the 30th of September, 1992; At the proposals of the Minister of Construction, the Minister of Finance and the Minister-Chairman of the State Planning Committee: DECREES: Article 1.- To issue together with this Decree the Regulation on the Management of Investment and Construction in replacement of the Regulation on the Management of Capital Construction issued together with Decree No. 385-HDBT on the 7th of November 1990, and the Regulation on the Drawing up, Inspection and Approval of Construction Designs issued together with Decree No. 237-HDBT on the 19th of September 1985 by the Council of Ministers. Article 2.- This Decree takes effect on the date of its signing. Article 3.- The Minister-Chairman of the State Planning Committee, the Minister of Construction and the Minister of Finance shall have to direct the detailed implementation of the Regulation on the Management of Investment and Construction issued together with this Decree. Article 4.- The Ministers, the Heads of ministerial-level agencies, the agencies attached to the Government and the Presidents of the People's Committees of the provinces and cities directly under the Central Government shall have to implement this Decree. On behalf of the Government Prime Minister VO VAN KIET REGULATION ON THE MANAGEMENT OF INVESTMENT AND CONSTRUCTION (ISSUED TOGETHER WITH DECREE No. 177-CP OF THE GOVERNMENT ON THE 20th OF OCTOBER, 1994) Chapter I GENERAL PROVISIONS Article 1.- Definition: In this Regulation, the following terms are understood as follows: 1. Management of investment and construction: To manage investment and construction is to exercise State management of the process of investment and construction from the determination of the investment project to the implementation of the investment and also of the process of putting the project into operation and use according to the set objective. 2. Investment project: An investment project is an assortment of suggestions concerning the disbursement of capital to create, expand or transform given objects aimed at realizing an increment in quality or an improvement or upgrading of the quality of a certain product or services in a given period. 3. Construction projects: A construction project is a product of the construction and assembly technology associated with land (including water area, the sea and the continental shelf) created by construction materials, equipment and labor. A construction project may consist of one or many installations in a synchronous technological chain (this may include cooperation in production) in order to produce the end-product stated in the project. 4. Investor: The investor is the owner of the capital. An investor may be an organization or an individual who contributes the whole or part of the capital and takes responsibility for mobilizing the remaining part of the capital to invest as prescribed by law. In case the investment capital of the project is chiefly owned by the State, the investor is the one who is granted the decision on investment right from the moment the project is drawn up and who is given the responsibility of directly using the capital. 5. Total investment: Total investment is the investment projected to be spent on the whole process of investment aimed at achieving the objective of investment in order to put the project into operation and use according to the requirement of the project (including allowance made for an increase of prices). 6. Total estimated cost of the project: Total estimated cost is the total expenditures necessary for the investment in the project which is minutely calculated in the stage of technocal designing. This total estimated cost comprises expenditures related to the survey, designing, construction, purchase of equipment; expenditures in the use of the land on which compensation is to be made for the displacement of former constructions or for clearing the ground; expenditures on out-houses, working offices, the temporary dwelling of the construction workers in large-scale constructions; and other expenditures, including reserve expenditures (including allowance made for an increase of prices). 7. Statement of accounts concerning the investment capital: An investment capital account is the whole of lawful expenditures already made in the process of investment aimed at putting the project into operation or use (not counting the expenditures to overcome consequences of natural disasters and enemy sabotage and unreasonable and unlawful expenditures). 8. Construction norms: The construction norms are the legal documents concerning the regulations on technical conditions which must be used in the designing of the project construction, the management of civil and industrial projects. 9. Construction criteria: Construction criteria are prescribed technical norms in the carrying out of survey, designing, assembly and construction and test operation on completion, in order to ensure the quality of the project. They differ from one branch of construction to another and are issued by the State or the managing board of the controlling ministries of the specialized construction services. Article 2.- Fundamental requirements in the management of investment and construction: 1. To ensure strict implementation of the objectives of the socio-economic development strategy in each period along the socialist orientation. To achieve economic restructuring along the line of industrialization-modernization, to accelerate the economic growth rate, and to improve the material and cultural life of the people. 2. To mobilize and make the most effective use of domestic and foreign sources of investment in Vietnam, to make good use of the natural resources, labor and land potentials and all other potentials while protecting the ecological environment. 3. All construction must comply with the approved plans, have rational advanced and beautiful designs and apply advanced construction technology. The construction and assembly must conform to the schedule, achieve high quality with reasonable expenditures and adopt the system of construction guaranty. Article 3.- Fundamental principles of the management of investment and construction: 1. The management of investment and construction must ensure the creation of products and services accepted by the society and market in terms of prices and quality and meeting the objectives of socio-economic development in each period. 2. Realization of unified State management in terms of mechanism, policies and economic and technical norms for the whole process of investment and construction from general planning and planning to the mobilization and utilization of capital, selection of technology, architecture and design solutions, technical design, assembly, insurance and guaranty of the project. 3. Strict compliance with the order of investment and construction. 4. Clear delineation of the function of State management from the management of production and business. Clear definition of the responsibilities of the State management agencies, the investors, the consultancy organizations, the construction businesses, and the material and equipment supply businesses in the process of investment and construction. Article 4.- Order in investment and construction: All investments and constructions shall have to follow this three-period order: 1. Preparation for investment; 2. Carrying out of investment; 3. Completion of construction and putting the product into operation or use. Article 5.- Classification of investment projects: Depending on their character and scale, the investment projects are divided into three groups, A, B and C. The characteristics of each group are defined in the Appendix issued together with this Regulation (except for the projects using direct foreign investments which shall have a separate regulation). Article 6.- State managerial responsibility in investment and construction: 1. The Government exercises unified management of investment and construction by all economic sectors according to law and in conformity with the strategy for socio-economic development, defense and security and with the set general program and plan. The Government shall promulgate policies on the management of investment and construction policies to encourage investment in different areas and sectors of the economy, and preferential policies in investment as well as in the mechanism of capital mobilization and retrieval. 2. The Prime Minister shall decide the investment projects in Group A and empowers the ministers, the heads of ministerial-level agencies, and the Presidents of the People's Committees in the provinces and cities directly under the Central Government to decide the investment in the projects of Group B and Group C as prescribed by this Regulation. With regard to the projects in Group B, before the investment decision is made, thy must have the approval of the Minister-Chairman of the State Committee. With regard to the investment projects of the agencies attached to the Government or the organizations and agencies attached to the Central Government, the Prime Minister shall empower the heads of these agencies to decide on the investment in the projects in Group C. The Prime Minister shall empower the Minister-Chairman of the State Planning Committee to decide on the investment in the projects in Group B. 3. The State Planning Committee: The State Planning Committee shall have to study the mechanism and policies on the management of investment, work out the strategic aims and the socio-economic development plans in each region and territory, determine the investment structures and the list of priority projects and submit them to the Prime Minister for examination, approval and promulgation, or it may be empowered by the Prime Minister to promulgate them. The Committee shall have to balance the resources to ensure the needs of investment according to the development targets and the economic structure; direct the elaboration of the projects, preside over the expertise of the investment projects in Group A and submit them to the Prime Minister for decision to invest; inspect and supervise the implementation of the investment plan funded by sources under State management; ensure the necessary factors for the realization of the plan of putting part by part the results of investment into operation. 4. The Ministry of Construction: The Ministry of Construction shall have to study the mechanism and polcies on the management of construction and the plan for rural and urban construction and submit them to the Prime Minister for approval and promulgation. It may also have to issue or agree with specialized construction services to issue the norms, rules and regulations on the management of quality of construction and the construction economics (the system of economic and technical norms and targets, the general unit price) it shall also preside over the expertise the total estimate of expenditures of projects in Group A and submit them to the Prime Minister for examination before empowering the Minister of the controlling ministry to approve it. The Ministry of Construction shall exercise unified State management of consultancy work in construction investment and the business of construction and assembly, and the management and guidance for the organization of bidding and selection of consultants in bidders in construction and assembly. 5. The Ministry of Finance: The Ministry of Finance shall have to study the mechanism of managing the investment capital sources, the distribution of the total capital from the annual State investment budget and the measures to ensure its balance, then submit them to the Prime Minister for examination and promulgation or it may be empowered by the Prime Minister to promulgate them. The Ministry of Finance shall manage and allocate the State investment budget and preferential credits from the State investment budget and preferential credits from the State budget to the projects and program targets defined by the Government or re-loan to the businesses through the chosen bank. It shall inform the investors of the plan of annual budget allocation with regard to the projects which meet the conditions currently prescribed. The Ministry shall also ensure the State budget capital and preferential credits for the projects already registered in the investment plan, control the use of investment capital, direct the drawing up of the final statement of accounts when the project (or part of the project or installation) is completed and put into operation, and inspect the balance of accounts before the investment management agency's approval. 6. The Vietnam State Bank: - The Vietnam State Bank shall have to study the mechanism and policy on State management of money and bank credits in investment and construction and submit them of the Prime Minister for promulgation, or it may be empowered by the Prime Minister to promulgate them. It shall also guide the banks to mobilize capital inside the country and from outside the country to lend to the investors and to lend floating capital to the construction and assembly businesses. The banks shall have to decide themselves the loans and retrieval of debts from the investment projects at the market interest rates. - The Vietnam State Bank shall coordinate with the Ministry of Finance in the selection of the appropriate bank to provide the projects with capital borrowed from international credit organizations with the accreditation of the Ministry of Finance. 7. The State Committee for Cooperation and Investment shall have to study the mechanism and polices of drawing direct foreign investments and submit them to the Prime Minister for promulgation, or it may be empowered by the Prime Minister to promulgate them. The Committee shall also issue investment licenses and direct the enterprises having foreign investments to carry out the investment and construction according to the Law on Foreign investment in Vietnam and the regulations related to this Regulation and cooperate with the concerned services and echelons in conducting regular inspection of the operations of the businesses as stipulated in the investment licenses and other legal documents of the State. 8. The other concerned ministries: - The ministries with State functions in the management of land, natural resources, technology, environment, commerce, museums and cultural relics conservation, preservation of landscapes, national defense and political security and social order shall have to direct the investors in matters related to the drawing up of the investment projects within no more than thirty days after receiving the written proposal of the investor. They are entitled, depending on the concrete requirement of each project, to effect their managerial functions in the process of investment and construction and may ask for the suspension of unlawful investments and construction activities. - The ministries in charge of service management shall have to give concrete guidance for the implementation of the mechanism and policies on development investment of their services and shall exercise State management of the investment projects in their services. - The ministries with specialized construction service (industrial and civil construction, projects in transport, water conservancy, mining, power transmission and transformers, posts, agriculture, forestry and fisheries) shall provide concrete guidance for the realization of the mechanism and policies on construction in a way compatible to the characteristics of the specialized services; study and issue as prescribed by Government assignment the norms, order and technical rules of construction; work out the specialized economic and technical norms, and promulgate them with the consent of the Ministry of Construction. 9. The People's Committees in the provinces and cities directly under the Central Government: The People's Committees in the provinces and cities directly under the Central Government shall have to exercise State administrative management of all the organizations and individuals in carrying out investment projects on their territories in accordance with law. Article 7.- Responsibility of the investors and the consultancy organizations in construction and the supply of equipment and assembly: 1. Investors: - The investor shall have to carry out or hire consultancy organizations and the construction and assembly businesses having legal entity, or it shall have to expertize the projects drawn up by other consultancy firms. It also has to manage the project, and carry out the investment project through the economic contract as prescribed by current law. - The investor may use different sources of capital as prescribed in this Regulation in order to carry out the project and has to take overall and continuous responsibility for managing the use of these investment sources of capital right from the moment the project is drawn up, till it is carried out and put into operation as required in the approved project. - The investor has the responsibility to repay the loans as well as the mobilized capital on schedule and in conformity with other commitments made during the capital mobilization. - In case of a change of the investor, the successor must take the responsibility of inheriting the whole investment work of his predecessor and the responsibility of the investment work conducted during his incumbency. - If the investor is a business of all forms of ownership, in case of bankruptcy, the investment already achieved by the investor shall be handled in accordance with the Law on Bankruptcy. - When drawing up the dossier on pre-feasibility and feasibility study, the investor has the duty and right to ask the concerned agencies of the State to provide guidance on questions related to the project such as land, natural resources, water and electric supply, comminations and transport, ecological environment, fire prevention, protection of cultural and historical relics, defense and security. 2. Consultancy organizations on construction and equipment supply and assembly: The consultancy organizations on investment and construction (survey, designing, management of the implementation of the project) on the supply of equipment and materials, construction and assembly shall have to fully implement the economic contract signed with the investor or the managing director of the project and shall be accountable before law on the result of the implementation of the contract. Article 8.- Principles on the management of the use of the sources of investment capital: 1. The State budgetary capital shall be used for investment according to the State plan in the projects of construction of economic infrastructures; the headwater afforestation projects; the planting of protection forests, national parks, nature preserves; the construction of cultural, social and public utility projects; the State management projects and projects on science, technique, defense and security and other key projects of the State which are decided by the Government and which are not capable of direct capital retrieval. 2. The preferential credits from the State Budget shall be used to invest in economic infrastructure projects, job generation production centers, key projects of the State in each period (electricity, cement, iron and steel, water supply and drainage...), and a number of other projects of different services capable of capital retrieval already listed in the State plan. The Government shall decide on the investment in each of these project in different periods of the plan. 3. The Official Development Aid (ODA) of various international organizations and government