BỘ NGOẠI GIAO
CỘNG HÒA XÃ HỘI CHỦ NGHĨA VIỆT NAM
Hà Nội, ngày 26 tháng 09 năm 2013
VỀ VIỆC ĐIỀU ƯỚCQUỐC TẾ CÓ HIỆU LỰC
Thực hiện quy định của Luật Ký kết, gia nhập vàthực hiện điều ước quốc tế năm 2005, Bộ Ngoại giao trân trọng thông báo:
Hiệp định giữa Chính phủ nước Cộng hòa xã hội chủnghĩa Việt Nam và Chính phủ Đan Mạch về các thủ tục và điều khoản chung, cácthể chế cấp vốn cho dự án sử dụng Công cụ tài chính Doanh nghiệp Danida dànhcho nước Cộng hòa xã hội chủ nghĩa Việt Nam, ký tại Copenhagen ngày 19 tháng 9năm 2013, có hiệu lực kể từ ngày 19 tháng 9 năm 2013.
Bộ Ngoại giao trân trọng gửi bản sao Hiệp định theoquy định tại Điều 68 của Luật nêu trên.
TL. BỘ TRƯỞNG
BETWEEN THEGOVERNMENT OF THE SOCIALIST REPUBLIC OF VIET NAM AND THE GOVERNMENT OF THE KINGDOMOF DENMARK CONCERNING GENERAL TERMS AND PROCEDURES AND INSTITUTIONALARRANGEMENTS FOR FINANCING PROJECTS USING THE DANIDA BUSINESS FINANCEINSTRUMENT TO THE SOCIALIST REPUBLIC OF VIET NAM
The Government of the Socialist Republic of VietNam and The Government of the Kingdom of Denmark have agreed as follows:
In the present Framework Agreement,
a) The expression "Viet Nam" means theGovernment of the Socialist Republic of Viet Nam
b) The expression "Denmark" means theGovernment of the Kingdom of Denmark
c) The expression "MPI" means theMinistry of Planning and Investment of Viet Nam
d) The expression "MOF" means theMinistry of Finance of Viet Nam
e) The expression "Danida" means theMinistry of Foreign Affairs of Denmark or the Embassy of Denmark in Hanoi
f) The expressions "the parties or bothparties'' mean MPI and Danida
g) Danida Business Finance refers to the financingof loans as part of Denmark's Official Development Assistance.
2. Brief Introduction toDanida Business Finance
Danida Business Finance offers interest free or lowinterest loans, normally with 10 years maturity aimed at financing supplies ofequipment and related services for development projects. The instrument isavailable for Danida's priority countries and is part of the Strategy forDenmark's Development Assistance, where poverty reduction, human rights andgreen growth are key elements.
3. General Objectives
To continue the cooperation between Viet Nam andDenmark, Danida has agreed to make the Danida Business Finance instrumentavailable for development projects in Viet Nam.
4. Financial Terms
Danida Business Finance will be provided inaccordance with OECD's Arrangement on Officially Supported Export Credits.According to the Arrangement, the concessionality level of tied aid forindividual transactions must include a Danish government grant element ofminimum 35 per cent.
Loans will be granted with the following terms,provided the international interest level continues approximately at thepresent level:
• As a standard, loans will be interest free EUR orUSD loans with 10 years maturity after commissioning. 100 per cent of thecontract can be financed;
• For larger projects especially within theenvironmental sector, and where the life span of the project justifies it,loans with 15 years maturity may be considered. Depending on the prevailinglevel of interest rates the loan may carry some interest. 100 per cent of thecontract can be financed;
Danida will pay the following:
• Interest in construction period;
• Interest in repayment period;
• The export premium to Eksport Kredit Fonden (theDanish Export Credit Fund);
• A bank margin of maximum 0.2 per cent p.a.
More detailed information concerning the financialand other terms for Danida Business Finance is available in Danida's"General Conditions for Loan Agreements and the Provision andAdministration of Interest Subsidy under the Mixed Credit Programme forDeveloping Countries" (October 2010), and Danida Business Finance brochurewhich are attached as annex 1 and 2 to this Framework Agreement.
5. Projects Eligible for Financing
Under this Framework Agreement, it will be possibleto finance projects involving a buyer from Viet Nam regardless its ownership.
For projects above SDR 2 million (approx. EUR 2.3million, December 2006) it is in accordance with the OECD Arrangement requiredthat only projects which, with appropriate pricing determined on marketprinciples, lack capacity to cover the projects operation costs and to servicenormal commercial export credit with 10 years maturity are eligible for mixedcredit finance. For projects below SDR 2 million the OECD rules are moreflexible. Projects below' EUR 1 million are not eligible for financing, unlessotherwise agreed between the parties.
Projects involving the production of military orparamilitary equipment, alcoholic beverages and tobacco products are noteligible for financing under this Framework Agreement.
For further information with respect to whichprojects that potentially can be financed, reference is made to theabove-mentioned Danida Business Finance brochure.
6. Project Selection
MPI will select the projects to be financed underthis Framework Agreement and present the projects to Danida during annualmeetings, or on ad hoc basis. The presentation of projects by MPI shouldinclude a brief project outline or a Feasibility Study. Based on this list andon-going communication between Danida and MPI, a mutual selection of projectswill be made. When selected and upon a positive indication from Danidaregarding the eligibility for Danida Business Finance support, the projectswill be included in Danida's pipeline. Danida reserves the right to proposeprojects for financing.
MPI will forward feasibility studies on theprojects to Danida. Alternatively, Danida can finance part of the costs relatedto the preparation of feasibility studies. On the basis of the feasibilitystudy and positive screening by the Danida Programme Committee, Danida willinitiate appraisal of the project. The project will then be submitted toapproval by the Danida Grant Committee. After a commercial contract has beenentered into and the loan agreement has been finalized, Danida may finallyapprove the project for financing.
MPI will ensure that the Government of the SocialistRepublic of Viet Nam endorses projects proposed for Danida Business Financefinancing at the time the request with enclosed project proposal is submittedto Danida for screening and that the availability of local funds as well asloan amount for mixed credits is confirmed at the time project proposals aresubmitted to Danida for appraisal MPI will inform Danida of Viet Nam's decisionof fund revisions (if any) of the projects appraised by Danida before theprojects are submitted to Danida Grant Committees for approval.
Export credits to be subsidised after approval bythe parties will be provided by the Danish commercial banks or by other Danishfinancial institutions acting as Lender. Borrower(s) may be MoF or a buyer witha guarantee from MoF.
8. Lending and On-lending
Loan agreements for each project will be negotiateddirectly between MoF and the Lender. The fees and costs of the Danishcommercial banks will be negotiated case-by-case between the bank acting asLender and MoF. Maximum rates accepted by Danida are management fee of 0.375per cent flat and commitment fee of 0.25 per cent p.a., unless otherwise agreedbetween the parties to this Framework Agreement.
Loan Agreements must comply with Danida's"General Conditions for Loan Agreements and the Provision andAdministration of Interest Subsidy under the Mixed Credit Programme forDeveloping Countries" (October 2010), attached as annex 1 under thisFramework Agreement.
If on-lending is applied, MPI will inform theon-lending margin and possible other financial costs and repayment period toDanida at the time the proposed project is submitted to Danida for appraisal.The on-lending margin charged by the Borrower should be kept to a minimum toensure that the soft element in the loan is used to support the end-user.
9. Procurement Rules andCommercial Contracts
Commercial contracts to be financed with exportcredits subsidised under this Framework Agreement should be based oninternational competitive bidding (ICB), or limited international bidding(LIB). In cases where a sufficient number of Danish suppliers exist, thebidding could be limited to Danish suppliers. The Danish delivery shall becompetitive taking into consideration price, technology and quality. There areno requirements to Danish content of goods and services.
The procurement must be in accordance with Danida's"Rules and Guidelines for Procurement under Danish Mixed Credits, August2007", attached as annex 3, unless otherwise specifically agreed betweenthe parties. The tender evaluation report and the contract documents shalldemonstrate that competitive procurement has taken place, that the process hasbeen carried out observing internationally recognised good procurement practiseas well as Vietnamese legislation, and that the selected bid is competitivewith regard to technology, price and quality. Unless otherwise agreedpre-qualification must be applied and at least 2-3 Danish suppliers must bepre-qualified under the tied Danida Business Finance facility.
For small projects, negotiated contracts (solesource procurement) may on a case-by-case basis be accepted if agreed to byboth parties in advance, and it should be documented that prices arecompetitive and price verification may be required.
Danida will on grant basis provide technicalassistance (TA) to the tendering of projects financed under this FrameworkAgreement. Danida and the project owner will have to agree in writing on theterms and conditions of the TA before Danida appraises the project.
Commercial contracts must follow the FIDIC-formatand comply with Danida's "General Conditions for Approval of CommercialContracts Financed under the Mixed Credit Programme (August 2007)",attached as annex 4 to this Framework Agreement
10. Export Credit Guarantee
An export credit guarantee from Eksport KreditFonden, Danish Export Credit Fund, covering at least 95 per cent of theoutstanding amounts of each loan granted under this Framework Agreement isrequired. The guarantee premium will, as mentioned above, be paid by Danida.
The parties will on a quarterly basis or wheneverdeemed necessary by the parties review progress and discuss a pipeline forprojects to be financed under this Framework Agreement
The parties will once a year undertake a more thoroughconsultation regarding the Danida Business Finance instrument including reviewof progress, agreement on pipeline of projects and any other matter arising.
The parties will agree to a set of AdministrativeProcedures for the administration and implementation of Danida Business Financeactivities in Viet Nam, attached as annex 5. The purpose of the AdministrativeProcedures is to ensure a timely implementation or activities, and a cleardivision of responsibilities and obligations.
Denmark shall not be liable to indemnify any thirdparty in respect of any claim, debt, damage or demand arising out of theimplementation of this Framework Agreement and which may be made against Danidaor its staff.
13. Taxes and Duties
Customs, duties and taxes for projects approved byDanida for financing in 2013 or after will not be exempted from VAT for locallyprocured services and goods procured.
14. Evaluation and Auditing
Danida will inform MPI in advance about any review.MPI will support and provide all necessary documentation for evaluation andauditing of the use of the credits and for study of projects financed withinfive years after their completion. The evaluation will be undertaken by Danidaor by the Danish State Auditors, and may involve site visits. Danida willexchange views with MPI of review conclusion before any official announcement.
Any disputes concerning the interpretation orimplementation of the Framework Agreement shall be settled by negotiationbetween the parties to this agreement.
16. Fraudulent Practices
Denmark or Viet Nam may cancel the implementationof the Framework Agreement, or projects under its execution, if it determinesthat, with respect to the Danish funds:
1) Corrupt or fraudulent practices were engaged inby the representatives of the Borrower or Lender or of the Buyer or Sellerduring procurement or during execution of a contract; and
2) Timely and appropriate action satisfactory toDenmark and Viet Nam to remedy the situation has not taken place.
Firms may be barred from contracts financed withDanish funds, either indefinitely or for a specific period of time if Denmarkdetermines that the firm is engaged in corrupt or fraudulent practices incompeting for or in executing a contract financed with Danish funds.
17. Entry into Force,Alterations and Termination
The Framework Agreement will enter into force whensigned by both Parties and shall remain in force until 31 December 2018. TheAgreement will be automatically extended on annual basis, unless one Partyinforms the other of its decision to terminate it, by means of a writtennotification by giving ninety days' notice before expiry.
Either Party may suggest alterations. Suchsuggestions shall be submitted to the other Party in writing, in the Englishlanguage. Alterations shall enter into force when duly signed by both parties.
Each Party may terminate this Framework Agreementin whole or in part, by giving a ninety days' notice in writing, in the Englishlanguage:
Signed in Copenhagen on 19 September 2013 in twocopies in the English language.
FOR THE GOVERNMENT OF THE SOCIALIST REPUBLIC OF VIET NAM
FOR THE GOVERNMENT OF
ADMINISTRATIVEPROCEDURES FOR DANISH BUSINESS FINANCE SUPPORT
1. Eligible Vietnamese organization submits anapplication for Danida Business Finance support to the Ministry of Planning andInvestment (MPI).
The application letter to MPI should include anofficial request and a project description, both prepared in Vietnamese andEnglish languages. The project description should include detailed informationabout the project size, project background, deliveries (type and contractamount), buyer's organisation, budget, financial set up including guarantor,timetable etc. Project outline should cover the content required by theVietnamese Government's Decree No. 38/2013/ND-CP dated 23 April 2013 onmanagement and utilization of official development assistance (ODA) andconcessional loans of donors.
2. MPI forwards the proposed project for financingby Danida Business Finance to the Embassy of Denmark in Hanoi, includinginformation on the approval of local budgets and loan amount for the projectand the terms of on-lending.
3. Projects proposed for financing are screened bythe Ministry of Foreign Affairs of Denmark (Danida). The Embassy will conveythe result of the screening process to MPI. Danida will either reject theproject or give a preliminary indication to continue project preparations. Ifsufficient information is made available to Danida, screening of a project cannormally be carried out within a period of two months.
When a project is given a positive indicationregarding eligibility for Danida Business Finance support, it will be includedin the pipeline of projects to be appraised by Danida. Danida at this stagewill officially give MPI an indication of support to the feasibility studypreparation and provision of technical assistance (TA) on tendering process.
4. Danida will provide technical support totendering financed by Danida Business Finance. The objectives of the TA are:
- To verify that the project tendered andcontracted is in accordance with the Danida approved Appraisal Report
- To ensure that the tender process is inaccordance with Danida's "Rules and Guidelines for Procurement underDanish Mixed Credits"
- To verify that the signed commercial contract isin accordance with Danida's "General Conditions for Approval of CommercialContracts"
- To provide advice to the buyer during the tenderprocess
5. MPI requests eligible projects to prepareFeasibility studies in English. (According to Guidelines for FeasibilityStudies for Mixed Credit Projects, available on dbfinance.um.dk). The F/Sshould be presented to the competent agencies as stipulated by the Vietnameselaws for
6. When a Feasibility Study has been screened byMPI with an indicative budget, it should be forwarded to the Embassy with arequest for appraisal together with a confirmation that local funds and fundsfor the loan have been approved by the appropriate Vietnamese authorities.
7. Danida arranges for appraisal of the proposedproject. The appraisal team will brief MPI, MOF and Project owner on itspreliminary findings at the end of the mission. An appraisal can normally belaunched within three months after the projects have been screened by Danida.
8. Based on the report prepared by the appraisalteam, MPI will inform Danida of Vietnam's comments, including decision of fundrevisions (if any) for the appraised project, normally within two months afterreceipt of the report.
9. Upon receipt of the final response from MPI, theproject is normally presented to Danida's Grant Committees within two months.The result of Danida's assessment and the revised appraisal report will beconveyed by the Embassy to MPI, MOF and the project owner, including specificconditions for support and information on next steps.
10. The project owner initiates the tenderingprocess of the project in accordance with General Rules and Guidelines forProcurement under Danish Mixed Credits, cf. Article 9 of the FrameworkAgreement.
11. The project owner forwards the tenderdocuments, evaluation reports to Danida for no-objection to move forward withthe tender process. All documents must be in English. Danida will as soon aspossible scrutinise the evaluation report to verify that acceptable competitiveprocurement has taken place ensuring the best bid in terms of quality and prizeis selected.
12. The Project owner initiates contractnegotiations with the selected bidder. When the commercial contract is signedit is forwarded to the Embassy/Danida for approval and the payment terms forMoF's acceptance.
13. Upon contract approval the Ministry of Financeof Vietnam sends request for financing to the Danish lender. Upon receivingrequest for finance from Danish lender, Danida will normally issue finalapproval of financing within one week and inform the Vietnamese side. Danidamust approve the loan agreement.
14. Project implementation.
15. Project owner together with the contractorconduct commissioning, which the independent verificationinstitution/consultant appointed by Danida will verify.
16. Project owner together with the contractorconduct end of defects liability inspection, which the independent verificationinstitute/consultant appointed by Danida will verify.