06/05/2023 15:17

Time limit for recovery of advance disbursements in Vietnam

Time limit for recovery of advance disbursements in Vietnam

I am an investor in a public investment project and have advanced funding from the State. I would like to know the time limit to recover the advance disbursements in Vietnam. _Thien Tan (An Giang)

Hello, Lawnet would like to answer as follows:

1. What is advance payment? What is public investment project?

According to the provisions of Clause 5, Article 3 of Decree 99/2021/ND-CP, advance payment means the regulatory payment body’s transferring money in advance to the individual and institutional beneficiary at the request of the investor to make necessary preparations for the implementation of activities involved in a mandate or project.

Thus, it can be understood that an advance funding for public investment is an advance by an investor of the State's capital to pay in advance to beneficiaries, to perform tasks and public investment projects.

According to the provisions of Clause 13, Article 4 of the Law on Public Investment 2019, a public investment project refers to a project using all or part of public investment capital.

Thus, public investment capital specified in Clause 22, Article 4 of the Law on Public Investment 2019 shall comprise: state budget funds; legitimate revenues of state agencies and public service units that are retained for investment purposes as provided in law.

2. Recovery of advance funding for public investment in Vietnam

According to Clause 5, Article 10 of Decree 99/2021/ND-CP, regulations on recovery of advance funding are as follows:

- Advance funding that is recovered by payments for completed contractual quantities;

+ Amount to be recovered in each instalment, must be agreed upon with contractors, specified in contracts, and must be fully recovered when total disbursement reaches 80% of the contract value (except where greater advance is permitted by competent persons).

- For compensation, support and residential resettlement work:

+ After paying beneficiaries, investors shall collect evidencing documents, proceed to make payment and recover advances within 30 days from the date of payment to beneficiaries, and avoid not taking action to recover advances until the compensation, support and residential resettlement plan is fully completed.

+ For advance funding against general and administrative costs of compensation, support and residential resettlement work, regulatory payment bodies shall consult the annual account of these general and administrative costs approved by competent authorities to proceed to recover advance funding.

- For project management expenses:

+ Investors shall make a list of completed quantities (bearing their signature and stamp) and submit it to regulatory payment bodies as a basis to carry out procedures for recovery of advance funding.

+ Investors shall not be required to submit documents evidencing payments or invoices to regulatory payment bodies, and shall be responsible for the accuracy and legitimacy of the quantities and requested payment value according to the approved cost estimate.

- For contracts for procurement of machinery and equipment:

Under contracts signed between investors and contractors, the full amount of advance funding must be recovered when quantities of work are completed as agreed upon in these contracts.

Note:

- In case where the project management authority or the investor directly takes charge of multiple projects,

On a quarterly, six-monthly and year-end basis, the investor shall prepare the distribution chart of project management expenses (completed quantities of work specified in the cost estimate) for each project for submission to regulatory payment bodies in order for the process for recovery of advances to proceed (Form No. 11/QLDA).

Form No. 11/QLDA: Download

3. Time limit for recovery of advance disbursements in Vietnam

According to Point d, Clause 6, Article 10 of Decree 99/2021/ND-CP, the time limits for recovery of advance disbursements are as follows:

- For the jobs carried out under contracts (e.g. construction contracts, contracts for execution of projects without building part or component):

+ If advance funding is late for recovery for more than 03 months from the due date of recovery stipulated in the contract during which the contractor has not yet used it for executing the project, or misuses it, the investor shall take charge of or cooperate with regulatory payment bodies in recovering advance funding to the state budget.

+ Where the investor has not recovered the advance disbursement yet, the regulatory payment body shall request the investor in writing to recover advance disbursement from the contractor, or request the credit institution to issue the guarantee for recovery of advance funding to fulfill their guarantee obligations when the contractor violates their commitment for use of advance funding to the investor.

- For compensation, support and residential resettlement work:

+ If the advance funding is late for recovery for a period of 03 months from the advance funding date during which it is not paid to the beneficiary, the investor shall take charge of and cooperate with the regulatory payment body in requesting the entity in charge of compensation, support and residential resettlement to transmit all of the balances of advance funding to the investor's deposit account at the regulatory payment body in order to facilitate the control, disbursement and recovery of advance funding.

Note:

- After such period, if the entity in charge of compensation, support and residential resettlement work has not fully transmitted the overdue balance of advance funding to the investor’s deposit account at the regulatory payment body, upon the investor's request, the regulatory payment body may withdraw money from the deposit account of the entity in charge of the compensation, support and residential resettlement work opened at the regulatory payment body and transfer such sum to the investor’s deposit account at the regulatory payment body, and notify such money transfer to the entity in charge of the compensation, support and residential resettlement work.

- One year after the date of money transfer to the investor’s deposit account opened at the regulatory payment body, if such sum has not yet paid to the beneficiary, the investor shall refund the amount of advance disbursement to the state budget (except where the person whose land is appropriated for project development purposes refuses to receive compensation or financial support according the approved plan for compensation, support or residential resettlement).

- Where the investor does not refund advance funding to the state budget, the regulatory payment body shall be allowed to withdraw money from the investor’s deposit account to remit such money into the state budget, reduce the amount of advance disbursement to the project and notify such reduction to the investor in that project.

- For other jobs performed without contracts:

+ If the advance funding is late for recovery for the period of 06 months from the advance disbursement date during which the investor has not recovered the advance funding yet, the regulatory payment body shall request the investor in writing to repay the amount disbursed in advance, except when the competent authority (the cost estimate approver) allows extension of the time limit for recovery of advance funding for completing quantities due to objective causes, or in case where advance funding against project management costs is paid to specialized or regional project management authorities.

+ Within 03 months after the date of mandatory repayment of amounts disbursed in advance, if the investor has not refunded the amount disbursed in advance, the regulatory payment body may withdraw money from the investor’s deposit account to remit such sum to the state budget, reduce the amount already disbursed for use by the project and notify this action to the investor.

The above are the costs of recovering the advance payment of a public investment project and the recovery period. You can refer to them so that you can comply with the law.

Hua Le Huy
115


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