Thông tư 105/2008/TT-BTC của Bộ Tài chính về việc hướng dẫn một số điều của Quyết định số 39/2008/QĐ-TTg ngày 14/3/2008 của Thủ tướng Chính phủ về việc ban hành Quy chế đấu thầu, đặt hàng, giao nhiệm vụ cung cấp dịch vụ sự nghiệp công sử dụng ngân sách nhà nước

CIRCULAR

GUIDING A NUMBER OF ARTICLES OF THE PRIME MINISTERS DECISION NO. 39/2008/QD-TTG OF MARCH 14, 2008, ON BIDDING, PLACEMENT OF ORDERS FOR, AND ASSIGNMENT OF THE PROVISION OF, PUBLIC NON-BUSINESS SERVICES FUNDED WITH THE STATE BUDGET

Pursuant to the Governments Decree No. 58/2008/ND-CP of May 5, 2008, guiding the implementation of the Bidding Law and the selection of construction contractors under the Construction Law;

Pursuant to the Prime Ministers Decision No. 39/2008/QD-TTg of March 14, 2008, promulgating the Regulation on bidding, placement of orders for, and assignment of the provision of public non-business services funded with the state budget;

The Ministry of Finance guides a number of articles of the Regulation on bidding, placement of orders for, and assignment of the provision of, public non-business services funded with the state budget, promulgated together with the Prime Ministers Decision No. 39/2008/QD-TTg of March 14, 2008, as follows:

1. Subjects of application under Article 2 of Decision No. 39/2008/QD-TTg of March 14, 2008 (below referred to as Decision No. 39/2008/QD-TTg) include:

a/ State management agencies, agencies allocated with funds for providing public non-business services and agencies tasked to provide, or authorized to organize bidding (or place orders) for the provision of, public non-business services funded with the state budget, including ministries, ministerial-level agencies, government-attached agencies: Peoples Committees of provinces or centrally run cities, administrative agencies and non-business units assigned to provide public non-business services.

Overseas Vietnamese representative agencies are not governed by this Circular.

b/ Domestic and foreign organizations of different economic sectors, regardless of whether they are public or non-public, which have the legal person status; independent professional practitioners lawfully operating in Vietnam and having sufficient conditions for and the function of providing services meeting the States requirements on the provision of public non-business services (below referred to as providers).

2. Provisions on the identification of public non-business services subject to bidding, placement of orders or assignment:

a/ Bidding shall be organized for public non-business services when the following conditions are met:

- Having a bidding plan and allocated funds for public non-business services put up for bidding.

- Having specified service users;

- Having specified service standards and quality;

- Using state budget funds of VND 500 million or more;

- Having a bidding decision of the head of a central agency (for public non-business services determined as spending tasks of the central budget) or the president of a provincial-level Peoples Committee (for public non-business services determined as spending tasks of the local budget);

Public non-business services which fully meet the above conditions must be put up for bidding. Only those that do not meet these conditions may apply the form of placement of orders or assignment.

For land measurement services for the grant of land use rights certificates, the president of a provincial-level Peoples Committee shall, based on practical conditions, decide on bidding for, placement of orders or assignment of these services.

For public non-business services valued at under VND 500 million while fully meeting the other conditions for bidding, the head of a central agency or the president of a provincial-level Peoples Committee shall, depending on specific conditions, decide on bidding for, placement of orders or assignment of these services.

b/ Apart from public non-business services subject to bidding (or placement of orders) listed in the Appendix to Decision No. 39/2008/QD-TTg, the head of a central agency or the president of a provincial-level Peoples Committee may, based on practical conditions, decide on other state budget-funded public non-business services subject to bidding (or placement of orders) and they shall report thereon to the Ministry of Finance for monitoring and management.

c/ State-funded public non-business services specified in the Appendix to Decision No. 39/2008/QD-TTg shall be provided in the following order of priority:

- Bidding;

- Placement of orders;

- Assignment of tasks.

Ministers, heads of ministerial-level agencies or government-attached agencies (below referred to as heads of central agencies) or presidents of Peoples Committees of provinces or centrally run cities (below referred to as presidents of provincial-level Peoples Committees) shall, based on the list of public non-business services specified in the Appendix to Decision No. 39/2008/QD-TTg, decide on the mode of service provision as appropriate.

3. Planning and issuance of criteria for the evaluation of bids for public non-business services under Article 6 of Decision No. 39/2008/QD-TTg are specified as follows:

a/ Bases for making a plan on bidding for a public non-business service

- The public non-business service is on the list of services subject to bidding, which is attached to Decision No. 39/2008/QD-TTg;

- Bidding for the public non-business service (outside the list of services subject to bidding, which is attached to Decision No. 39/2008/QD-TTg) has been decided by a competent agency under Point b, Section 2 of this Circular;

- The budget estimate allocated by a competent authority for the provision of the public non-business service;

- Documents and regulations related to bidding for the provision of the public non-business service.

b/ Details of a bidding plan

Depending on its nature and process of provision, a public non-business service may be divided into bidding packages. Such division must ensure the entirety of the service. The details of each bidding package in a bidding plan include:

- Name of the bidding package: The name of the bidding package must express the characteristics, details and scope of work of the bidding package, matching the described details of the service;

- Standards and objectives of the bidding package;

- Price of the bidding package: The price of the bidding package shall be set by the bidding organizer using econo-technical norms and expense limits issued by competent state management agencies;

- Form of selection of a provider; bidding method;

- Form of contract;

- Funding sources: For a single bidding package, funding sources and mode of payment to the provider must be clearly stated;

- Time of selection of a provider: The time of organizing the selection of a provider for a bidding package to ensure the implementation schedule of the bidding package complies with the Bidding Law;

- Time of contract performance: The time of contract performance must ensure that the bidding package is performed in accordance with the progress of provision of the public non-business service.

c/ Promulgation of criteria for evaluation of bids for public non-business services (including criteria for providers and for public non-business services)

- Based on the list of public non-business services (attached to Decision No. 39/2008/QD-TTg), ministers shall formulate and promulgate criteria for evaluating bids for each type of public non-business service under their management as a basis for evaluation of bids for the provision of public non-business services.

For public non-business services newly added to the list attached to Decision No. 39/2008/QD-TTg under decisions of heads of central agencies or presidents of provincial-level Peoples Committees, heads of central agencies or presidents of provincial-level Peoples Committees shall formulate and promulgate criteria for evaluation of bids.

- Criteria for a provider of a public non-business service include:

+ Criteria for evaluation of the providers financial capability and experience;

+ Criteria for evaluation of the managerial capability and labor force participating in the provision of the public non-business service;

+ Criteria for technical evaluation.

+ Time of provision of the public non-business service;

- Criteria for a public non-business service include:

+ Criteria for evaluation of the process of identifying the technology to form the state budget-funded public non-business service;

+ Criterion of the price (or unit price) of the public non-business service;

+ Criteria for quality evaluation based on results or products of the public non-business service;

+ Process and criteria for technical evaluation of the public non-business service.

- Heads of central agencies or presidents of provincial-level Peoples Committees having public non-business services subject to bidding shall:

+ Promulgate criteria for the selection of providers of public non-business services determined as spending tasks of their ministries, branches, units or localities;

+ Promulgate a model dossier of bidding for public non-business services in each domain;

+ Specify criteria promulgated by line ministries for bidding for public non-business services determined as spending tasks of their ministries, branches or localities.

4. Submission and approval of bidding plans, bidding dossiers and results of selection of providers under Article 7 of Decision No. 39/2008/QD-TTg are specified as follows:

a/ Submission of bidding plans for approval:

Units assigned to organize bidding for the provision of public non-business services shall submit bidding plans to persons competent to approve bidding plans and, at the same time, send these plans to bidding appraisal agencies, organizations or sections. A dossier of a bidding plan submitted for approval comprises:

+ Documents to be submitted for approval:

* The approved estimated fund for the public non-business service subject to bidding;

* A report on performed jobs in preparation for the bidding for the provision of the public non-business service and legal grounds for performance;

* Contents of the bidding plan under Point b, Section 3 of this Circular;

* A report on the bidding plan, covering jobs having formed bidding packages to be performed in one of the forms of contractor selection specified in Section 5 of this Circular;

* A report on jobs to which none of the forms of contractor selection specified in Section 7 of this Circular can be applied.

+ Materials enclosed with documents to be submitted for approval: A bidding plan submitted for approval must be enclosed with copies of materials used as a basis for making the bidding plan.

b/ Competence to approve bidding plans:

- Heads of central agencies shall approve bidding plans for the provision of public non-business services determined as spending tasks of ministries or central agencies under regulations;

- Presidents of provincial-level Peoples Committees shall approve bidding plans for the provision of public non-business services determined as spending tasks of localities under regulations.

The time limit for approving a bidding plan is 20 days from the date of receiving a report from the unit assigned to organize bidding for the provision of a public non-business service, an appraisal report of the appraisal agency or organization, and opinions of concerned agencies (if any).

c/ Competence to approve bidding dossiers and results of selection of providers:

- Heads of central agencies shall approve, or authorize heads of their subordinate units to approve, bidding dossiers and results of selection of providers of public non-business services determined as spending tasks of the central budget on the basis of reports of appraisal agencies;

- Presidents of provincial-level Peoples Committees shall approve, or assign heads of their subordinate professional units or agencies to approve, bidding dossiers and results of selection of providers of public non-business services determined as spending tasks of local budget on the basis of reports of appraisal agencies.

The time limit for approving a bidding dossier or results of selection of a provider is 20 (twenty) days from the date of receiving a complete and valid dossier.

5. Appraisal in bidding under Article 8 of Decision No. 39/2008/QD-TTg is specified as follows:

Appraisal in bidding covers appraisal of bidding plans, appraisal of bidding dossiers and appraisal of results of selection of contractors.

a/ Appraisal agencies, organizations or sections:

- For public non-business services falling within the approval competence of heads of central agencies, financial agencies assisting those heads shall assume the prime responsibility for, and coordinate with concerned agencies in, appraising bidding plans; other assisting specialized agencies shall assume the prime responsibility for, and coordinate with concerned agencies in, appraising bidding dossiers and results of selection of providers;

- For public non-business services falling within the approval competence of presidents of provincial-level Peoples Committees, provincial-level Finance Services shall assume the prime responsibility for, and coordinate with other specialized Services in, appraising bidding plans; while specialized Services shall assume the prime responsibility for, and coordinate with concerned agencies in, appraising bidding dossiers and results of selection of providers.

b/ Appraisal requirements:

- Agencies, organizations or sections assigned to appraise bidding plans shall examine and evaluate contents specified at Points a and b, Section 3 of this Circular; make and submit reports on appraisal results to authorities competent to approve bidding plans for the provision of state budget-funded public non-business services under Point a, Section 4 of this Circular;

- Agencies, organizations or sections assigned to appraise bidding dossiers shall examine and evaluate contents specified in Clause 2, Article 15 and Clause 2, Article 23 of the Governments Decree No. 58/2008/ND-CP of May 5, 2008, guiding the implementation of the Bidding Law and the selection of construction contractors under the Construction Law, and submit these dossiers to competent authorities for approval.

- Agencies, organizations or sections assigned to appraise results of selection of providers shall examine and evaluate contents specified in Article 72 of the Governments Decree No. 58/2008/ND-CP of May 5, 2008, guiding the implementation of the Bidding Law and the selection of construction contractors under the Construction Law, and submit these results to competent authorities for approval.

c/ The time limit for appraising a bidding plan, a bidding dossier or results of selection of a contractor is 20 (twenty) days from the date of receiving a complete and valid dossier for each job.

6. Expenses in bidding under Article 9 of Decision No. 39/2008/QD-TTg are specified as follows:

a/ Organizers of bidding for the provision of state budget-funded public non-business services may collect:

- Proceeds from the sale of bidding dossiers:

The bid solicitor shall sell a bidding dossier at the price (inclusive of taxes) which shall be decided by the head of the bidding organizer based on the size and nature of the service but must not exceed VND 1,000,000 (one million)/dossier set for domestic bidding packages. For international bidding, the selling price complies with international practice;

- Charges for appraisal of the results of contractor selection, even when contractors cannot be selected, which is equal to 0.01% of the price of a bidding package but must be between VND 500,000 (five hundred thousand) and VND 30,000,000 (thirty million).

- In case the provider files a petition about the results of contractor selection, the bid solicitor may collect a fee from the contractor to cover expenses for the consideration and handling of such petition. The fee level is equal to 0.01% of the bid of the petitioning provider but must be between VND 2,000,000 (two million)/provider and VND 30,000,000 (thirty million)/provider. In case the contractors petition is concluded as proper, the organization or individual at fault shall refund the fee already paid by the contractor. Individuals committing violations of law while performing their duties, causing damage to others, shall pay compensations under Clause 5, Article 39 of the Ordinance on Cadres and Public Employees; violating organizations shall use their funds to pay compensations under law.

b/ Bid security and contract performance security:

- In order to raise their sense of responsibility, bidders shall pay a sum to secure their bids. The bid security sum shall be specified in the bidding dossier and must not exceed 3% of the approved price of a bidding package. Bid security sums shall be refunded to unsuccessful bidders within 30 (thirty) days after the date of notification of the bidding results (except those that violate the provisions of Clause 6, Article 27 of the Bidding Law);

- The contract performance security sum shall be specified in the bidding dossier and must not exceed 10% of the contractual price. The validity of the contract performance security may last until the time of performance of the warranty obligation (if any). The provider that refuses to perform a contract that has come into force will not be refunded the contract performance security sum;

- For bidding packages valued at under VND 500,000,000 (five hundred million), the bid security sum is equal to 1% of the price of a bidding package and the contract performance security sum is equal to 3% of the contractual price.

c/ Specific expenses in bidding:

- Expense for making a bidding dossier;

- Expense for publishing bid invitations on the mass media (if any);

- Expense for hiring appraisers (if any);

- Expense for activities of the experts team;

- Expense for the advisory council to deal with petitions of providers (if any);

- Expense for appraisal of the results of selection of providers;

- Other expenses directly related to the bidding.

In case of hiring consultants to make bidding dossiers or organize bidding (selection of technologies; analysis and evaluation of bids), if the consultancy expense is under VND 500,000,000 (five hundred million), agencies or units may designate a contractor; if the consultancy expense is VND 500,000,000 (five hundred million) or higher, bidding must be organized under regulations.

d/ Expense levels:

- Expenses for hiring appraisers and publishing bid invitations on the mass media shall be paid according to actual expenses under contracts;

- Expenses for meetings of the experts team, meetings to appraise the bidding plan and bidding dossier, meetings of the advisory council, and other expenses comply with current norms and financial spending regulations. For expenses subject to no prescribed norms (no relevant regulations are available), the bidding organizer may pay expenses as actually incurred according to their reasonable and valid documents and shall be held responsible before law therefor;

- Expense for appraisal of the results of selection of providers (even when providers cannot be selected) is equal to 0.01% of the price of a bidding package but must be between VND 500,000 (five hundred thousand) and VND 30,000,000 (thirty million);

- Expense for the advisory council to deal with contractors petitions about results of selection of providers is equal to 0.01% of the bid offered by the petitioning provider but must be between VND 2,000,000 (two million) and VND 30,000,000 (thirty million);

dd/ Funding sources for bidding:

Organizers of bidding for the provision of public non-business services may use funding sources specified at Point a, Section 6 of this Circular to cover bidding expenses and deal with providers petitions.

If the funding sources specified at Point a, Section 6 above are insufficient to cover bidding expenses, bidding organizers may use their regular operating funds to make up the deficit. Surplus funds, if any, may be added to the bidding organizers operating funds.

7. Forms of and requirements for selection of providers under Article 10 of Decision No. 39/2008/QD-TTg are specified as follows:

a/ Open bidding: Open bidding is mandatory for state budget-funded public non-business services which are subject to bidding (except cases specified at Points b and c of this Section).

Before issuing bidding dossiers, the bid solicitor shall supply providers with bid invitation information specified below. The bid solicitor shall sell bidding dossiers to bidders. A bidding dossier must not impose any condition to restrict the participation of providers or to create advantages for one or some providers, causing unfair competition.

Bidding information covers:

- Bidding plan;

- Prequalification participation invitation notice, prequalification results;

- Bid invitation, for open bidding;

- List of contractors invited to the bidding;

- Contractor selection results;

- Information on handling of violations of the bidding law;

- Current legal documents on bidding;

- Other relevant information.

The above information must be published on bidding newspapers and websites under the guidance of the Ministry of Planning and Investment and may also be published on other mass media so that any interested organizations and individuals can access.

If there are fewer than 3 (three) contractors submitting bids at the time of bidding closure, heads of agencies, units or sections assigned to organize bidding for the provision of public non-business services shall report to competent authorities to decide to allow the extension of the time for bid submission in order to have more bids or to allow the opening of submitted bid dossiers for evaluation.

b/ Restricted bidding: Restricted bidding is applied in the following cases:

Services subject to high or special technical requirements and those of research or experimental nature for which the number of providers capable of meeting service requirements is limited.

In case of restricted bidding, at least 5 (five) capable and experienced providers must be invited to the bidding; if such providers are fewer than five, bid solicitors shall report it to persons competent to decide on bidding who shall consider and decide to allow the organization of restricted bidding or application of other forms of selection of providers.

c/ Designation of contractors: Designation of contractors is applied to state budget-funded public non-business services valued at under VND 500,000,000 (five hundred million) and when bidding plans and fund estimates of bidding packages have been approved by competent authorities under regulations. When necessary, heads of competent agencies or units may decide to organize bidding for services valued at under VND 500,000,000 (five hundred million).

In case of designation of contractors, a capable and experienced provider meeting service requirements shall be selected according to the process of designation of contractors.

8. Evaluation of bids under Article 14 of Decision No. 39/2008/QD-TTg is specified as follows:

Bidding organizers shall evaluate bids for state budget-funded public non-business services. Such evaluation must be based on criteria for evaluation of bids and other requirements set forth in bidding dossiers to ensure that capable and experienced providers having feasible solutions are selected. The evaluation of bids according to the steps of preliminary evaluation, detailed evaluation and contract negotiation must comply with Articles 18 and 19 of the Governments Decree No. 58/2008/ND-CP of May 5, 2008, guiding the implementation of the Bidding Law and the selection of construction contractors under the Construction Law.

a/ Preliminary evaluation of bids:

The preliminary evaluation of a bid is based on:

- The validity of the bid application;

- The valid status of the provider;

- The validity of the service;

- The number of originals and copies of the bids;

- Bid security;

- The goods offer list;

- The providers capability and experience in 3 consecutive years;

- Other requirements set in the bidding dossier.

Providers that fail to meet any of the requirements set forth in the bidding dossier shall be eliminated.

b/ Detailed evaluation of bids:

The evaluation of a bid must focus on:

- The providers experience in service provision and number of years of service provision;

- Specific capacity such as material and technical foundations, number of laborers and professional staff;

- Financial capacity such as total value of assets, value of assets used in service provision, annual turnover, pre- and after-tax profits, value of service contracts being performed, credit capacity, etc.

b1/ Method of evaluation of bids: A marking scale shall be used to evaluate and rank bids.

b2/ Way of evaluation:

- Technical and professional evaluation: A 100-point scale shall be used for technical evaluation, covering:

+ The providers experience and capability: between 10 and 20 points;

+ Technology used to provide the public non-business service: between 30 and 40 points;

+ The providers staff to perform the bidding package: between 60 and 40 points.

Technical and professional points are the total of points of the above 3 items. The minimum required number of technical and professional points shall be decided by the bid solicitor but must not be lower than 70% of the total points. A bid failing to attain the minimum number of technical points shall be eliminated for failure to meet technical requirements.

- Financial evaluation: A 100-point scale shall be used for financial evaluation. Before determining financial points, the price of a bid must be corrected and adjusted;

Financial points of each bid are determined as follows:

- Evaluation of the time of provision of the public non-business service: A 100-point scale shall be used for this evaluation. The time-based points should represent 1 -2% of the total points.

- General evaluation: Criteria for general evaluation shall be set based on criteria for technical evaluation, financial evaluation and evaluation of the time of provision of public non-business services, of which technical and professional points must represent at least 70% of the total points; financial points must represent 30% at most of the total points; and time-based points must account for 1-2% of the total points. The provider with the highest total of points shall be ranked first by the bidding organizer in the results of selection of providers submitted to the appraisal agency.

Total points of a bid are determined according to the following formula:

Total points = Technical points x (K) + Financial points x (C) + Time-based points x (T)

Of which:

K is the ratio of technical points (prescribed under the general marking scale),

C is the ratio of financial points (prescribed under the general marking scale),

T is the ratio of time-based points (prescribed under the general marking scale), provided that:

K + C + T = 100%

K ≥ 70%

C ≤ 30%

1% ≤ T ≤ 2%

Technical points are the bids points determined at the stage of technical evaluation according to the above regulations.

Financial points are the bids points determined at the stage of financial evaluation under Point b of this Clause.

Time-based points are the bids points determined for the time of provision of a public non-business service (from the beginning to the completion of the provision).

Matters concerning information on bidding and implementation of bidding comply with the Bidding Law.

9. Delivery and receipt contracts for the provision of public non-business services and adjustment of contracts under Article 16 of Decision No. 39/2008/QD-TTg are specified as follows:

a/ After bidding results are approved by competent authorities, bidding organizers shall notify in writing bidding results to bidders (including both successful and unsuccessful bidders). In notices of bidding results, bid solicitors need not to explain reasons for unsuccessful bids.

Bid solicitors shall send notices of successful bids, enclosed with draft contracts, to successful bidders and sign contracts with them in accordance with law.

Notices of successful bids and delivery and receipt contracts for the provision of public non-business services apply to all three forms of selection of providers: open bidding, restricted bidding and designation of contractors.

b/ Contractual terms must comply with the contents specified in bidding dossiers and current laws.

The negotiation, finalization and conclusion of contracts must be based on approved bidding results and requirements set forth in bidding dossiers, explaining and clarifying providers bids (when necessary).

In addition, the parties may reach agreement on additional contractual terms which must not contravene law.

After receiving a notice of its successful bid, the provider shall send a letter of approval and negotiate a contract with the bid solicitor within the time limit prescribed in the bidding dossier. Past the time limit prescribed in such, notice, if the provider refuses to negotiate or disapproves, the bidding organizer shall report it to a competent person who shall decide to cancel the bidding results, consider and decide to select the second-ranked provider and invite him/her to negotiate and finalize a contract on the provision of a public non-business service. A provider that refuses to negotiate a contract is not allowed to receive back the bid security sum already paid.

c/ In the course of performance of a contract, if there arise any circumstances causing difficulties to contract performance, the bid solicitor and provider shall report them to competent agencies for consideration and decision.

The settlement of petitions in bidding for public non-business services complies with the Bidding Law and the Governments Decree No. 58/2008/ND-CP of May 5, 2008, guiding the implementation of the Bidding Law and the selection of construction contractors under the Construction Law.

10. Placement of orders for the provision of public non-business services under Article 18 of Decision No. 39/2008/QD-TTg is specified as follows:

a/ Placement of orders is applied to public non-business services that fail to fully meet the conditions for bidding: The competence to decide on placement of orders is specified as follows:

- Heads of central agencies may decide on placement of orders for public non-business services that fail to fully meet the conditions for bidding, scientific research schemes and projects funded with central budget allocations; and authorize heads of their specialized agencies to place orders for the provision of public non-business services determined as spending tasks of the central budget;

- Presidents of provincial-level Peoples Committees shall decide on placement of orders for public non-business services that fail to fully meet the conditions for bidding, scientific research schemes and projects funded with local budgets; and authorize heads of their specialized agencies to place orders for the provision of public non-business services determined as spending tasks of local budget.

b/ Public non-business service providers must be capable in terms of capital, technical level, production technology, management ability and technical skills of workforce to meet the requirements of order placement contracts.

c/ Bases for placement of orders for public non-business services:

- A decision of the person competent to decide on placement of orders for the state budget-funded public non-business service.

- Unit price or price of the public non-business service provided by placement of orders, determined on the basis of current econo-technical norms and expense limits promulgated by competent agencies. For public non-business services subject to the States price appraisal, their unit prices for placement of orders shall be indicated in price appraisal notices of price management agencies under the Governments regulations detailing the implementation of a number of articles of the Ordinance on Prices and relevant laws.

Based on allocated funds and unit prices or charges of public non-business services decided by competent state management agencies, order-placing agencies shall determine the quantity, volume and quality of public non-business services in order to sign order placement contracts.

d/ Contents of an order placement contract, and adjustment of the value of an order placement contract comply with Articles 20 and 21 of the Regulation on bidding, placement of orders for, and assignment of the provision of, public non-business services funded with the state budget, promulgated together with Decision No. 39/2008/QD-TTg.

- A contract may be adjusted only during the period of contract performance under the signed contract and must be considered and decided by a person competent to decide on placement of orders. The adjusted contractual price must not exceed the fund estimate, total fund estimate or service charge under the approved plan on placement of orders and must be permitted by a person competent to decide on placement of orders;

- If there arise reasonable jobs outside the scope of the placed order, the person signing the order placement contract shall reach agreement with the provider that has signed the contract on making additional calculations for these jobs and report them to the person competent to decide on placement of orders for consideration and decision.

dd/ Payment for public non-business services provided by placement of orders is based on:

- The order placement contract signed between the order-placing agency and the provider;

- A record of take-over test of the quantity, volume and quality of the completed public non-business service between the order-placing agency and the provider;

- Price or unit price for payment as decided by a competent state management agency;

- Other relevant documents.

The order of and procedures for payment and settlement of public non-business products and services comply with the Governments Decree No. 60/2003/ND-CP of June 6, 2003, detailing and guiding the implementation of the State Budget Law, and guiding documents.

11. Assignment of the provision of state budget-funded public non-business services under Article 24 of Decision No. 39/2008/QD-TTg is specified as follows:

For state budget-funded public non-business services which fail to fully meet the conditions for bidding (under Article 5 of Decision No. 39/2008/QD-TTg and Section 2 of this Circular) or placement of orders (under Article 18 of Decision No. 39/2008/QD-TTg and Section 10 of this Circular), heads of central agencies or presidents of provincial-level Peoples Committees shall decide to assign the provision of these services to their public non-business units under current regulations. The allocation of budget funds, the payment and settlement of funds for the assignment comply with the Governments Decree No. 60/2003/ND-CP of June 6, 2003, detailing and guiding the implementation of the State Budget Law, and guiding documents.

12. Elaboration, implementation and settlement of state budget funds for bidding for the provision of public non-business services under Article 22 of Decision No. 39/2008/QD-TTg are specified as follows:

a/ Elaboration of budget fund estimates: Based on the tasks and contents of public non-business services subject to bidding or placement of orders, units assigned to organize bidding or place orders for these services shall make fund estimates for public non-business services put up for bidding or placement of orders and send them to their superior agencies in order to synthesize and send them to finance agencies of the same level for synthesis and submission to competent authorities for approval under the State Budget Law currently in force.

b/ Distribution and allocation of budget fund estimates for bidding for the provision of public non-business services: On the basis of fund estimates decided by competent authorities, fund estimates allocated to attached units must clearly indicate funds to be used for bidding or placement of orders for these services.

Public non-business units that cover some of their regular operating expenses or have all their operating expenses covered by the state budget may make estimates of expenses for bidding and include them in annual budget estimates for submission to competent authorities for approval.

c/ Based on fund estimates allocated by competent authorities, assigned units shall organize bidding (placement of orders) for the provision of public non-business services within the limits of these fund estimates.

d/ Providers that are non-business units, after having successfully bid or received orders for the provision of public non-business services, shall monitor and separately account funds received for such bids or orders, and fulfill financial obligations (if any).

dd/ For public non-business services for which charges are allowed to be collected from service users (such as training, job-training, healthcare) liable to pay charges or tuition fees, the amounts of charges or tuition fees retained under regulations shall be included in prices of bidding packages, bids, prices of successful bids or contractual prices. Each of the above prices is composed of a fund covered by the State and a fund collected from the user.

Providers may collect tuition fees or hospital fees from users of public non-business services under law to partially cover expenses and settle them together with expenditures covered by the state budget under current regulations.

e/ Positive difference between revenues and expenditures arising from a contract on the provision of a public non-business service is handled as follows:

- Providers that are public non-business units may, after fulfilling financial obligations towards the State (paying taxes under regulations), use this difference under Clause 1, Article 26 of the Governments Decree No. 43/2006/ND-CP of April 25, 2006, providing for the autonomy and accountability for task performance, apparatus, payroll and finance applicable to public non-business units;

- Providers that are enterprises shall account this difference under the Enterprise Law;

- Providers that are individuals or non-public units may decide how to use this difference after fulfilling financial obligations towards the State;

f/ Public non-business service providers shall settle allocated funds and finalize dossiers under current law.

13. Organization of implementation examination and supervision under Article 25 of Decision No. 39/2008/QD-TTg is specified as follows:

a/ For state management agencies:

- Heads of central agencies shall direct the examination, monitoring and supervision of the bidding or placement of orders for the provision of public non-business services determined as spending tasks of the central budget.

- Presidents of provincial-level Peoples Committees shall direct the examination, monitoring and supervision of the bidding or placement of orders for the provision of public non-business services ordered by the State which are determined as spending tasks of local budgets.

b/ For finance agencies: The Ministry of Finance, provincial-level Finance Services and specialized finance agencies shall perform the financial state management of bidding, placement of orders for, and assignment of the provision of, state budget-funded public non-business services;

- To verify the allocation of state budget estimates for state budget-funded public non-business services. If detecting that the allocation of such estimates is incompliant with the estimates allocated by competent state agencies or against policies, regulations, norms or quotas, to request budget-allocating agencies to adjust the estimates;

c/ Responsibilities of state treasuries:

- Based on budget estimates allocated to bid solicitors and contracts on the provision of public non-business services signed between bid solicitors and providers, to advance at least 30% of the contractual value to the providers for performance;

- To control spending dossiers and documents and promptly pay state budget expenditures according to the progress of contract performance: to join finance agencies and competent state management agencies in examining the use of state budget funds; to certify actual state budget expenditures made via state treasuries by providers of state budget-funded public non-business services.

14. Effect

a/ This Circular takes effect 15 days after its publication in CONG BAO.

b/ Ministries, branches and provincial-level Peoples Committees should report any problems arising in the course of implementation to the Ministry of Finance for timely settlement.