Decree No. 84/2025/ND-CP dated April 04, 2025 on management, use and operation of maritime infrastructure assets
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GOVERNMENT OF
VIETNAM |
THE SOCIALIST
REPUBLIC OF VIETNAM |
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No: 84/2025/ND-CP |
Hanoi, April 04, 2025 |
DECREE
ON MANAGEMENT, USE AND OPERATION OF MARITIME INFRASTRUCTURE ASSETS
Pursuant to the Law on Government dated February 18, 2025;
Pursuant to the Law on Management and Use of Public Property dated June 21, 2017;
Pursuant to the Law on amendments to Law on Securities, Law on Accounting, Law on Independent Audit, Law on State Budget, Law on Management and Use of Public Property, Law on Tax Administration, Law on Personal Income Tax, Law on National Reserves, and Law on Penalties for Administrative Violations dated November 29, 2024;
Pursuant to the Maritime Code of Vietnam dated November 25, 2015;
At the request of the Minister of Finance;
The Government issues a Decree on management, use, and operation of maritime infrastructure assets.
Chapter I
GENERAL PROVISIONS
Article 1. Scope
1. This Decree provides for the management, use, and operation of maritime infrastructure assets that are invested in and managed by the State, including:
2. This Decree shall not apply to:
a) Maritime infrastructure assets assigned to enterprises that are invested in as state capital at these enterprises. The management, use, operation and reporting on maritime infrastructure assets assigned to the enterprises that are invested in as state capital at these enterprises shall comply with laws on management and use of state capital invested in the enterprise’s manufacturing and business activities, laws on maritime and other relevant laws.
b) Maritime infrastructure assets at people's armed forces. The management, use, operation, and reporting on maritime infrastructure assets at people's armed forces shall comply with laws on management and use of public property at people's armed forces, laws on maritime, and other relevant laws.
c) Maritime infrastructure assets that are managed by other entities (other than those specified in Clause 3 of Article 2 hereof and Points a and b of this Clause) and maritime infrastructure assets invested in and managed by the State but is sold, transferred, and included in the enterprise value upon equitization. The management, use, and operation of maritime infrastructure assets in this case shall comply with laws on maritime and other relevant laws.
Article 2. Regulated entities
1. State maritime regulatory authority.
2. Maritime management authorities include:
a) Central maritime management authority: an organization advising and assisting the Minister of Construction in state management and organizing the enforcement of laws on maritime.
b) Provincial maritime management authority: a maritime advisory body under the People's Committee of a province or centrally affiliated city (hereinafter referred to as the provincial People's Committee).
3. Entities assigned to manage maritime infrastructure assets (hereinafter referred to as the “Infrastructure management entities”) include:
a) Authorities assigned to manage assets are maritime management authorities specified in Point a, Clause 2 of this Article (hereinafter referred to as “central infrastructure management authorities”), Point b of Clause 2 of this Article (hereinafter referred to as “local infrastructure management authorities”).
b) Enterprises assigned to manage assets are wholly State-owned enterprises of the Ministry of Construction that are assigned to manage maritime infrastructure assets (hereinafter referred to as the “infrastructure management enterprises”), including:
Public coastal information service providers of the Ministry of Construction in accordance with the law on maritime;
Public maritime safety assurance service providers of the Ministry of Construction in accordance with the law on maritime.
4. Organizations and enterprises that receive leased or fixed-term transferred operation rights of maritime infrastructure assets in accordance herewith.
5. Other entities related to the management, use, and operation of maritime infrastructure assets.
Article 3. Maritime infrastructure assets
1. Maritime infrastructure assets mean maritime infrastructure works as prescribed by law on maritime and the land, water and sea areas attached to maritime infrastructure (if any), including:
a) Terminals, floating terminals.
b) Offices, service facilities, warehouses, depots, buildings and other auxiliary works in the terminal area.
c) Traffic information system, communication system, electricity and water system in the terminal area.
d) Lighthouses and attached stations; independent light buoy
dd) Floating buoys and markers and their management and operation piers and stations;
e) Vessel traffic service (VTS) system
g) Breakwaters, sand breaks, flow-redirecting revetments, bank-protecting revetments.
h) Navigation channels, pilot boarding areas, phytosanitary inspection area.
i) Portage areas, anchorage, storm shelters in seaport waters;
k) The Vietnam Coastal Information System includes machinery, equipment, housings, structures, and auxiliary works directly serving the operations of the System.
2. Maritime infrastructure assets associated with national defense and security shall be determined as follows:
a) Maritime infrastructure assets associated with national defense shall be determined in accordance with laws on management and protection of national defense works and military zones.
b) Maritime infrastructure assets associated with national security shall be determined in accordance with laws on protection of national security-related important works.
Article 4. Rules for management, use, and operation of maritime infrastructure assets
The management, use and operation of maritime infrastructure assets must comply with rules specified in the Law on management, use of public property, and the following rules:
1. Maritime infrastructure assets are fully reckoned up, accounted for in kind and value; the regimes for asset depreciation calculation and construction maintenance are implemented in accordance with law.
2.
For cases of operation, disposal of a part of each asset, it is necessary to ensure smooth and safe maritime traffic activities and not to affect the management, use and operation of the remaining part of the asset.
3. The assignment, operation and disposal of assets prescribed herein that (i) are related to national defense, must obtain the opinion of the Ministry of National Defense; (ii) are related to national security must obtain the opinion of the Ministry of Public Security; (iii) are not related to national defense and security, shall be determined by the Ministry of Construction, the provincial People's Committee, the maritime management authority, and the infrastructure management authority in the application submitted to the competent authority/person for decision.
4. If the operation and disposal of maritime infrastructure assets prescribed herein affect other related infrastructure assets, opinions from the entity assigned to manage the related infrastructure assets must be obtained, and solutions must be provided to clearly define responsibilities for rectification.
5. The management, use, and operation of maritime infrastructure assets shall be supervised, inspected, and audited in accordance with applicable regulations; any violations of the law on the management, use, and operation of maritime infrastructure assets shall be promptly and strictly handled in accordance with law.
6. The management and use of land, water surface attached to maritime infrastructure assets shall comply with laws on land, the laws on maritime, laws on enterprises, and other relevant laws. For case of repossession of land, water surface attached to maritime infrastructure in accordance with laws on land, the repossession of land attached to assets, recompense, support, resettlement and the handling of land and assets attached to land after appropriation shall comply with laws on land not this Decree.
The use of banks of land, water surface to create capital for maritime infrastructure development shall be carried out in accordance with land laws.
Chapter II
ASSIGNMENT OF MANAGEMENT OF MARITIME INFRASTRUCTURE ASSETS
Article 5. Scope and forms of assignment of management of urban railway infrastructure assets
1. Maritime infrastructure assets assigned to infrastructure management agencies in the form of recording asset increases include:
a) Central infrastructure management authorities are assigned to manage maritime infrastructure assets specified in Points a, b, c, e, g, h and I of Clause 1 of Article 3 hereof under central management.
b) Local infrastructure management authorities are assigned to manage maritime infrastructure assets specified in Points a, b, c, g, h and I of Clause 1 of Article 3 hereof under local management.
2. Maritime infrastructure assets assigned to infrastructure management enterprises that are invested in as state capital at these enterprises (recorded as state capital at these enterprises) include:
a) Maritime infrastructure assets specified in Point d, Point dd of Clause 1 of Article 3 hereof that are assigned to public maritime safety assurance service providers of the Ministry of Construction;
b) Maritime infrastructure assets specified in Point k of Clause 1 of Article 3 hereof that are assigned to public coastal information service providers of the Ministry of Construction;
3. For maritime infrastructure assets eligible for the established all-people ownership that are disposed of in the form of assignment or transfer to the infrastructure management enterprises, agencies specified in clause 1, clause 2 of this Article for management, the authority and procedures for assignment and transfer of assets shall be implemented in accordance with the laws on the disposal of property eligible for the established all-people ownership; it is not required to re-perform the asset handover procedures as prescribed herein.
4. For maritime infrastructure assets that are the result of the implementation process of State-funded project:
a) For investment projects approved by a competent authority or person, if the beneficiary of the asset resulting from the project implementation process is the infrastructure management enterprise/authority specified in clause 1, clause 2 of this Article, after completing the investment, construction and procurement, the investor, project owner, and project management board shall hand over the asset to the beneficiary (infrastructure management enterprise/authority); it is not required to re-perform the asset handover procedures as prescribed herein.
b) For investment projects approved by a competent authority/person, if the beneficiary of the asset resulting from the project implementation process is not the infrastructure management enterprise/authority specified in clause 1, clause 2 of this Article:
If the beneficiary is a state agency, public service provider, agency of the Communist Party of Vietnam, Vietnam Fatherland Front or a socio-political organization (hereinafter referred to as "agency, organization, and unit”), after the beneficiary receives the asset, the asset shall be transferred from the beneficiary to an infrastructure management authority specified in point a, point b of clause 1 of this Article or to the Ministry of Transport or the Provincial People's Committee to hand over the asset to the infrastructure management enterprise specified in Point a, Point b of clause 2 of this Article; the transfer shall be carried out in accordance with Clause 5 of this Article;
If the beneficiary is not an agency, organization, and unit mentioned above, the beneficiary shall manage, use and operate the asset in accordance with the laws on maritime and other relevant laws. If there is a need to transfer the asset to the infrastructure management authority specified in point a, point b of clause 1 of this Article, or to the Ministry of Construction to hand over the asset to an infrastructure management enterprise specified in point a, point b of clause 2 of this Article, the transfer shall be carried in accordance with clause 5 of this Article.
c) For the investment project approved by a competent agency or person, if the beneficiary of the asset resulting from the project implementation process is not determined, the authority and procedures for assigning or transferring maritime infrastructure assets to the infrastructure management enterprise/authority specified in clause 1, clause 2 of this Article shall be implemented in accordance with the regulations on disposal of assets resulting from State-funded projects in the laws on management and use of public property; it is not required to re-perform the asset handover procedures as prescribed herein.
5. For maritime infrastructure assets managed by entities that are not infrastructure management enterprises/authorities specified in Point a and Point b of Clause 1 of this Article for management, if the entities in charge of management wish to transfer the assets to infrastructure management authorities specified in point a, point b of clause 1 of this Article or to the Ministry of Transport to hand it over to infrastructure management enterprise specified in Point a and Point b of Clause 2 of this Article, the authority and procedures for transferring the assets shall comply with regulations of relevant laws; it is not required to re-perform the asset handover procedures as prescribed herein.
In cases where relevant laws do not have provisions on the authority and procedures for asset transfer, the authority and procedures specified in Clause 2 and Clause 3 of Article 20 hereof shall be carried out to decide and implement the asset transfer.
Article 6. Authority to decide assignment of maritime infrastructure assets
1. The Minister of Construction shall decide the transfer of maritime infrastructure assets under central management.
2. The provincial People's Committees shall decide the transfer of maritime infrastructure assets under local management.
Article 7. Procedures for handing over maritime infrastructure assets
1. The Ministry of Construction (for assets under central management) and the Provincial People's Committees (for assets under local management) shall direct the review and statistics of all maritime infrastructure assets managed or temporarily managed by agencies, organizations, and units under their management (including cases where assets are invested in the PPP form and transferred by investors to the State according to regulations without having to carry out procedures for establishing all-people ownership of assets); on that basis, the classification shall be carried out as follows:
a) For maritime infrastructure assets that have been assigned in writing by competent authorities/persons to authorities/enterprises specified in clause 1, clause 2 of Article 5 hereof for management, the authorities/enterprises may continue to manage, use, and operate such assets; it is not required to re-perform the asset handover procedures as prescribed herein.
b) Maritime infrastructure assets managed by authorities or enterprises specified in clause 1, clause 2 of Article 5 hereof without a written asset assignment decision from the competent authorities/persons.
c) Maritime infrastructure assets temporarily assigned to authorities, enterprises specified in point a, point b of clause 1 of Article 5 hereof for management.
d) Maritime infrastructure assets that have been assigned or temporarily assigned to authorities, enterprises specified in point a, point b of clause 1 of Article 5 hereof for management.
dd) Maritime infrastructure assets transferred to the Ministry of Construction in accordance with point b, point c of Clause 4, Clause 5 of Article 5 hereof.
2. Based on the results of the review, statistics and classification of assets as prescribed in clause 1 of this Article, central maritime management authorities (for assets under central management), the local maritime management authorities (for assets under local management) shall take charge and prepare 01 set of application for the transfer of maritime infrastructure asset specified in points b, c, d, and dd of clause 2 of this Article to infrastructure management authorities/enterprises specified in clause 1, clause 2 of Article 5 hereof, and report to the Ministry of Construction (for assets under central management), provincial People's Committees (for assets under local management). The application includes:
a) Application form of the maritime management authority for asset assignment (specifying the recipient and form of asset assignment): Original copy.
b) Inter-sectoral meeting minutes or written opinions on asset assignment and form of asset assignment of: The agency, organization, unit, enterprise currently managing or temporarily managing the asset and their superior management authority (if any); relevant agencies, units of the Ministry of Construction (for assets under central management), relevant local agencies, units (for assets under local management); the authority/enterprise expected to be assigned to manage the asset: original copy;
b) List of assets to be handed over (name of the assets; address; year of putting into use; basic parameters (quantity, volume, length, or area, etc.); gross price, residual value (if any); the value of the asset determined and decided in accordance with clause 3 of this Article for assets assigned to infrastructure management enterprises specified in clause 2 of Article 5 hereof that is recorded as state capital at the enterprise; condition of the assets) prepared by the maritime management authority: Original copy.
d) Legal documents on the asset (Decision on asset assignment, transfer, Minutes of asset handover, receipt or other papers, documents proving the right to manage, use, temporarily manage the asset - if any): duplicate copy.
dd) Other relevant documents (if any): duplicate copy.
3. Determination of the value of maritime infrastructure assets as the basis for determining the value of state capital invested in the enterprise for assets assigned to enterprises that are recorded as state capital at those enterprises:
a) In cases where the asset is purchased, invested in, built, completed, and put into operation within 3 years up to the date of preparing the assignment application, the maritime infrastructure management authority shall determine or take charge and cooperate with the authority/enterprise currently managing, temporarily managing the maritime infrastructure asset in determining the value of that asset as the basis for determining the value of state capital invested in the enterprise as the residual value of the asset on the accounting book. For assets not listed in the accounting book or listed assets that have not calculated the depreciation or have calculated depreciation but not conformance with applicable regulations, the maritime management authority must re-determine the residual value in accordance with applicable regulations as the basis for determining the state capital invested in the enterprise.
b) For cases not covered by point a of this Clause, the maritime management authority shall hire a valuation enterprise to appraise the price of the maritime infrastructure asset. The cost of hiring a valuation enterprise may be paid by the recurrent expenditure budget of the maritime management authority.
Pursuant (i) the asset list and the status of the assets to be assigned, and (ii) valuation results from the valuation enterprise, the maritime infrastructure management authority shall submit documents to the Minister of Construction for a decision on the value of the maritime infrastructure assets as the basis for determining the value of state capital invested in the enterprise. The use of valuation certificates and valuation reports of valuation enterprises shall be carried out in accordance with laws on prices.
4. Within 15 days from the date of receiving the complete application specified in Clause 2 of this Article, the competent authority/person specified in Article 6 hereof shall review and decide the assignment of maritime infrastructure asset under its authority or shall have a written response in case the request for assignment of asset is not appropriate.
5. The decision on assignment of maritime infrastructure assets shall include:
a) Name of the infrastructure management authority/enterprise.
b) List of assets to be assigned (name of the assets; address; year of putting into use; basic parameters (quantity, volume, length, or area, etc.); gross price, residual value (if any); condition of the assets); agency, organization, unit currently managing or temporarily managing the asset. For asset assigned to infrastructure management enterprise that is recorded as state capital at that enterprise, the list of assigned assets shall also include the asset value determined and decided in accordance with clause 3 of this Article.
c) Assignment form:
d) Implementation responsibility.
6. Implementation of Asset assignment decisions for maritime infrastructure assets assigned to infrastructure management authorities:
a) The infrastructure management authority shall manage, use, and operate the asset in accordance herewith, the laws on maritime, and other relevant laws for asset specified in Point b, Point c of Clause 1 of this Article; it is not required to hand over or receive asset as prescribed in Point b of this Clause.
b) The agency, organization, unit, or enterprise currently managing or temporarily managing the asset (Transferring Party) shall hand over the asset to the infrastructure management authority (the Receiving Party) for the asset specified in Point d and Point dd of Clause 1 of this Article; the handover and receipt of the asset are documented in a Minute using Form 01 in the Appendix attached hereto. After receiving the asset, the infrastructure management authority shall manage, use and operate the asset in accordance herewith, the laws on maritime and other relevant laws.
7. Implementation of Asset assignment decisions for maritime infrastructure assets assigned to infrastructure management enterprises that are invested in as state capital at these enterprises:
a) For assets specified in Point b and Point c of Clause 1 of this Article, the infrastructure management enterprises shall comply with Point c of this Clause; it is not required to perform handover or receipt of assets.
b) For assets specified in Point d and Point dd of Clause 1 of this Article, the handover and receipt of assets shall be carried out in accordance with point b of clause 6 of this Article; after receiving the assets, the infrastructure management enterprises shall comply with Point c of this Clause.
c) Infrastructure management enterprises shall report to authorities/persons with competence to carry out procedures for additional investment in charter capital in accordance with law on management and use of state capital invested in production and business activities at enterprises applicable to wholly State-owned enterprises; the value of state capital invested in enterprises is the asset value determined and decided in accordance with Clause 3 of this Article.
8. Enterprises managing assets that are invested in as state capital at these enterprises shall manage, use and operate the assets in accordance with law on management and use of state capital invested in production and business activities at enterprises, law on maritime, other relevant laws and the following regulations:
a) The execution of rights and obligations of the enterprises related to maritime infrastructure assets must ensure the state ownership of the maritime infrastructure assets assigned to the infrastructure management enterprises.
b) The determination of maintenance costs of maritime infrastructure assets (including assets assigned by the State as prescribed herein and assets invested by enterprises using their own capital) shall be carried out in accordance with the law on construction, the law on maritime and other laws related to maintenance costs.
c) Enterprises must conduct reporting and accounting of maritime infrastructure assets in accordance with accounting law and other relevant laws.
d) For maritime works that are no longer needed for maritime purposes, if enterprises voluntarily return the land attached to such works to the State, or if land attached to maritime infrastructure works, work items must be repossessed in accordance with the law on land, the land repossession, recompense, and support when the State repossesses land and disposes of land and assets attached to land after repossession shall be carried out in accordance with the law on land and other relevant laws.
dd) Enterprises shall complete legal documents on land, manage, and use land attached to maritime infrastructure assets in accordance with the law on land, the law on maritime and other relevant laws.
e) Enterprises assigned to manage maritime infrastructure assets invested in as state capital at enterprises are not required to manage, use and operate maritime infrastructure assets as prescribed in Chapter III hereof.
Chapter III
MANAGEMENT, USE AND OPERATION OF MARITIME INFRASTRUCTURE ASSETS ASSIGNED TO INFRASTRUCTURE MANAGEMENT AUTHORITIES
Section 1. DOSSIERS ON MANAGEMENT, ACCOUNTING OF MARITIME INFRASTRUCTURE ASSETS
Article 8. Maritime infrastructure asset management dossier
1. The maritime infrastructure asset management dossier includes:
a) Records related to the formation and changes in maritime infrastructure assets as prescribed herein and other relevant laws; legal records on land, water surface attached to maritime infrastructure assets in cases where competent authorities and persons assign or lease land, water surface in accordance with laws on land (if any).
b) Declaration reports; reports on the management, use and operation of maritime infrastructure assets as prescribed herein.
c) Data in the Database on maritime infrastructure assets as prescribed herein.
2. The infrastructure management authority shall prepare, manage, and store dossiers on asset as prescribed for the dossiers prescribed in Clause 1 of this Article; make reports as prescribed herein.
The responsibility for preparing, managing, and storing records related to investment in the construction, expansion, upgrade, and renovation of maritime infrastructure assets is executed in accordance with the construction laws, laws on railways, and other relevant laws.
Article 9. Accounting of maritime infrastructure assets
1. Maritime infrastructure assets with independent structures or a system consisting of many separate assets linked together to perform one or several specific functions are accounting subjects.
In case a system is assigned to multiple management authorities, the accounting subject is the part of the asset assigned to each authority.
2. The infrastructure management authority shall:
a) Open accounting books and conduct accounting of maritime infrastructure assets in accordance with accounting laws and this Decree.
b) Report on the increase, decrease, and depreciation of maritime infrastructure assets in accordance with law.
3. The gross price and residual value of maritime infrastructure assets are determined according to the following rules:
a) For maritime infrastructure assets that have information on the gross price and remaining value of the asset, the existing value shall be used to record in the accounting books.
b) For maritime infrastructure assets that are newly purchased or invested in, the gross price recorded in the accounting books is the purchase value and construction investment value, the final settlement of which is approved by the competent authority/person according to applicable regulations.
In cases where the purchase and investment value is settled for multiple assets and asset items (not separately for each asset or item), the gross price of each asset or item is allocated according to appropriate criteria (quantity, detailed estimate, proportion according to the market value of the corresponding asset, etc.).
If the asset has been put into use but has not been settled by the competent authority/person, the gross price recorded in the accounting books shall be the provisional gross price. The provisional gross price in this case shall be selected in the following order of priority:
Settlement value for verification;
Proposed settlement value for approval;
Table of finalized value of contract between investor and contractor (A-B final settlement);
Total investment value approved or most recently adjusted;
Estimated value approved or most recently adjusted (in case the project estimate is adjusted).
When the competent authority/person approves the final statement, the infrastructure management authority shall adjust the provisional gross price according to the approved finalized value to adjust the accounting books and perform asset accounting according to applicable regulations.
c) For maritime infrastructure assets received by the infrastructure management authority according to the assignment decision or transfer decision of the competent authority/person, the gross price and residual value of the assets shall be determined based on the gross price and residual value recorded in the Minutes of handover and receipt of assigned or transferred assets.
d) The maritime infrastructure assets that do not have information to determine their value according to Points a, b, and c of this Clause shall be handled as follows:
In case there is an equivalent maritime infrastructure asset (in terms of scale, technical level, and time of putting into use) and its gross price and residual value are listed in the accounting books, the value of the equivalent asset shall be used to determine its value;
In case there is no equivalent maritime infrastructure asset or there is an maritime infrastructure asset but the gross price and residual value of that asset have not been listed in the accounting books, the conventional price decided by the Minister of Transport shall be used as the gross price of the asset;
In case there is no equivalent maritime infrastructure asset or there is an equivalent maritime infrastructure asset but the gross price and residual value of that asset have not been listed in the accounting books, and the conventional price cannot be applied, the infrastructure management authority shall hire a valuation enterprise to carry out valuation of the asset in accordance with laws on prices as a basis for determining the gross price of the asset. The use of valuation certificates and valuation reports of valuation enterprises shall be carried out in accordance with laws on prices. The cost of hiring the valuation enterprise shall be allocated from the state budget in accordance with laws on the state budget.
dd) For maritime infrastructure assets that are found to be in surplus during use, depending on their origin and time of putting into use, the value recorded in the accounting book is determined accordingly in accordance with points a, b, c, and d of this clause.
4. The gross price of maritime infrastructure assets shall be adjusted in the following cases:
a) Re-assess the value of maritime infrastructure assets when conducting a comprehensive inventory as per the decision of the Prime Minister.
b) Upgrading, renovating, and expanding a maritime infrastructure assets by projects approved by competent authorities and persons.
c) Dismantling one or several parts of a maritime infrastructure asset (in case the value of the dismantled part is being accounted for in the gross price of the asset), except for the case of dismantling for replacement during construction maintenance.
d) Installing one or several additional parts of maritime infrastructure asset, except for the case of installing for replacement during construction maintenance.
dd) Losing a portion of the asset or being seriously damaged due to natural disasters, force majeure incidents or other unexpected impacts (except in cases where the asset is repaired according to laws on maritime maintenance or restored through insurance, compensation for damages by relevant organizations and individuals).
5. The value of maritime infrastructure assets specified herein shall be used for accounting, declaration to upload information into the Database on maritime infrastructure assets, and other purposes as prescribed by law.
6. Accounting, management, and depreciation calculation for maritime infrastructure assets shall be carried out in accordance with the regulations of the Minister of Finance.
Section 2. MAINTENANCE OF MARITIME INFRASTRUCTURE WORKS AND MANAGEMENT AND OPERATION DURING UPGRADING, RENOVATION, AND EXPANSION OF ASSETS
Article 10. Maintenance of maritime infrastructure works
1. Maritime infrastructure works must be maintained to ensure normal and safe operation when using and operating assets.
2. The budget for maintenance of maritime infrastructure assets shall be allocated from the state budget in accordance with laws on the state budget, other sources as prescribed by law.
3. Procedures for preparing, approving plan and budget estimates for maintenance of maritime infrastructure assets for cases where such budget is allocated from the state budget shall be carried out in accordance with laws on the state budget, relevant laws.
4. The maintenance of maritime infrastructure works shall be carried out in accordance with laws on maritime, laws on quality management and maintenance of construction works, and other relevant laws.
5. During the maintenance of maritime infrastructure works, any materials recovered from the maintenance shall be disposed of in accordance with the regulations on disposal of materials repossessed from asset liquidation specified herein.
6. For cases of lease, fixed-term transfer of right to operate the maritime infrastructure asset, if the contract stipulates the responsibility of the lessee/the transferee of the asset operation right in maintaining the works, the lessee/the transferee shall perform maintenance in accordance with the law and the signed contract using their own funds.
The disposal of materials repossessed (if any) in this case shall be carried out by the lessee/transferee in accordance with the regulations of relevant laws.
7. Maintenance of maritime infrastructure works in the form of dredging maintenance combined with product salvaging shall be carried out in accordance with the Government's regulations on the management of dredging activities in seaport waters and inland waterway waters.
Article 11. Asset management, operation during implementation of State-funded projects for the upgrade, renovation, expansion of maritime infrastructure assets approved by competent authorities/persons
1. For existing maritime infrastructure assets under State-funded projects for asset upgrade, renovation, and expansion approved by competent authorities, persons (including cases of constructing, upgrading, renovating, and expanding other assets but within projects that involve investing in existing maritime infrastructure assets), the investment in asset upgrade, renovation, and expansion shall be carried out in accordance with the corresponding regulations of laws on state budget, laws on public investment, construction laws, laws on maritime, and other relevant laws.
2. If the investor of the project for asset upgrade, renovation, and expansion is not an infrastructure management authority, based on the investment project approved by the competent authority/person:
a) The Ministry of Construction (for assets under central management), Provincial People's Committee (for assets under local management) shall instruct the infrastructure management authority to temporarily hand over the asset to the investor of the project during the investment period. The temporary handover of assets shall be recorded in a Minute of Handover using the Form 01A attached hereto.
b) During the temporary handover of maritime infrastructure assets to the investor of the project, the infrastructure management authority is responsible for asset management and accounting; the investor of the project shall ensure smooth and safe traffic during the investment period, including maintenance of the asset in cases where the approved project has a budget for maintenance; in this case, no budget for maintenance shall be allocated to the infrastructure management authority during the period of the temporary handover.
c) After the project is completed and put into use, the investor of the project shall hand back the asset and the additional value of the asset from project execution in accordance with law to the infrastructure management authority for management, use, and operation of the asset in accordance with this Decree and relevant laws.
Section 3. OPERATION OF MARITIME INFRASTRUCTURE ASSETS
Article 12. Methods and proceeds from the operation of maritime infrastructure assets
1. Operation methods:
a) The infrastructure management authority directly organizing the operation of maritime infrastructure assets.
b) Lease of the right to operate the maritime infrastructure asset.
c) Fixed-term transfer of right to operate the maritime infrastructure asset.
2. For methods specified in points b and c of clause 1 of this Article that require hiring consultants for preparing an Asset Operation Plan, the consulting fees for preparing the Plan shall be advanced from the recurrent expenditure budget of the infrastructure management authority and deducted from the revenue obtained from asset operation; if there is no proceeds obtained from asset operation, the recurrent expenditure budget of the infrastructure management authority shall be used.
3. Proceeds from the operation of maritime infrastructure assets include:
a) Fees and charges as prescribed by the laws on fees and charges.
b) Proceeds obtained from maritime infrastructure service charges and other proceeds related to the service provision as prescribed by law.
c) Proceeds from lease, fixed-term transfer of the right to operate the maritime infrastructure assets.
d) Other proceeds (if any) as stipulated by the laws.
4. During the management, use, and operation of maritime infrastructure assets, in cases of constructing, installing telecommunications works on maritime infrastructure assets, the construction and installation shall be carried out in accordance with the telecommunications law; it is not required to prepare, approve an operation plan, and carry out asset operation as regulated herein; the proceeds from allowing construction, installation of telecommunications works on maritime infrastructure assets shall be managed and used in accordance with point b of clause 1 of Article 17 hereof.
5. In cases of transferring the right to operate, manage maritime infrastructure assets under a Operation - Management Contract (O&M), during the contract implementation period, the transfer of the right to operate, manage maritime infrastructure assets shall be carried out in accordance with the PPP laws; it is not required to prepare, approve an operation scheme, and carry out asset operation as regulated herein.
Article 13. Operation of maritime infrastructure assets directly organized by infrastructure management authorities
1. The infrastructure management authorities shall directly organize the operation of maritime infrastructure assets by providing maritime infrastructure asset services and other services related to maritime infrastructure assets to organizations and individuals in accordance with maritime law and relevant laws.
The infrastructure management authorities shall directly organize the operation of maritime infrastructure assets in the following cases:
a) Operation of maritime infrastructure assets associated with national defense and security.
b) Operation of maritime infrastructure assets not specified in Point a of this Clause that do not generate proceeds or generate proceeds but not from the lease or fixed-term transfer of the right to operate the maritime infrastructure assets.
2. Before asset operation in the case specified in Point a, Clause 1 of this Article, an Asset Operation Scheme must be prepared and submitted to the competent authority/person for approval as prescribed in Clause 3 of this Article.
For asset operation in the case specified in Point b of Clause 1 of this Article, it is not required to prepare and approve an Asset Operation Scheme.
3. The Scheme for operating maritime infrastructure assets shall be prepared and approved in accordance with Point a of Clause 1 of this Article.
a) The Prime Minister shall approve the Scheme for operation of maritime infrastructure assets associated with national defense and security.
b) The infrastructure management authority shall prepare and submit 01 application for approval of the Asset Operation Scheme to the Ministry of Construction (for assets managed by central infrastructure management authorities) or the Provincial People's Committee (for assets managed by local infrastructure management authorities). The application includes:
An application form from the infrastructure management authority for approval of the Scheme: original copy;
Asset Operation Scheme prepared by the infrastructure management authority using the Form 02A specified in the Appendix attached hereto: original copy;
Opinions of relevant agencies (if any): duplicate copy;
Other relevant documents (if any): duplicate copy.
c) Within 30 days from the date of receiving the complete application specified in Point b of this Clause, the Ministry of Construction (for assets under central management) and the Provincial People's Committee (for assets under local management) shall collect opinions from relevant agencies and prepare and submit 01 application to the Prime Minister for review and approval of the Scheme. The application includes:
The application form from the Ministry of Construction, the Provincial People's Committee for approval of the Scheme together with the draft Decision of the Prime Minister on the approval of the Scheme: original copy;
Asset Operation Scheme prepared by the infrastructure management authority using the Form 02A specified in the Appendix attached hereto after completion: original copy;
The form of consolidation, explanation, and receipt of opinions from relevant agencies prepared by the Ministry of Construction/the Provincial People’s Committee: original copy;
Opinions of relevant agencies (if any): duplicate copy;
Documents specified in point b of this clause: duplicate copy.
4. The main contents of the Decision on approval of the Asset Operation Scheme include:
a) Name of the infrastructure management authority.
b) List of assets to be operated (name of the assets; address; year of putting into use; basic parameters (quantity, volume, length, or area, etc.); gross price, residual value; condition of the assets);
c) Operation method: The infrastructure management authority directly organizing the operation.
d) Asset operation duration (if any);
dd) Powers, responsibilities of the maritime management authority;
e) Rights, obligations of infrastructure management authority.
g) Management and use of proceeds from asset operation;
h) Implementation.
5. The infrastructure management authority shall provide services related to maritime infrastructure assets and other services to organizations and individuals in accordance with maritime law and relevant laws.
6. During the operation of maritime infrastructure assets, any materials repossessed shall be disposed of in accordance with the regulations on disposal of materials repossessed from asset liquidation herein.
Article 14. Lease of the right to operate the maritime infrastructure assets
1. Lease of the right to operate a maritime infrastructure asset means the act of the State transferring the right to operate a maritime infrastructure asset to an organization under contract for a fixed term to receive a corresponding amount of money.
2. The scope of the maritime infrastructure asset to be leased is the existing maritime infrastructure asset or part of it.
3. The right to operate the maritime infrastructure asset shall not be leased in the following cases:
a) Maritime infrastructure assets associated with national defense and security.
b) Maritime infrastructure assets, the operation of which does not generate proceeds.
c) Maritime infrastructure assets falling under cases specified in clause 1, clause 2 of Article 15 hereof.
4. The lease term for the right to operate the maritime infrastructure asset shall be specified under contract in an appropriate manner for each maritime infrastructure asset or part thereof and shall be approved by the competent authority/person specified in clause 5 of this Article in the Decision approving the Scheme for leasing the asset operation right.
5. The authority to approve the Scheme for leasing the right to operate the maritime infrastructure assets:
a) The Prime Minister shall approve the Scheme for leasing the right to operate the maritime infrastructure assets formed from projects invested in by the Prime Minister.
b) The Minister of Construction shall approve the Scheme for leasing the right to operate the maritime infrastructure assets managed by the central infrastructure management authority, except for the case specified in Point a of this Clause.
b) The Provincial People's Council shall approve or grant power to approve the Scheme for leasing the right to operate the maritime infrastructure assets managed by the local infrastructure management authority, except for the case specified in Point a of this Clause.
6. The preparation, approval of the Scheme for leasing the right to operate the maritime infrastructure assets under the approval authority of the competent authorities/persons specified in Point b of Clause 5 of this Article:
a) The infrastructure management authority shall prepare and submit 01 application for approval of the Scheme for leasing the asset operation right to the Ministry of Construction (for assets managed by central infrastructure management authorities) or the Provincial People's Committee (for assets managed by local infrastructure management authorities). The application includes:
An application form from the infrastructure management authority for approval of the Scheme: original copy;
Scheme for leasing the asset operation right prepared by the infrastructure management authority using the Form 02B specified in the Appendix attached hereto: original copy;
Opinions of relevant agencies (if any): duplicate copy;
Other relevant documents (if any): duplicate copy.
b) Within 15 days from the date of receiving the complete application specified in point a of this clause, the provincial People's Committee shall review and approve the Scheme for leasing the right to operate the maritime infrastructure asset or shall have a written response in case the request is not appropriate.
7. The preparation, approval of the Scheme for leasing the right to operate the maritime infrastructure assets under the approval authority of the Prime Minister:
a) The preparation and submission of application for approval of the Scheme for leasing the asset operation right to the Ministry of Construction (for assets managed by central infrastructure management authorities) or to the Provincial People's Committee (for assets managed by local infrastructure management authorities) shall comply with regulations specified in point a of clause 6 of this Article.
b) Within 30 days from the date of receiving the complete application specified in Point a of this Clause, the Ministry of Construction (for assets under central management) and the Provincial People's Committee (for assets under local management) shall collect opinions from relevant agencies and prepare and submit 01 application to the Prime Minister for review and approval of the Scheme. The application includes:
The application form from the Ministry of Construction, the Provincial People's Committee for approval of the Scheme together with the draft Decision of the Prime Minister on the approval of the Scheme: original copy;
Scheme for leasing the asset operation right prepared by the infrastructure management authority using the Form 02B specified in the Appendix attached hereto after completion: original copy;
The form of consolidation, explanation, and receipt of opinions from relevant agencies prepared by the Ministry of Construction/the Provincial People's Committee: original copy;
Opinions of relevant agencies (if any): duplicate copy;
Documents specified in point a of clause 6 of this Article: duplicate copy.
8. The main contents of the Decision on approval of the Scheme for leasing the asset operation right include:
a) Name of the infrastructure management authority.
b) List of assets to be leased (name of the assets; address; year of putting into use; basic parameters (quantity, volume, length, or area, etc.); gross price, residual value; condition of the assets);
c) Lease term of asset operation right.
d) Method of lease of asset operation right: Auction.
dd) Conditions for organizations to participate in the auction for leasing the asset operation right.
e) Method of payment of rent of asset operation right (annual payment or one-time payment for the entire lease term) that is used as ground for determining the starting price in the auction for leasing the asset operation right.
g) The deadline for payment of rent of asset operation right.
h) Management and use of proceeds from leasing the asset operation right.
i) Powers, responsibilities of the maritime management authority.
k) Rights, obligations of the inland waterway regulatory authority.
i) Implementation.
9. Pursuant to the Decision approving the Scheme for leasing the right to operate the maritime infrastructure assets of the competent authority/person:
a) The infrastructure management authority shall determine and submit the starting rent of the asset operation right to competent authority/person for approval in accordance with Article 16 hereof
b) The infrastructure management authority shall organize the auction for leasing of the asset operation right in accordance with laws on property auction; fully supervise the process of organizing the auction and performing rights, obligations of other individuals having assets auctioned in accordance with Law on Property Auction.
c) In addition to the conditions stipulated in the laws on property auctions (except for cases of leasing the right to operate the maritime infrastructure assets that are technical infrastructure works (such as power lines, cables, pipelines), advertising billboards, and other structures installed in the maritime infrastructure, and maritime safety corridors in accordance with the regulations of the laws on maritime), organizations participating in the auction for leasing the asset operation right must also meet the following conditions:
Have functions, tasks, or business lines according to the Decision of establishment, Decision on organization and operation, Decision regulating functions, tasks, powers and organizational structure or Business Registration Certificate/Enterprise Registration Certificate that are appropriate for managing and operating maritime infrastructure assets in the list of leased operation rights;
Have the experience, capacity for management and operation of similar maritime works for a minimum of 02 years up to the time of submitting applications for participation in the auction;
Have financial capacity demonstrated through minimum pre-tax revenue and profit targets for the last 02 consecutive years according to the audited Financial statements (for enterprises) or according to the appraised, approved Final statements (for public service providers) as regulated. The infrastructure management authority shall determine specific pre-tax revenue and profit targets to include in the Scheme for leasing the asset operation right, which shall then be submitted to the competent authority/person for approval.
10. Conclusion of the lease contract of the right to operate the maritime infrastructure asset and attached appendix (if any). The lease contract of the right to operate the maritime infrastructure asset signed between the infrastructure management authority and the successful bidder shall include the following main contents:
a) Information of the Lessor (infrastructure management authority).
b) Information of the Lessee (successful bidder).
c) List of assets to be leased (name of the assets; address; year of putting into use; basic parameters (quantity, volume, length, or area, etc.); gross price, residual value; condition of the assets);
d) Lease term of asset operation right.
dd) Rent payable for asset operation right, including:
Fixed rent determined by the hammer price;
Floating rent determined in accordance with Point b of Clause 1 of Article 16 hereof.
e) Form and deadline for rent payment of asset operation right.
The fixed rent may be paid annually or paid all at once for the entire lease term. Whether the rent will be paid annually or paid all at once for the entire lease term must be determined during the auction.
For cases of annual payment of rent in up to 2 installments: The 1st installment, which is at least 50% of the rent, shall be paid no later than June 30; the 2nd installment shall be paid no later than December 31. For cases of lump-sum payment of rent for the entire lease term, payment may be made in up to 02 installments within 90 days from the date of signing the contract, where: the 1st installment which is at least 50% of the rent shall be paid within 30 days from the date of signing the contract; in case the rent is over VND 1.000 billion, payment may be made in up to 03 installments within 12 months from the date of signing the contract, where: the 1st installment, which is at least 40% of the rent, shall be paid within 60 days from the date of signing the contract, and the 2nd installment, which is at least 30% of the rent, within 120 days from the date of signing the contract.
For floating rent specified in Point b of Clause 1 of Article 16 hereto, they shall be paid annually in the following year and within 10 days from the date the Financial Statement is audited (for enterprises) or Final Statement report is approved, appraised (for public service providers). If at the end of the lease term, the financial statement of the last year has not been audited (for enterprises) or the Final statement report has not been approved, appraised (for public service providers) as regulated, the payable amount for the last year or for the remaining months in accordance with the actual lease term shall be based on the actual revenue determined by the Lessee and the Lessor but not less than the corresponding rent of the year before the last year.
g) Make a deposit or guarantee for contract performance security (in addition to the rent specified in the contract):
For cases of making a deposit for contract performance security, the Lessee shall make a deposit into a blocked account at a credit institution. The deadline for making a deposit into the blocked account is 15 days from the date the contract is signed. The deposit period shall correspond with the lease term of asset operation right. The deposit shall at least equal to the average fixed rent of 01 year according to the auction winning price (the fixed rent that is the hammer price for the entire lease term divided by (:) the number of years of leasing the operation right) applied to both lump-sum payment and annual payment.
The deposit is used to cover the Lessee’s unfulfilled obligations (including obligations arising from breach of contract related to the handover of asset to the Lessor); the remaining amount (if any) shall handled in accordance with the civil law.
In case of carrying out guarantee for contract performance security, the bank guarantee shall be carried in accordance with the civil law, law on credit institutions, banking law and relevant laws. The Guarantor shall perform financial obligations on behalf of the Lessee (Obligor) when the Obligor fails to perform or does not fully perform its committed obligations to the Lessor (including obligations arising from breach of contract related to the handover of asset to the Lessor).
h) Responsibilities, technical maintenance requirements for the maritime infrastructure works, and other necessary contents related to maintenance.
i) Deadline for the Lessor to hand over the asset operation right to the Lessee; deadline for the Lessee to return the asset operation right to the Lessor.
k) Conditions for contract termination.
l) Rights and obligations of the parties.
m) Regulations on handling contract breaches and contract disputes in accordance with the civil law and relevant laws, which specify the obligations that the Lessee must perform if the Lessee violates the regulations on handing the asset back to the Lessor.
n) Regulations on handling of cases where State-funded projects for upgrades, renovations, or expansions of assets approved by the competent authority/person occur within the lease term.
The signed lease contract of the right to operate the maritime infrastructure asset and the attached appendices (if any) are sent to the escrow account holder as regulated in point a of clause 2 of Article 17 hereof for monitoring and managing the proceeds from asset operation.
11. Rights of the Lessee:
a) Provide maritime infrastructure asset services and other services related to maritime infrastructure assets in accordance with the law and the signed contract.
b) Determine the method, measures for asset operation ensuring compliance with laws on maritime and the signed contract.
c) Receive legal protection of rights and interests by the State; file complaints, initiate lawsuits in accordance with the law if lawful rights and interests are infringed upon.
d) Collect maritime infrastructure asset service charges and other proceeds related to service provision according to law and the signed contract.
dd) Repair, renovate, upgrade, and add functions to the leased asset using Lessee's funds to serve management, operation purposes, if approved by the Ministry of Construction, Provincial People's Committees. After the contract ends, the Lessee must return the asset in its original condition, including any work items that are upgraded, renovated, or added functions (if any), to the Lessor without reimbursement.
e) Other rights as stipulated by law and the signed contract.
12. Obligations of the Lessee:
a) Protect the leased asset (including land and water surface attached with the works and work items); prevent encroachment or illegal use of asset and other violations as prescribed by law.
In case a construction incident occurs, the Lessee shall promptly notify the Lessor to take measures to handle such incident in accordance with the maritime law and other relevant laws.
b) Use and operate the asset for the right purpose and tasks of the asset; do not change the use purpose, transfer, sell, donate, contribute capital, or mortgage the asset or use it as security for performance of other civil obligations.
c) Perform maintenance of the works belonging to the asset in accordance with the signed contract and law.
d) Pay the rent of the asset operation right in full, on time as stipulated; in case of late payment, the Lessee must pay a contractual penalty equivalent to the late payment amount determined by tax administration laws.
dd) Annually, report the revenue from operating the leased asset along with the audited Financial Statements (for enterprises) or the Final statement report has not been approved, appraised (for public service providers), to the Lessor.
e) Be put under inspection, supervision of the Lessor; resolve any arising issues with the Lessor (if any).
g) Return the asset at the end of the lease term and in cases as specified in clauses 16, 17 of this Article.
h) Periodically or unexpectedly, as per the contract requirements, inform the Lessor about the asset condition to ensure safe and smooth maritime operations.
i) Fulfill other obligations as per the signed contract and law.
13. The infrastructure management authority, the maritime management authority, shall inspect and supervise the implementation of the Scheme for leasing the right to operate the maritime infrastructure asset on a regular basis, fulfill obligations and responsibilities in accordance with law; promptly handle violations, issues that arise under their jurisdiction, or report to the competent authority for resolution as per the law.
14. Proceeds from leasing the right to operate the maritime infrastructure assets are managed, used as per the regulations in Article 17 hereof.
15. Upon the expiration of the lease term for the right to operate the maritime infrastructure asset in accordance with the contract, the Lessee shall:
a) Transfer back the asset operation right to the Lessor at the end date of the contract's term or the end of any extended term stipulated in Article 18 hereof (if any), even if the contract finalization is not completed, or the asset is not returned to the Lessor.
b) Cooperate with the Lessor in conducting inventory, determining the condition of the assets; the inventory, determination of the condition of the assets must be documented.
c) Rectify any damages (if any) to the asset.
d) Cooperate with the Lessor in contract finalization as per regulations after rectifying any damages (if any) to the asset and completing the rent payment for the asset operation right for which the Lessee has provided written commitment that the asset is not under seizure or mortgage or used to fulfill other debt obligations.
dd) Return the asset to the Lessor.
e) Receive the specified deposit amount as per point g of clause 10 of this Article. If the Lessee has not completed the rent payment for the asset operation right at the end of the lease term, the deposit amount shall be used to offset the obligations that the Lessee must pay, with any remaining amount (if any) handled as per civil laws.
16. Upon the expiration of the lease term for the right to operate a maritime infrastructure asset in accordance with the contract, the Lessor shall:
a) Accept, manage, use, and operate the asset as per the regulations hereof from the moment the Lessee transfers back the asset operation right as per point a of Article 15 hereof.
b) Perform asset maintenance as per the regulations hereof from the moment the Lessee transfers back the asset operation right as per point a of this clause (excluding the time when the Lessee rectifies asset damages as per regulations).
17. In case of force majeure or if the State repossesses land, water surface attached to maritime railway infrastructure assets for national defense, security, and socio-economic development purposes in the public interest according to land laws before the lease term expires according to the contract, the parties shall terminate the contract prematurely. The Lessee shall be refunded the corresponding amount for the remaining time (if any) of the paid rent according to the contract and the deposit amount as specified in point g of clause 10 of this Article; the Lessor shall take charge and cooperate with the Lessee in determining and submitting the refundable portion for the Lessee (if any) to the Minister of Construction, the Provincial People's Committee for approval; the refund shall be allocated to the state budget recurrent expenditure estimate of the Lessor for implementation; the refund procedure shall be carried out as per state budget laws. Other contents shall follow the regulations of clauses 15 and 16 of this Article.
18. Handling of contract breaches, resolution of contract disputes shall comply with signed contracts, civil laws and other related laws. For cases of early termination due to contract breaches, contract disputes, the termination procedures shall be carried out as stipulated in clauses 15 and 16 of this Article.
19. For State-funded projects for upgrades, renovations, or expansions of assets approved by the competent authority/person within the lease term, the infrastructure management authority shall implement the corresponding regulations of state budget laws, public investment laws, maritime laws, and related laws. The Lessee shall be refunded the corresponding amount for the rent paid according to the contract (or shall not have to pay annual rent) due to the absence of income during the asset upgrade, renovation, and expansion period, or have the contract time extended corresponding to the time required to hand over the asset to the infrastructure management authority for the upgrade, renovation, or expansion. The Lessor shall take charge, cooperate with the Lessee in the determination of the refundable portion to the Lessee (if any) or the extension of the corresponding contract term, and submit to the Minister of Construction, the Provincial People's Committee for approval. The refund shall be allocated to the state budget recurrent expenditure estimate of the Lessor for implementation; the refund procedure shall be carried out as per state budget laws. Other contents shall follow the regulations of clauses 15 and 16 of this Article.
Article 15. Fixed-term transfer of right to operate the maritime infrastructure asset
1. Fixed-term transfer of the right to operate the maritime infrastructure asset is a case where the State transfers the asset operation right to enterprises for a fixed term linked to investment in upgrading, expanding the existing maritime infrastructure asset as per projects approved by the competent authority/person to receive a corresponding amount as per the contract.
2. The scope of maritime infrastructure assets to be transferred can be the existing maritime infrastructure assets or part of it under an investment project for asset upgrade and expansion approved by the competent authority/person.
3. The right to operate the maritime infrastructure asset that is associated with national defense and national security or that does not generate proceeds from operation is not eligible to be transferred for a fixed term.
4. The transfer term for the right to operate the maritime infrastructure asset shall be specified under contract in an appropriate manner for each maritime infrastructure asset or part thereof and shall be approved by the competent authority/person specified in clause 5 of this Article in the Decision approving the Scheme for fixed-term transfer of the asset operation right.
5. The authority to approve the Scheme for fixed-term transfer of the right to operate the maritime infrastructure assets:
a) The Minister of Construction shall approve the Scheme for fixed-term transfer of the right to operate the maritime infrastructure asset managed by the central infrastructure management authority.
b) The Provincial People's Council shall approve or grant power to approve Scheme for fixed-term transfer of the right to operate the maritime infrastructure asset managed by the local infrastructure management authority.
6. Preparation, approval of the Scheme for fixed-term transfer of the right to operate the maritime infrastructure assets under the approval authority of the competent authorities/persons specified in Point a and Point b of Clause 5 of this Article are carried out as stipulated in clause 6 of Article 14 hereof. The Scheme for fixed-term transfer of the asset operation right shall be prepared using the Form 02C specified in the Appendix attached hereto.
7. The main contents of the Decision on approval of the Scheme for fixed-term transfer of the asset operation right include:
a) Name of the infrastructure management authority.
b) List of assets to be transferred for a fixed term (name of the assets; address; year of putting into use; basic parameters (quantity, volume, length, or area, etc.); gross price, residual value; condition of the assets);
c) Basic content of the Project for investment in upgrading and expanding the asset approved by the competent authority/person.
d) Transfer term.
dd) Method of fixed-term transfer of the asset operation right: Auction.
e) Conditions for enterprises participating in the auction for the fixed-term transfer of the asset operation right.
g) Method, deadline for payment of the fixed-term transfer of the asset operation right.
h) Powers, responsibilities of the maritime management authority;
i) Rights, obligations of the infrastructure management authority.
k) Management and use of proceeds from fixed-term transfer of the asset operation right.
i) Implementation.
8. Pursuant to the Decision approving the Scheme for fixed-term transfer of the right to operate the maritime infrastructure assets of the competent authority/person:
a) The infrastructure management authority shall determine the starting price for the fixed-term transfer of the asset operation right in accordance with Article 16 hereof.
b) The infrastructure management authority shall organize the auctions for fixed-term transfer of the asset operation right in accordance with laws on property auction; fully supervise the process of organizing the auction and performing rights, obligations of other individuals having assets auctioned in accordance with the Law on Property Auction.
c) Enterprises participating in the auction for fixed-term transfer of the asset operation right must meet the conditions specified in laws on property auction and the following conditions:
Engage in a business line stated on the Business registration certificate/Certificate of Enterprise Registration that is suitable for managing and operating the maritime infrastructure asset listed for the fixed-term transfer of the asset operation right.
Have the experience, capacity for management and operation of similar maritime works for a minimum of 02 years up to the time of submitting applications for participation in the auction;
Have financial capacity demonstrated through minimum pre-tax revenue and profit target for the last 02 consecutive years according to the audited Financial statements of the enterprise as prescribed. The infrastructure management authority shall determine and submit specific pre-tax revenue and profit targets to include in the Scheme for fixed-term transfer of the asset operation right to the competent authority/person for approval;
The minimum owner’s equity ratio of the enterprise must be at least 15% of the total investment of the investment project to upgrade, expand the maritime infrastructure asset approved by the competent authority/person.
9. Conclusion of the fixed-term transfer contract of the right to operate the maritime infrastructure assets and attached appendix (if any). The contract for fixed-term transfer of the right to operate the maritime infrastructure assets signed between the infrastructure management authority and the successful bidder, shall include the following main contents:
a) Information of the Transferor (infrastructure management authority).
b) Information of the Transferee (successful bidder).
c) List of assets to be transferred for a fixed term (name of the assets; address; year of putting into use; basic parameters (quantity, volume, length, or area, etc.); gross price, residual value; condition of the assets);
d) Transfer term.
dd) Revenue from asset operation in the starting price schemes for auction (hereinafter referred to as reconciliation revenue).
e) Contract value (according to hammer price).
g) Deadline for payment of the fixed-term transfer (transfer value) of the asset operation right.
The transfer price may be paid in up to 02 installments within 90 days from the date of signing the Contract, where: the 1st installment, which is at least 50% of the price, shall be paid within 30 days from the date of signing the contract; in case the price is over VND 1.000 billion, payment may be made in up to 03 installments within 12 months from the date of signing the contract, where: the 1st installment, which is at least 40% of the price, shall be paid within 60 days from the date of signing the contract, and the 2nd installment, which is at least 30% of the price, within 120 days from the date of signing the contract.
h) Making a deposit or guarantee for contract performance security (in addition to the transfer price specified in the contract):
For cases of making a deposit for contract performance security, the deposit amount is equal to 5% of the total transfer price that the transferee deposits into a blocked account at a credit institution. The deadline for making a deposit into the blocked account is 15 days from the date the contract is signed. The deposit period shall correspond with the transfer term of asset operation rights. The deposit amount is used to offset the Transferee’s unfulfilled obligations (including obligations arising from breach of contract related to the handover of assets to the Transferor); any remaining amount shall be handled in accordance with civil law.
In case of carrying out guarantee for contract performance security, the bank guarantee shall be carried in accordance with the civil law, law on credit institutions, banking law and other relevant laws. The Guarantor shall perform financial obligations on behalf of the Transferee (Obligor) when the Obligor fails to perform or does not fully perform its committed obligations to the Transferor (including obligations arising from breach of contract related to the handover of asset to the Transferor).
i) Responsibilities for carrying out investment projects for upgrading, renovating and expanding maritime infrastructure assets; responsibilities, technical requirements for asset maintenance and other necessary contents related to maintenance.
k) Deadline for the Transferor to transfer the asset operation right to the Transferee; deadline for the Transferee to return the asset operation right to the Transferor.
l) Handling of cases where the actual revenue from operation significantly fluctuates compared to the reconciliation revenue:
Annually, if the actual revenue from operating the transferred asset (in accordance with audited Financial Statements as prescribed) exceeds the reconciliation revenue by 125% or more, the Transferee must make an additional payment of 50% of the additional revenue above 125% into an escrow account as regulated in point a of clause 3 of Article 17 hereof; wherein, the reconciliation revenue is the revenue from asset operation of the corresponding year of the lease term in the starting price scheme for auction;
The Transferor and Transferee shall rely on the audited Financial Statements to determine the additional amount that the Transferee must pay (if any) into the escrow account, based on which the transferor shall inform the competent authority/person approving the Scheme for fixed-term transfer of the asset operation right as stipulated in clause 5 of this Article, the escrow account holder as regulated in point a of Article 17 hereof, and the transferee for monitoring, collecting, transferring, and managing the amount. The time limit for determination, notification, and deposit into the escrow account is within 30 days from the date of receiving the notification from the Transferor, with the latest deadline being October 31 of the following year related to the year of additional revenue occurrence; particularly, in the final year, the payment must be made before the contract is settled.
m) Conditions for contract termination.
n) Rights and obligations of the parties.
o) Regulations on handling contract breaches and contract disputes in accordance with the civil law and other relevant laws, which specify the obligations that the Transferee must perform if the Transferee violates the regulations on handing the asset back to the Transferor.
The signed contract for fixed-term transfer of the right to operate the maritime infrastructure assets and the attached appendices (if any) are sent to the escrow account holder as regulated in point a of clause 2 of Article 17 hereof for monitoring and managing the proceeds from asset operation.
10. Rights of the Transferee:
a) Provide maritime infrastructure asset services and other services related to maritime infrastructure assets in accordance with law and the signed contract.
b) Determine the method, measures for asset operation ensuring compliance with laws on maritime and the signed contract.
c) Receive legal protection of rights and interests by the State; file complaints, initiate lawsuits in accordance with law if lawful rights and interests are infringed upon.
d) Receive incentive policies, investment incentives according to laws on investment and relevant laws.
dd) Mortgage the asset invested by the Transferee and the right to operate the asset in the remaining time of term according to civil laws and relevant laws.
e) Collect maritime infrastructure asset service charges and charges from other services related to maritime infrastructure asset service according to law and the signed contract.
g) Other rights as stipulated by law and the signed contract.
11. Obligations of the Transferee:
a) Protect the asset to be transferred for a fixed term (including land, water surface attached to the works, work items); prevent encroachment or illegal use of asset and other violations in accordance with the law
In case a construction incident occurs, the Transferee shall promptly inform the Transferor to take measures in accordance with laws on maritime and other relevant laws.
b) Use and operate the asset for the right purpose and tasks of the work; do not change the use purpose, transfer, sell, donate, contribute capital, mortgage the asset or use the asset transferred for a fixed term.
c) Invest in projects for upgrading and expanding asset approved by competent authorities/persons.
d) Perform the obligations prescribed in Points c, d, dd, e, g, h and i of Clause 12 of Article 14 hereof.
12. The infrastructure management authority, the maritime management authority, shall inspect and supervise the implementation of the Scheme for fixed-term transfer of the right to operate the maritime infrastructure assets approved by competent authority/person on a regular basis, execute rights and obligations in accordance with law; promptly handle violations, issues that arise under their jurisdiction, or report to the competent authority for resolution as per the law.
13. Proceeds from fixed-term transfers of the right to operate the maritime infrastructure assets are managed, used as per the regulations in Article 17 hereof.
14. At the end of the term of the transfer of the asset operation right under the contract:
a) The Transferee shall implement the regulations of Clause 15 of Article 14 hereof.
b) The Transferor shall implement the regulations of Clause 16 of Article 14 hereof.
15. In case of force majeure or if the State repossesses land, water surface attached to maritime railway infrastructure assets for national defense, security, and socio-economic development purposes in the public interest according to land laws before the transfer term expires according to the contract, the parties shall terminate the contract prematurely.
Based on the investment progress of the project approved by the competent authority, the actual construction work that has been completed, and the transferred operation rights value already paid for the remaining time as per the contract, the transferee shall be refunded the corresponding amount for the remaining time (if any) as per the contract and the deposit as specified in point h of Article 9 hereof; the Transferor shall take charge and cooperate with the Transferee in determining and presenting the refundable portion for the Transferee (if any) to the authority, person with competent approving the Scheme for fixed-term transfer of the asset operation right as stipulated in clause 5 of this Article for approval; the refund shall be allocated to the state budget regular expenditure of the Transferor for implementation; the refund procedure shall be carried out as per state budget laws. Other contents shall comply with the regulations of clause 14 of this Article.
16. Contract breaches, contract disputes shall be handled in accordance with the signed contract, civil laws, and relevant laws. For cases of early termination due to contract breaches, contract disputes, the termination procedures shall be carried out as stipulated in clause 14 of this Article.
Article 16. Rent, fixed-term transfer price of the right to operate the maritime infrastructure asset
1. The rent of the right to operate the maritime infrastructure asset is the amount of money that the organization renting the asset operation right must pay as per the signed contract including fixed rent and floating rent. Where:
a) The fixed rent is the hammer price of the auction for lease of the right to operate the maritime infrastructure asset. The fixed rent may be paid annually or paid once for the entire lease term. Whether the fixed rent will be paid annually or paid once for the entire lease term must be determined during the auction.
For cases of annual payment, the fixed rent shall be determined as follows:
|
The annual fixed rent |
= |
Fixed rent that is the hammer price for the entire lease term |
|
Lease term |
For cases where it is not a full year, the fixed rent for that year shall be calculated based on the actual number of months leased:
|
The fixed rent |
= |
The annual fixed rent |
x |
The actual number of months leased |
|
12 (months) |
b) The annual floating rent shall be equal to 42,5% of the pre-tax profit from operating the leased asset. The annual pre-tax profit is determined in accordance with the audited Financial statements (in case the lessee is an enterprise) or appraised, approved Final statements (in case the lessee is a public service provider) as regulated.
2. The fixed-term transfer price of the right to operate the maritime infrastructure asset is the amount of money that the enterprise receiving the transferred asset operation right for a fixed term must pay to the State based on the hammer price to obtain the asset operation right as per the signed contract.
3. The starting price of auction for the lease, fixed- term transfer of the right to operate the maritime infrastructure asset.
a) The starting price of the auction for the lease of the right to operate the maritime infrastructure asset is the lowest initial price for the entire lease term.
b) The starting price of the auction for the fixed-term transfer of the right to operate the maritime infrastructure assets is the lowest initial price.
The Minister of Construction and the Provincial People's Committees shall approve the starting price for auctions of lease, fixed-term transfer of the right to operate the maritime infrastructure asset under their management.
4. Grounds for determining the starting price of the auction for the lease of the right to operate the maritime infrastructure asset include:
a) The fixed rent includes:
Annual asset depreciation value determined according to the Ministry of Finance's guidance on management of and depreciation calculation for maritime infrastructure assets. For maritime infrastructure assets that have been put into use and operated before the approval of the Scheme for the lease of asset operation rights specified herein, if the proceeds from asset operation transferred to the state budget is less than the prescribed asset depreciation value, the difference between the proceeds and the asset depreciation value shall divided to the remaining years of use or lease years of the asset in accordance with approved Scheme for the lease of the asset operation rights (for asset that have fully been depreciated).
Annual interest payment (for projects using loan capital) determined based on the loan agreement for investing in the construction of asset for lease. In cases where the State has partially paid interest during the development of the Scheme for the lease of the asset operation right, the portion of interest paid by the State is divided by the remaining years of use or lease years of the asset to ensure offsetting the portion of interest already paid by the State.
Management costs of the Lessor, including:
Salaries, allowances, social insurance, health insurance, unemployment insurance, and trade union fees for managers of the asset operation management authority. Costs for salaries for managers shall be determined in accordance with laws on salaries and other
Cost of materials used for management such as office consumables, repair costs of fixed assets, machinery, equipment, tools, instruments, etc.;
Cost of office supplies used for management tasks.
Depreciation costs of common fixed assets, including: office buildings, warehouses, structures, means of transport, means of transmission, machinery and equipment used for management in the office (if any);
Taxes, fees and charges as prescribed by the law;
Outsourced service costs serving the management department: costs of electricity, water, telephone, etc.; costs of conducting survey, costs of preparation of a lease scheme; consultancy fees for valuation and appraisal of the rent; asset re-assessment costs (if any); and cost of hiring an independent auditing unit to audit the Lessee's financial statements (if any).
Other monetary costs in addition to the above-mentioned costs, such as meeting organization costs, business trip costs, travel costs, expenses for female workers, meeting participation fees, and other reasonable and legitimate costs related to the management of maritime infrastructure assets for lease;
If any of the aforementioned costs are regulated by an economic-technical standard system, policies, benefits issued by the competent authorities, or the law (tax law, accounting law, statistical law, and other related laws) and have prices prescribed by the State, those costs shall be determined in accordance with such regulations. For those covered by the above regulations, the head of the infrastructure management authority shall approve them and be accountable for their decisions.
b) Valuation certificates and valuation reports of the valuation enterprises as regulated by price laws or the price determination results of the Valuation council as stipulated in clause 6 of Article. The use of valuation certificates and valuation reports of valuation enterprises shall be carried out in accordance with laws on prices.
5. Grounds for determining the starting price for auction for fixed-term transfer of the right to operate the maritime infrastructure assets include:
a) Additional investment by project on upgrade, expansion of assets approved by the competent authority/person.
Wherein the additional investment value is the part of the value that the enterprise receiving the fixed-term transfer of the asset operation right shall implement with its own funds by the project approved by the competent authority/person.
b) Estimated revenue, estimated costs from asset operation during the transfer term.
c) Valuation certificates and valuation reports of the valuation enterprises as regulated by price laws or the price determination results of the Valuation Council as stipulated in clause 6 of Article. The use of valuation certificates and valuation reports of valuation enterprises shall be carried out in accordance with laws on prices.
6. The starting price of the auction for the lease/fixed-term transfer of the right to operate the maritime infrastructure asset shall be determined as follows:
a) The infrastructure management authority shall select a valuation enterprise for the valuation of the fixed rent (for cases of lease of asset operation right)/transfer price (for cases of fixed-term transfer of asset operation right) as grounds, or establish a Valuation Council for determination of starting rent/transfer price. A Valuation Council shall consist of: The head of the infrastructure management authority or the authorized person acting as the President; other members, including: Representatives of relevant specialized departments of the infrastructure management authority; representatives of relevant agencies and units of the Ministry of Construction (for assets under central management); representatives of relevant agencies and units of the Provincial People's Committee (for assets under local management); representatives of other agencies (if any). If necessary, the Valuation council shall hire a price consulting organization to advise on determining the starting price.
b) The infrastructure management authority shall determine the starting rent of the asset operation right, the fixed-term transfer price of the right to operate the maritime infrastructure assets according to clauses 4 and 5 of this Article, prepare and submit 01 application to the competent authority/person specified in clause 2 of this Article for approval. The application includes:
An application form from the infrastructure management authority for approval of the starting price: original copy;
Documents related to grounds for determining the starting price as stipulated in clauses 4 and 5 of this Article: duplicate copy.
c) In the Decision approving the starting price for auction for fixed-term transfer of the asset operation right, the estimated annual revenue must be determined in the starting price scheme to serve as reconciliation revenue in cases specified in point l of clause 9 of Article 15 hereof.
The notice of auction for the lease of the right to operate the maritime infrastructure asset must include information about the starting price, which is the fixed rent for auction for the lease of the asset operation rights, the payable floating rent, and the form of payment of fixed rent (annual or lump-sum payment) as stipulated in clause 1 of this Article.
7. After 02 unsuccessful auctions for the lease or fixed-term transfer of the right to operate the maritime infrastructure asset, the infrastructure management authority shall review the causes and propose solutions, report to the Minister of Construction (for assets under central management) or the provincial People’s Committee (for assets under local management) for review and decision on whether to continue organizing auctions or change the current operation method to the method in which the infrastructure management authority shall directly organize the operation of maritime infrastructure asset as follows:
a) In case of continue to organize the auction for the lease, the fixed-term transfer of the right to operate the maritime infrastructure asset, if the reason for the unsuccessful auction is determined to be due to the starting rent/fixed-term transfer price of the asset operation right being high and no longer in line with the regulations on determining the starting price as stipulated in this Article, the starting price shall be re-determined in accordance with clauses 3, 4, 5 and 6 of this Article.
b) Case of changing the current operation method to the method in which the infrastructure management authority shall directly organize the operation of maritime infrastructure asset shall comply with Article 13 hereof.
8. Pursuant to regulations of this Decree, if there are difficulties or obstacles during the implementation that require specific guidance, the Ministry of Construction shall provide guidance on determining the starting price for auction for the lease/fixed-term transfer of the right to operate the maritime infrastructure assets.
Article 17. Management, use of proceeds from operation of maritime infrastructure assets
1. For cases where the infrastructure management authority directly organizes the operation of maritime infrastructure assets specified in point a of clause 1 of Article 12, Article 13 hereof:
a) The proceeds from operation of maritime infrastructure assets shall be managed and used in accordance with the laws on fees, charges, laws on state budget, and other relevant laws.
b) Proceeds from the operation of maritime infrastructure assets that are proceeds from maritime infrastructure asset service provision and other proceeds specified in point b of clause 3 of Article 12 hereof (including from the construction and installation of telecommunications works on the maritime infrastructure assets) are managed and used according to the financial mechanism applicable to infrastructure management authorities in accordance with clause 2 of Article 85 of the Law on Management and Use of Public Property.
2. For cases of operation of maritime infrastructure assets in accordance with Article 14, Article 15 hereof:
a) Proceeds from the lease/fixed-term transfer of the right to operate the maritime infrastructure assets (including any late payment interest) shall be transferred into an escrow account at the State Treasury, with the agency specified below being the account owner:
The agencies designated by the Ministry of Construction to be the account holder for assets managed by the central infrastructure management authorities;
Departments of Finance for assets managed by local infrastructure management authorities.
b) The escrow account shall be closely monitored for each authority that has asset in operation.
c) Expenditures:
costs for the preparation, submission, approval of the Scheme for the lease, the fixed-term transfer of the asset operation right; costs for inventory, determination of the starting price, organization of the auction for lease, the fixed-term transfer of the asset operation right; costs for conservation, protection of asset during the selection of the organization, enterprise for operation; costs for management of the lessor, transferor during the contract period; costs for hiring an independent auditor for conducting an inspection of accounting books and results of operating leased asset of the Lessee and the Transferee (if any); other relevant costs.
d) The cost estimate related to the operation of the maritime infrastructure asset shall be prepared by the infrastructure management authority, submitted to the head of the infrastructure management authority for approval after receiving the opinion of the escrow account holder.
dd) The expenditure used as grounds for preparing cost estimates, procedures for payment related to the operation of maritime infrastructure assets shall comply with clauses 4, 5, 6, and 7 of Article 25 hereof.
e) Every 6 months (at the latest on June 30 and December 31), the escrow account holder shall transfer the remaining proceeds from the operation of the maritime infrastructure asset (after completing the payment of costs specified in points c, d of this clause deducted from the escrow account) to the state budget (the central government budget for proceeds from assets under central management, the local government budget for proceeds from assets under local management) in accordance with laws on the state budget. After this deadline, if the infrastructure management authority does not send a payment request dossier to the escrow account holder and does not have a document stating the reason for not completing the payment dossier, the escrow account holder shall transfer the proceeds to the state budget.
g) The proceeds transferred to the state budget are prioritized for allocation to the public investment plan and the state budget expenditure estimate for new construction, upgrading, renovation, expansion, and development of maritime infrastructure assets according to the laws on the state budget, public investment, and other relevant laws.
Section 4. DISPOSAL OF MARITIME INFRASTRUCTURE ASSETS
Article 18. Forms of disposal of maritime infrastructure assets
1. Repossession.
2. Transfer.
3. Transfer to administrative divisions for management and disposal.
4. Liquidation.
5. Disposal of the asset if it is lost or damaged.
6. Disposal of the maritime infrastructure asset in case the owner’s representative agency approves the Plan for supplementary investment in charter capital at the enterprise in which the State holds 100% of the charter capital using maritime infrastructure asset.
7. Other forms as prescribed by law or the Prime Minister’s decisions.
Article 19. Repossession of maritime infrastructure assets
1. The maritime infrastructure assets shall be repossessed in the following cases:
a) When there are changes in planning, management hierarchy.
b) Assets that have been assigned but are no longer needed for use as maritime infrastructure assets.
c) Assets assigned to the wrong entity, used for the wrong purpose, or lent out.
d) When there is a Plan for supplementary investment in charter capital at the enterprise in which the State holds 100% of the charter capital using maritime infrastructure assets approved by the owner’s representative agency as prescribed.
dd) Other cases as stipulated by the laws.
2. Authority to decide the disposal of maritime infrastructure assets:
a) The Minister of Construction shall decide the disposal of maritime infrastructure assets under central management.
b) The provincial People's Committees shall decide the disposal of maritime infrastructure assets under local management.
c) Authority to decide the asset repossession in cases specified in point d of clause 1 of this Article shall comply with clause 2 of Article 24 hereof.
3. The repossessed maritime infrastructure assets shall be disposed of in the following forms:
a) Transfer.
b) Transfer to administrative divisions for management and disposal.
c) Assign to enterprises for management assets that are invested in as state capital at that enterprise in accordance with clause 24 hereof.
4. The procedures for repossession of maritime infrastructure assets (except for cases specified in clause 5 of this Article):
a) The infrastructure management authority shall prepare and submit 01 application for asset repossession to the competent authority/person as stipulated in clause 2 of this Article. The application includes:
An application form from the infrastructure management authority for approval of the asset repossession: original copy;
Plan for supplementary investment in charter capital at the enterprise in which the State holds 100% of the charter capital using maritime infrastructure assets approved by the owner’s representative agency as prescribed (for case of repossession specified in point d of clause 1 of this Article): duplicate copy;
List of assets to be repossessed using Form 01B in the Appendix attached hereto: original copy;
Other relevant documents (if any): duplicate copy.
b) Within 15 days from the date of receiving the complete application specified in point a of this Clause, the competent authority/person specified in point a, point b of clause 2 of this Article shall review and decide the asset repossession under their jurisdiction or shall have a written response in case the request for asset repossession is not appropriate.
c) The main contents of the Decision on repossession of maritime infrastructure assets include: Name of the authority with the asset to be repossessed; name of the authority assigned to carry out the repossession decision; list of assets to be repossessed (name of the assets; address; year of putting into use; basic parameters (quantity, volume, length, area, etc.); gross price, residual value; condition of the assets); reason for repossession; responsibilities for implementation.
d) Based on the Decision on asset repossession of the competent authority/person, the designated authority shall prepare and submit a plan for disposal of the repossessed asset in forms specified in clause 3 of this Article to the competent authority/person for approval. Upon approval, the asset disposal shall be carried out according to the approved plan. During the waiting period for asset disposal, the agency with repossessed asset is responsible for the preservation and protection of the asset as prescribed.
dd) The infrastructure management authority shall perform asset reduction accounting in accordance with accounting laws; report asset changes as required by this Decree.
5. The procedures for repossession of maritime infrastructure assets upon request by authorities assigned to carry out inspection, assessment and audit and impose penalties for administrative violations, or other state regulatory authorities:
a) At the request of authorities assigned to carry out inspection, assessment and audit and impose penalties for administrative violations, or other state regulatory authorities, competent authorities/persons specified in clause 2 of this Article shall review and decide the asset repossession within their jurisdiction.
b) The main content of the Decision on asset repossession, post-repossession disposal of assets, and the responsibilities of relevant agencies shall comply with points c, d, and dd of clause 4 of this Article.
Article 20. Transfer of maritime infrastructure assets
1. The maritime infrastructure assets shall be transferred in the following cases:
a) When there are changes in the managing authorities, management hierarchy, and asset classification as prescribed.
b) Assets that have been assigned but are no longer needed or the asset operation is not efficient.
c) When there is a Plan for supplementary investment in charter capital at the enterprise in which the State holds 100% of the charter capital using maritime infrastructure assets approved by the owner’s representative agency as prescribed.
d) Other cases as stipulated by the laws.
2. Authority to decide the transfer of maritime infrastructure assets:
a) The Minister of Finance shall decide the transfer of maritime infrastructure assets between ministries, central authorities, between central and local authorities, between provinces, centrally affiliated cities.
b) The Minister of Construction shall decide the transfer of maritime infrastructure assets between agencies, organizations, units within their management.
b) The provincial People's Committees shall decide on the transfer of maritime infrastructure assets between agencies, organizations, units within the local management.
d) Authority to decide the asset transfer in cases specified in point c of clause 1 of this Article shall comply with clause 3 of Article 24 hereof.
3. Procedures for transferring maritime infrastructure assets
a) When there are maritime infrastructure assets that need to be transferred, the infrastructure management authority shall prepare and submit 01 application for asset transfer to the competent authority/person as stipulated in point b, point c of clause 2 of this Article. The application includes:
An application form from the infrastructure management authority for approval of the asset transfer: original copy;
Application for receipt of the asset from the receiving agency, organization, unit, and the superior managing authority (if any) of that agency, organization, unit: Original copy. If the asset is transferred due to changes in management authority, management hierarchy, or asset classification, it is not mandatory to prepare an application for receipt of the asset from the receiving agency, organization, or unit;
Plan for supplementary investment in charter capital at the enterprise in which the State holds 100% of the charter capital using maritime infrastructure assets approved by the owner’s representative agency as prescribed (for case of transfer specified in point c of clause 1 of this Article): duplicate copy;
List of assets to be transferred using Form 01B in the Appendix attached hereto prepared by the infrastructure management authority: original copy;
Other relevant documents (if any): duplicate copy.
b) Within 15 days from the date of receiving the complete application specified in point a of this Clause, the competent authority/person specified in point b, point c of clause 2 of this Article shall review and decide on asset transfer under their jurisdiction or shall have a written response in case the request for asset transfer is not appropriate.
In cases where the asset transfer falls under the authority of the Minister of Finance, the Minister of Construction (for assets under central management) or the Provincial People's Committees (for assets under local management) shall prepare and submit an application to the Ministry of Finance for review and decision on asset transfer or shall have a written response in case the request for asset transfer is not appropriate. The application includes:
An application form from the Ministry of Construction or the provincial People's Committee for asset transfer: original copy;
List of assets to be transferred using Form 01B in the Appendix attached hereto prepared by the Ministry of Construction or the provincial People's Committee: original copy;
Opinions of relevant agencies (if any): duplicate copy;
An application specified in Point a of this Clause: duplicate copy.
c) The main contents of the Decision on asset transfer include: Name of the authority with assets to be transferred; name of the receiving agency, organization, unit; list of assets to be transferred (name of the assets; address; year of putting into use; basic parameters (quality, volume, length, area, etc.); gross price, residual value; condition of the assets); reason for transfer; responsibilities for implementation.
d) Within 30 days from the date of issuance of Decision on asset transfer of the competent authority/person as specified in clause 2 of this Article, the authority transferring the asset and the receiving agency, organization, unit shall:
Hand over and receive the asset; the handover and receipt must be recorded in a Minute of Handover using Form 01 in the Appendix attached hereto;
The infrastructure management authority shall preserve, protect, and maintain the maritime infrastructure works in accordance with law until the handover is completed;
Carry out asset reduction and increase accounting as per accounting laws; report asset changes as required hereby;
c) For assets transferred to enterprises for management that are invested in as state capital at that enterprise in accordance with point c of clause 1 of this Article, upon receiving an Asset Transfer Decision from competent authorities/persons, regulations specified in clause 3 of Article 24 hereof shall apply.
dd) Reasonable costs directly related to the handover and receipt of assets shall be paid by the receiving agency, organization, unit in accordance with applicable regulations.
e) There is no need to pay the asset value when transferring assets.
4. For maritime infrastructure assets subject to a repossession decision, which is then transferred, the authority assigned to execute the repossession decision shall prepare and submit a plan for disposal of the repossessed assets (enclosed with an application for receipt of asset from the agency, organization, unit, enterprise and their superior management agency (if any); a list of assets as prescribed in Point a of Clause 3 of this Article; documents related to the assets) to the competent authority/person prescribed in Clause 2 of this Article for review and decision. The procedures, content of the decision on asset transfer, execution of the Decision and other contents shall comply with points b, c, d, dd, and e of Clause 3 of this Article; in which the agency assigned to organize the implementation of the Repossession Decision shall exercise the rights and responsibilities of the authority with asset transferred.
Article 21. Transfer of maritime infrastructure assets to administrative divisions for management and disposal
1. Maritime infrastructure assets shall be transferred to administrative divisions for management and disposal in the following cases:
a) Assets that have been assigned to managing authorities but such authorities no longer need to use them.
b) Being removed from the planning of maritime infrastructure works.
c) Other cases as stipulated by the laws.
2. Authority to decide the transfer of maritime infrastructure assets to administrative divisions for management and disposal:
a) The Minister of Construction shall decide to transfer maritime infrastructure assets managed by the central infrastructure management authority to an administrative division (Provincial People's Committees) for management and disposal.
b) The Provincial People's Committee shall decide to transfer maritime infrastructure assets managed by the local infrastructure management authority to local authorities (relevant authorities of the Provincial People's Committees, Land bank development organizations) for management and disposal.
3. Disposal of maritime infrastructure assets shall only be carried out in form of transfer of assets to administrative divisions for management and disposal in cases where the assets are no longer used for the purpose of being maritime infrastructure assets.
4. Procedures for transfer of maritime infrastructure assets to administrative divisions for management and disposal:
a) When there are maritime infrastructure assets that need to be transferred, the infrastructure management authority shall prepare and submit 01 application for asset transfer to the competent authority/person as stipulated in clause 2 of this Article. The application includes:
An application from the infrastructure management authority for the asset transfer: original copy;
Opinion of the Provincial People's Committee (the receiving entity) for transfer of assets under central management: original copy;
List of assets proposed for transfer using Form 01B in the Appendix attached hereto: original copy;
Related documents regarding the reason for the asset transfer (if any): duplicate copy;
Other relevant documents (if any): duplicate copy.
b) Within 15 days from the date of receiving the complete application specified in point a of this Clause, the competent authority/person specified in clause 2 of this Article shall review and decide the asset transfer under their jurisdiction or shall have a written response in case the request for asset transfer is not appropriate.
c) The main contents of the Decision on asset transfer include: Name of the authority with asset to be transferred; name of the receiving agency; list of assets to be transferred (name of the assets; address; year of putting into use; basic parameters (quantity, volume, length, area, etc.); gross price, residual value (if any); condition of the assets); reason for transfer; responsibilities for implementation.
d) Within 15 days from the issuance date of the Decision on asset transfer of the competent authority/person specified in point a of clause 2 of this Article, the Provincial People's Committee shall decide to receive the asset and assign the task of receiving the transferred asset to the local authorities (relevant authority of the Provincial People's Committee, Land bank development organization).
dd) Within 30 days from the issuance date of the Decision on receipt of asset of the Provincial People's Committee (for cases specified in point d of this Article), and from the issuance date of the Decision on asset transfer (for other cases), the infrastructure management authority with asset to be transferred (Transferring Party) shall take charge and cooperate with the receiving agency (Receiving Party) in organizing the handover and receipt of the asset; the handover and receipt of the asset are documented in a Minute using Form 01 in the Appendix attached hereto. The Transferring Party shall perform asset reduction accounting as per accounting laws; report asset changes as prescribed in this Decree.
e) The infrastructure management authority shall preserve, protect the asset, and maintain maritime infrastructure works in accordance with law until the handover is completed; perform asset reduction accounting as per accounting laws; report asset changes as prescribed in this Decree.
g) In case the infrastructure management authority fails to hand over or the local authority fails to receive the asset within the time limit specified in point dd of this clause, they shall be responsible for paying the costs of management, preservation, maintenance, and protection of the asset during the delayed period and shall be responsible for compensation in case the asset is destroyed, lost, or damaged; the state budget shall not be used to cover the costs incurred in this case.
h) The receiving agency shall supervise and calculate depreciation of the asset from the time of asset receipt until the completion of asset disposal as per the regulations of clause 6 of this Article.
Reasonable costs directly related to the handover and receipt of assets shall be paid by the receiving agency.
i) There is no need to pay the asset value when transferring assets to administrative divisions for management and disposal.
5. For maritime infrastructure assets subject to a repossession decision, which is then transferred to administrative division for management and disposal, the authority assigned to execute the repossession decision shall prepare and submit a plan for disposal of repossessed assets (enclosed with an application for receipt of assets from the People's Committee of the province where the assets are located for assets under central management; a list of assets as prescribed in Point a of Clause 4 of this Article; documents related to the assets) to the competent authority/person prescribed in Clause 2 of this Article for review and Decision on the transfer of assets to administrative divisions for management and disposal.
The procedures, content of the decision on asset transfer, execution of the decision, and other contents shall comply with points b, c, d, dd, e, g, h, and i of Clause 4 of this Article; in which the agency assigned to execute the Repossession Decision shall exercise the rights and responsibilities of the authority with assets transferred.
6. After receiving the asset, the receiving agency shall refer to the dossiers of specific cases to provide advice or propose to the agency responsible for consultation and report to the competent authority or person to handle as prescribed by the law as follows:
a) In cases of transfer to an agency, organization, or unit for management and use, the process shall be carried out in accordance with the laws on the management and use of public property.
b) Cases of assigning to a local organization licensed for housing management and trade for management and operation shall comply with Decree No. 108/2024/ND-CP dated August 23, 2024, of the Government on the management, use, and operation of houses and land that are public property not for residential purposes assigned to a local organization licensed for housing management and trade for management and operation.
c) Cases of disposal under residential housing and land policies shall comply with laws on housing and other related laws.
d) Cases of land allocation or leasing shall comply with laws on land and other relevant laws. In these cases, the disposal of assets attached to land shall be carried out as follows:
Based on the actual situation and condition of the assets attached to land, the corresponding agency responsible for consultation prescribed in Point e of this Clause shall report to the authority/person with competence to allocate or lease land for review and decision on selling the asset attached to land to organizations or individuals assigned or leased out land or the demolition or destruction of asset attached to land before organizing land allocation, land lease, land use right auction, or bidding for land-using projects.
For cases of selling the asset attached to land to organizations or individuals allocated or leased out the land, the corresponding agency responsible for consultation prescribed in Point e of this Clause shall decide on the selling price of the work on the land to ensure that it is consistent with the actual remaining value of the asset; the agency responsible for consultation prescribed in Point e of this Clause shall establish a Valuation Council in accordance with the law on prices or hire a valuation enterprise for valuation as a basis for deciding on the selling price of the work; the person assigned or leased out land shall be responsible for purchasing the asset attached to the land. In case the local planning requires the division of land into many lots, the value of the asset attached to the land shall be divided by each lot by its area in proportion to the total area of all lots.
For cases of demolition or destruction of assets attached to land before allocating or leasing out the land, the corresponding agency responsible for consultation shall conduct demolition or destruction of assets; materials repossessed from demolition and destruction shall be disposed of in accordance with Clauses 5, 6, 7, and 8 of Article 22 hereof; persons allocated or leased out land shall refund the residual value of the asset attached to the land as listed in the accounting books at the time of demolition and destruction. The responsibility of the person allocated or leased out land to refund the residual value of the asset attached to the land must be clearly determined in the Land Use Rights Auction Arrangement and notified to organizations and individuals who want to be allocated or leased out land.
dd) Cases of transfer to a land development organization for management and operation shall comply with laws on land.
In case the State allocates or leases out land attached to maritime infrastructure asset assigned to a land bank development organization for management and operation, the land bank development organization shall report to the authority/person the competence to dispose of the asset attached to the land in accordance with Point d of this Clause; the land bank development organization shall determine the selling price of the asset attached to the land (in case of selling asset attached to the land to organizations or individuals assigned or leased out land), disposed of repossessed materials (in case of demolition or destruction of asset attached to the land before organizing land allocation, land lease, bidding for land-using projects, or land use right auction); the person assigned or leased out land shall purchase the asset attached to the land and refund the residual value of such asset in accordance with Point d of this Clause.
e) The financial authority shall provide advice to the corresponding People's Committee in cases of disposal specified in points a and b of this clause The construction authority shall provide advice to the corresponding People's Committee in cases of disposal specified in point c of this clause. The natural resources and environment authority shall provide advice to the corresponding People's Committee in cases of disposal specified in points d and dd of this clause.
Article 22. Liquidation of maritime infrastructure assets
1. The maritime infrastructure asset shall be liquidated in the following cases:
a) Assets that are damaged beyond repair or the repair for use of which is not effective.
b) The old maritime infrastructure asset is demolished to invest in building new maritime infrastructure asset or to ensure traffic, returning the premise as per the approved project by the competent authority/person.
c) Other cases as stipulated by the laws.
2. Authority to decide the liquidation of maritime infrastructure assets:
a) The Minister of Construction shall decide or grant power to decide the liquidation of maritime infrastructure assets under their management.
b) The Minister of Construction shall decide or grant power to decide the liquidation of maritime infrastructure asset under their management.
3. The maritime infrastructure assets shall be liquidated through demolition and destruction.
4. Procedures for liquidating maritime infrastructure assets:
a) The infrastructure management authority shall prepare and submit 01 application for asset liquidation to the competent authority/person specified in clause 2 of this Article. The application includes:
An application form from the infrastructure management authority for asset liquidation: original copy;
List of assets proposed for liquidation using Form 01B in Appendix 1 attached hereto: original copy;
Other relevant documents (if any): duplicate copy.
b) Within 15 days from the date of receiving the complete application specified in point a of this Clause, the competent authority/person specified in clause 2 of this Article shall review and decide the asset liquidation or shall have a written response in case the request for asset liquidation is not appropriate.
c) The main contents of the Decision on asset liquidation include: Name of the authority with asset to be liquidated; list of asset to be liquidated (name of the assets; address; year of putting into use; basic parameters (quantity, volume, length, area, etc.); gross price, residual value (if any); condition of the assets); reason for liquidation; form of liquidation.
d) Based on the Decision to asset liquidation of the competent authority/person specified in clause 2 of this Article, the infrastructure management authority shall organize the demolition and destruction of maritime infrastructure works and dispose of the repossessed materials. The disposal of materials repossessed shall be carried out in accordance with the regulations specified in clauses 5, 6, 7, and 8 of this Article.
5. Forms of disposal materials repossessed from the demolition of works:
a) Assigning repossessed materials that are still usable to the infrastructure management authority (the authority with assets to be liquidated) to use in maintenance.
b) Transferring materials repossessed to agencies, organizations, or units for management and use.
c) Selling repossessed materials and supplies that are not needed.
d) Destroying materials that are no longer usable. The infrastructure management authority shall destroy materials that are no longer usable.
6. Assigning materials repossessed to the infrastructure management authority (the authority with assets liquidated) for maintenance of materials that are still usable. For cases where the infrastructure management authority has submitted an application to the competent authority/person specified in clause 2 of this Article for deciding the assignment of the materials repossessed for putting into use, no maintenance fund shall be allocated for the portion of the value of materials used for maintenance work. If the maintenance fund has already been allocated in the budget, it should be deducted from the maintenance budget of that year corresponding to the value of the materials as per the budget and the maintenance contract value.
7. Transfer of materials repossessed to agencies, organizations, or units for management and use:
a) At the request of the infrastructure management authority (the authority with assets liquidated) and the request of the agency, organization, or unit in need of receiving the materials repossessed, the Minister of Construction, the Provincial People's Committee shall decide to transfer them to agencies, organizations, or units within their management; the Minister of Finance shall decide to transfer them outside the Ministry of Construction, Provincial People's Committees.
b) An application for transfer of repossessed materials includes:
An application from the infrastructure management authority for transfer of repossessed materials: original copy;
Application for receipt of the repossessed material from the receiving agency, organization, unit, and the superior infrastructure management authority (if any) of that agency, organization, and unit: original copy;
List of materials to be transferred (types, quantities, conditions; intended use after transfer): original copy;
Other relevant documents related to the request for the transfer of repossessed materials (if any): duplicate copy.
c) Within 15 days from the date of receiving the complete application specified in point b of this Clause, the Minister of Construction/Provincial People's Committee shall review and make a decision under its jurisdiction or shall have a written response in case the request for transfer of repossessed materials is not appropriate.
d) If the transfer falls under the authority of the Minister of Finance, the Ministry of Construction, the Provincial People's Committee shall submit an application (along with copies of the documents specified in point b of this clause) to the Ministry of Finance for review and decision on the transfer or shall provide a written response in case the transfer request is not appropriate.
dd) The main contents of the Decision on the transfer of repossessed materials include: Name of the agency with the materials to be transferred due to asset liquidation; name of the receiving agency, organization, unit; list of materials to be transferred (name, type, quantity); intended use after the transfer; responsibilities for implementation.
e) Within 30 days from the date of the Decision on the transfer of repossessed materials of the competent authority/person, the infrastructure management authority, and the receiving agency, organization, unit shall organize the handover and receipt of the transferred materials; the handover and receipt shall be documented in a Minute using Form 01 in the Appendix attached hereto.
8. Selling materials repossessed that are not needed:
The head of the infrastructure management authority shall decide the sale of materials repossessed. The sale of materials not needed is carried out in accordance with the regulations in Article 31 of Decree No. 151/2017/ND-CP dated December 26, 2017, of the Government detailing some articles of the Law on Management and Use of Public Property (which is amended by Article 23 of Decree No. 114/2024/ND-CP dated September 15, 2024, of the Government amending Decree No. 151/2017/ND-CP dated December 26, 2017, of the Government).
9. For cases of liquidation of old maritime infrastructure assets as stipulated in point b of clause 1 of this Article in projects approved by the competent authority/person that include regulations on asset liquidation, the asset liquidation shall be carried out according to the approved project; the infrastructure management authority is not required to follow the asset liquidation procedures as stipulated in point 4 of this Article; the disposal of materials repossessed (if any) shall be carried out in accordance with clauses 5, 6, 7, and 8 of this Article, except when the value of the repossessed asset has already been deducted from the project package value.
10. After completing the asset liquidation, the infrastructure management authority shall perform asset reduction accounting as prescribed by accounting laws and report asset changes as stipulated in this Decree.
Article 23. Disposal of the maritime infrastructure assets if they are lost or damaged
1. The maritime infrastructure assets are lost or damaged due to natural disasters, fires, or other causes.
2. The authority to decide the disposal of the maritime infrastructure asset if it is lost or damaged:
a) The Minister of Construction shall decide or grant power to decide the disposal of the maritime infrastructure assets specified in clause 1 of this Article under their management.
b) The Provincial People's Council shall decide or grant power to decide the disposal of the maritime infrastructure assets specified in clause 1 of this Article under their management.
3. Procedures for disposal of the maritime infrastructure assets if they are lost or damaged:
a) Within 30 days from the date of discovering that the asset is lost or damaged, the infrastructure management authority shall determine the cause of the loss or damage and the responsibilities of the relevant collectives and individuals, prepare and submit an application for the disposal of the lost or damaged asset to the competent authority/person as specified in Clause 2 of this Article for review and decision. The application includes:
An application from the infrastructure management authority for disposal of the asset (clearly stating the reason for the loss or damage of the asset): original copy;
Report on determining the lost or damaged asset: original copy;
List of lost or damaged assets using Form 01B in the Appendix attached hereto: original copy;
Documentation proving the loss or damage of the asset: duplicate copy.
b) Within 15 days from the date of receiving the complete application specified in point a of this Clause, the competent authority/person specified in clause 2 of this Article shall decide the disposal of assets.
c) The main contents of the Decision on asset disposal include: Name of the authority with asset that is lost or damaged; list of lost, damaged assets (name of the assets; address; year of putting into use; basic parameters (quantity, volume, length, area, etc.); gross price, residual value (if any); condition of the assets before they were lost or damaged); reason for the loss or damage of the asset; responsibilities for implementation.
4. Within 30 days from the date of issuance of Decision on asset disposal of the competent authority/person, the infrastructure management authority shall:
a) Carry out asset reduction and increase accounting as per accounting laws.
b) Report asset changes in accordance with this Decree.
c) Handling the responsibilities of the relevant organizations and individuals in accordance with law.
5. The state budget shall ensure funding for the restoration and repair of maritime infrastructure assets to restore safe and smooth maritime operations.
In cases where maritime infrastructure asset is lost or damaged and is compensated by insurance companies or relevant organizations, individuals, the compensation shall be managed in accordance with clause 1 of Article 25 hereof. After deducting relevant costs (if any), the compensation shall be transferred to the state budget as per regulations and is prioritized to be allocated to the public investment plan, state budget expenditure estimate for investing in building replacement assets in accordance with the corresponding regulations of laws on the state budget, public investment, and other relevant laws.
Article 24. Disposal of assets assigned to wholly state-owned enterprise for management that are invested in as state capital at that enterprise
1. In case, according to the provisions of law, the State makes additional investment in charter capital at a wholly State-owned enterprise using the value of maritime infrastructure assets assigned to the infrastructure management authority specified in Clause 1 of Article 5 hereof, such assets shall be repossessed or transferred to the enterprise.
2. In case the representative agency of the owner of the enterprise assigned with the asset that is invested in as state capital at that enterprise is the Ministry of Construction or the Provincial People's Committee:
a) The Minister of Construction/the Provincial People's Committee shall decide the repossession of the asset assigned to infrastructure management authorities under their management.
Procedures for asset repossession shall comply with Clause 4 of Article 19 hereof.
b) The Ministry of Construction, Provincial People's Committee (owner’s representative agency), shall decide and make additional investment in charter capital using the value of maritime infrastructure assets at the enterprise in accordance with the law on management and use of state capital invested in the enterprise’s manufacturing and business activities and the law on maritime and other relevant laws.
3. In case the representative agency of the owner of the enterprise assigned with the asset that is invested in as state capital at that enterprise is not the Ministry of Construction or the Provincial People's Committee:
a) The Minister of Finance shall transfer the asset from the Ministry of Construction/the Provincial People's Committee to the ministry/central authority/provincial People's Committee that is the representative agency of the owner of the enterprise.
Procedures for asset transfer shall comply with Clause 3 of Article 20 hereof.
b) Based on the Decision on asset transfer of the Minister of Finance, ministries, central agencies, or provincial People's Committees, which are the representative agencies of the owners of enterprises, shall decide and make additional investments in charter capital using the value of maritime infrastructure assets at the enterprises in accordance with the law on management and use of state capital invested in the enterprise’s manufacturing and business activities and the law on maritime and other relevant laws.
4. The infrastructure management authority shall perform asset reduction accounting in accordance with accounting laws; report asset changes as required by this Decree.
5. The determination of the value of assets used as additional investment in charter capital of an enterprise shall be carried out according to Clause 3 of Article 7 hereof. The management, use, and exploitation of maritime infrastructure assets after being assigned to the enterprise shall comply with the law on management and use of state capital invested in the enterprise’s manufacturing and business activities and Clause 8 of Article 7 hereof.
Article 25. Management, use of proceeds from disposal of maritime infrastructure assets
1. Proceeds from disposal of the maritime infrastructure assets (including any compensation) shall be transferred into an escrow account at the State Treasury, with the agency specified below being the account owner:
a) The agency designated by the Ministry of Construction to be the account holder for assets managed by the central infrastructure management authority;
b) Department of Finance for assets managed by local infrastructure management authorities.
2. Costs related to the disposal of the maritime infrastructure asset include:
a) Inventory and measurement costs.
b) Costs of relocation, demolition, and destruction.
c) Cost of price determination and valuation.
d) Cost of organizing the sale of repossessed materials.
dd) Costs of protecting and preserving assets while waiting for processing.
e) Other reasonable related costs.
3. Expenditure levels:
a) Expenditures that have standards, norms, and policies specified by the competent state authority shall comply with the standards, norms, and regimes set by the competent state authority.
b) Expenditures for asset disposal-related services shall comply with contracts signed between the infrastructure management authority and the service provider. The selection of the provider of asset disposal-related services shall comply with relevant laws.
c) For expenditures beyond the scope stipulated in point a, point b of this clause, the head of the infrastructure management authority shall decide the expenditure amount, ensuring compliance with the current financial management policy of the State and take responsibility for their decisions.
4. Based on the expenditures specified in clause 2 of this Article, the expenditure level specified in clause 3 of this Article, the infrastructure management authority shall prepare and submit an estimate for expenditures related to asset disposal to the Head of the infrastructure management authority for approval (the approval time limit is 30 days from the date of submitting the estimate).
5. Within 30 days of the asset being disposed of, the infrastructure management authority must prepare and send an application to the escrow account holder for payment of the costs of the asset disposal or an extension of the payment deadline (it should state the reason for the extension and the extended period, which should not exceed 30 days from the date of the application) or confirm in writing no expenses have arisen. The head of the infrastructure management authority is accountable to the law for any delays in submitting documents, the accuracy of the requested payment, and their decisions. The application includes:
a) Payment application from the infrastructure management authority (including the proceeds from asset disposal, total disposal costs, information on the receiving account) enclosed with the specific list of expenditures: Original copy.
b) Decision on disposal of asset of the competent authority or person: duplicate copy.
6. Within 30 days from the date of receiving the complete application, the holder of the escrow account shall grant funds to the infrastructure management authority to pay costs related to the disposal of maritime infrastructure assets.
7. Every 6 months (by June 30 and December 31 at the latest), the escrow account holder shall transfer to the central government budget (for proceeds from disposal of assets under central management) or the local budget (for proceeds from disposal of assets under local management) the proceeds from asset disposal:
a) The costs of which are paid or that has a document confirming no expenses have arisen from the infrastructure management authority
b) Where the 30-day period has passed from the date the infrastructure management authority has transferred proceeds into the escrow account but the holder has not received a payment application or deferral application from the infrastructure management authority.
8. In cases where the proceeds from asset disposal are not sufficient to cover the costs, the shortfall shall be allocated in the state budget expenditure estimate of the infrastructure management authority.
9. In cases where outsourcing costs must be paid when disposing of assets according to applicable regulations before the escrow account holder grants funds, the infrastructure management authority is allowed to advance from its recurrent funding sources.
Section 5. USE OF MARITIME INFRASTRUCTURE ASSET FOR PARTICIPATING IN PPP INVESTMENT PROJECTS AND MANAGEMENT AND USE OF PPP-INVESTED MARITIME INFRASTRUCTURE ASSET
Article 26. Use of maritime infrastructure assets for participating in PPP investment projects and management and use of PPP-invested maritime infrastructure asset
1. The management, use, operation of maritime infrastructure in PPP form and the transfer of assets formed through PPP to the State shall be carried out in accordance with Articles 95 and 96 of the Law on Management and Use of Public Property and PPP laws.
The management and use of maritime infrastructure in PPP form shall not affect maritime traffic operation and ensure smooth and safe maritime traffic operation and compliance with laws on construction, the laws on maritime traffic, and other relevant laws.
2. Authority to decide on the use of the existing maritime infrastructure assets for participating in PPP investment projects:
a) The Prime Minister shall make decision on maritime infrastructure assets associated with national defense and security.
b) The Minister of Construction shall make decisions on maritime infrastructure assets under central infrastructure management authority, except for assets specified in point a of this Clause.
c) Provincial People's Committees shall make decisions on maritime infrastructure assets managed by local infrastructure management authority, except for assets specified in point a of this Clause.
3. Procedures for use of existing maritime infrastructure assets for participating in PPP investment projects
a) When there is an existing maritime infrastructure asset that needs to be used to participate in PPP investment projects, the infrastructure management authority shall prepare an application, report to the superior management authority (if any) for submission to the competent authority/person specified in points b, c of clause 2 of this Article. The application includes:
An application form from the infrastructure management authority for using the asset for participating in PPP investment projects: original copy;
Opinions of relevant agencies (if any): duplicate copy;
List of assets for participation in PPP investment projects using Form 01B in the Appendix attached hereto: original copy;
Other relevant documents (if any): duplicate copy.
b) Within 15 days from the date of receiving the complete application specified in point a of this Clause, the competent authority/person specified in points b, c of clause 2 of this Article shall review and decide the use of the asset for participating in PPP investment projects for cases under their jurisdiction or shall have a written response in case the request is not appropriate.
For cases that fall under the authority of the Prime Minister, the Ministry of Construction (for assets under central management) or the Provincial People's Committees (for assets under local management) shall prepare and submit an application to the Prime Minister for review and decision on using the asset to participate in PPP investment projects or shall provide guidance in case the request is not appropriate. The application includes:
An application from the Ministry of Construction (for assets under central management) or the Provincial People's Committee (for assets under local management) for using the asset to participate in PPP investment projects: original copy;
Opinions of relevant agencies (if any): duplicate copy;
An application specified in Point a of this Clause: duplicate copy.
c) The main contents of the Decision on using the maritime infrastructure asset for participation in PPP investment projects include: Name of the authority with asset to be used to participate in investment projects; name of the receiving investor; list of asset to be used to participate in PPP investment projects (name of the assets; address; year of putting into use; basic parameters (quantity, volume, length, area, etc.); gross price, residual value (if any); status of use of the asset); reason for transfer; responsibilities for implementation.
The infrastructure management authority shall preserve, protect, and maintain the maritime infrastructure works in accordance with law until the handover is completed.
4. Based on the Decision of the competent authority/person as specified in Article 2 on using existing assets to participate in PPP investment projects approved by the competent authority/person and the signed contract, the infrastructure management authority shall handover the asset to the investor for project execution. The handover of asset shall be recorded in a Minutes of Handover using the Form 01 attached hereto.
5. The investor executing the PPP investment project is responsible for accounting, managing, using, and maintaining the maritime infrastructure asset (including assets invested and managed by the State) that is used to participate in the Project, to ensure quality and technical standards as per the law on investment, law on construction and other relevant laws until the asset is transferred to the competent state authority.
The infrastructure management authority shall monitor and report on the portion of asset used to participate in the project while handing it over to the investor for project execution.
6. The authority with competence to conclude the project contract, the infrastructure management authority, shall monitor, inspect, and supervise the investor's compliance with clause 4, clause 5 of this Article until the investor transfers the asset to the competent authority.
Section 6. REPORTING ON AND DATABASE OF MARITIME INFRASTRUCTURE ASSETS
Article 27. Reporting on maritime infrastructure assets
1. Maritime infrastructure asset must be declared and updated in the Database of maritime infrastructure assets for unified management.
2. Forms of declaration:
a) First-time declaration shall apply to:
Existing maritime infrastructure asset at the time this Decree comes into effect;
Maritime infrastructure assets arising from the effective date of this Decree.
b) Additional declarations in case there is a change in information about the entity assigned to manage the asset or the asset after the first-time declaration.
3. The infrastructure management authority shall make a declaration on the asset, which shall be updated on the maritime infrastructure asset database.
The deadline for submitting a declaration is 30 days from the date the asset is put into use (for assets formed through purchases or new construction), from the date of asset reception according to the decision of the competent authority/person (for transferred assets), or asset disposal according to the decision of the competent authority/person, or when there is a change in the receiving asset or information about the declared asset.
4. Annually, the infrastructure management authority shall report on the management, use, and operation of maritime infrastructure assets and submit ad hoc reports upon request of the competent state authority. The closing date for annual reporting data is the end of the fiscal year.
5. The report on the management, use, and operation of maritime infrastructure assets shall include:
a) Report on the asset operation by each form prescribed in this Decree.
b) Consolidated report on the management, use and operation of asset.
6. The deadline for submitting annual reports on the management, use, and operation of maritime infrastructure assets:
a) The infrastructure management authority shall prepare and submit reports to the superior management agency (if any), report to the Ministry of Construction (for assets under central management), or the Provincial People's Committee (for assets under local management) by February 28 every year.
b) The Ministry of Transport, the Provincial People's Committee shall send final report on management, use, and operation of maritime infrastructure assets under their management to the Ministry of Finance before March 15 every year.
c) The Ministry of Finance shall send final report on management, use, and operation of maritime infrastructure assets nationwide to the Government for reporting to the National Assembly as required.
7. Reports on maritime infrastructure assets shall be prepared in written or electronic form. Depending on the receiving agency's practical conditions as regulated in points b and c of clause 6 of this Article, reports can be sent to the receiving agency:
a) In person.
b) Via post.
c) Via Fax.
d) Via Email.
dd) Via Specialized reporting information software system.
e) Via other forms as stipulated by the laws.
Article 28. Maritime infrastructure asset database
1. Maritime infrastructure asset database is a part of the national database on public property, built and uniformly managed nationwide; the information in the Maritime infrastructure asset database holds legal value similar to paper records.
2. The development and management of the Maritime infrastructure asset database must satisfy the following requirements:
a) Aligning with the architecture framework of Vietnam's e-Government, complying with national database technical standards, IT technical standards, information security and safety standards, and economic-technical norms.
b) Ensuring compatibility, integration capabilities, connection with the National public property database; information sharing and the ability to expand data fields in system design and application software.
3. The Ministry of Construction (for maritime infrastructure assets under central management), Provincial People's Committees (for maritime infrastructure assets under local management) shall instruct the central and local infrastructure management authorities and relevant agencies to report, input, and approve data on maritime infrastructure assets into the database according to applicable regulations.
Chapter IV
IMPLEMENTATION
Article 29. Responsibilities for implementation
1. Responsibilities of the Ministry of Construction
a) During the process of transferring maritime infrastructure assets, the Ministry of Construction shall direct relevant agencies, organizations, units to manage and use assets within the legal framework of laws on management of public property, law on maritime, and other relevant laws to ensure smooth and safe maritime operations.
b) Direct the review, classification, and cataloging of maritime infrastructure assets for accounting, depreciation, reporting, and the development of a Database on maritime infrastructure assets in accordance with this Decree and relevant laws.
c) Direct and inspect the management, use, and operation of maritime infrastructure assets within the management as defined in this Decree and related laws; address violations in asset management, use, and operation within jurisdiction or report to the relevant competent authorities/persons for action.
d) Report on the management, use, and operation of maritime infrastructure assets as stipulated in this Decree and as required by competent authorities/persons.
dd) Cooperate with the Ministry of Finance in developing a Database on maritime infrastructure assets nationwide for integration into the national public property database.
e) Specify the method of determining conventional prices for maritime infrastructure assets when there are no grounds to determine their gross price and residual value (including assets under central and local management).
Decide the use of the conventional price of maritime infrastructure assets under central management as a basis for determining asset values for accounting entries in cases where there is no information on the gross price, residual value, and no basis for determining these values.
g) Carry out other tasks, powers, and responsibilities specified in Decree and relevant laws.
2. Responsibilities of the Ministry of Finance:
a) Provide guidance on accounting of maritime infrastructure assets.
b) Specify management, asset depreciation calculation for maritime infrastructure assets, and provide guidance on declaration and reporting on maritime infrastructure assets.
c) Take charge and cooperate with the Ministry of Construction in building a Database on maritime infrastructure assets nationwide.
d) Provide guidance on integrating the Database on maritime infrastructure assets into the national database on public property.
dd) Carry out other tasks, powers, and responsibilities specified in Decree and relevant laws.
3. Responsibilities of Provincial People's Committees:
a) During the process of transferring maritime infrastructure assets, the Provincial People's Committees shall direct relevant agencies, organizations, units to manage and use assets within the legal framework of laws on management of public property, law on maritime, and other relevant laws to ensure smooth and safe maritime operations.
b) Direct, review, classify, document, and account for maritime infrastructure asset in accordance with this Decree and related laws.
c) Direct and inspect the management, use, and operation of maritime infrastructure assets within the management as defined in this Decree and related laws; address violations in asset management, use, and operation within jurisdiction or report to the relevant competent authorities/persons for action.
d) Direct data entry, normalization for maritime infrastructure assets under local management; report on the management, use and operation of assets as stipulated in this Decree.
dd) Decide the use of the conventional price of maritime infrastructure assets under local management as a basis for determining asset values for accounting entries in cases where there is no information on the gross price, residual value, and no basis for determining these values.
e) Carry out other tasks and powers specified in Decree and relevant laws.
4. Ministries, central agencies, and provincial People's Committees, within their jurisdiction, shall take charge and cooperate with the Ministry of Transport in managing, using, and operating maritime infrastructure assets in accordance with this Decree and other relevant laws.
5. Agencies, organizations, units, and other relevant entities may submit electronic documentation through the national document interconnection axis or the administrative procedure settlement information system in cases where digital signatures are already present when performing procedures prescribed in this Decree and scanned copies of digital signatures may be used on electronic documents instead of the original document. In case the procedures prescribed herein include multiple steps, the original copies as prescribed for each procedure shall be kept at the authority with competent to decide and approve or the authority of the person competent to decide and approve; other agencies shall keep duplicate copies.
Article 30. Transitional regulations
1. For maritime infrastructure assets that have been assigned in writing by competent authorities/persons to infrastructure management authorities or infrastructure management enterprises in accordance with Clause 1 and Clause 2 of Article 5 hereof, the infrastructure management authorities or enterprises shall manage, use and operate the assets as prescribed and shall not have to redo procedures for asset assignment in accordance with this Decree.
For maritime infrastructure assets specified in points b, c, d, and dd of Clause 1 of Article 7 hereof, the Ministry of Construction (for assets under central management), the Provincial People's Committees (for assets under local management) shall direct the review, statistics, and assignment of management of maritime infrastructure assets to the infrastructure management authorities and infrastructure management enterprises in accordance with this Decree within 12 months from the effective date of this Decree.
2. For maritime infrastructure assets under local management:
a) Cases where competent authorities/persons have approved the mechanism for management and use of assets as prescribed in Clause 4 of Article 31 of Decree No. 43/2018/ND-CP dated March 12, 2018 of the Government on the management, use, and operation of maritime infrastructure assets shall continue complying with the approved mechanism and regulations in this Decree.
b) For cases where competent authorities/persons have not reviewed and approved the mechanism for management and use of assets as prescribed in Clause 4 of Article 31 of Decree No. 43/2018/ND-CP , the assignment, management, use, and operation of maritime infrastructure assets shall comply with regulations in this Decree.
3. Contracts for the operation of maritime infrastructure assets that are concluded by the competent authority/person in accordance with law before the effective date of this Decree shall continue to be implemented in accordance with the applicable regulations until the end of the term of the signed contract.
4. For maritime infrastructure asset subject to disposal decisions of the competent authority, person before the effective date of this Decree (except as specified in Clause 5 of this Article), if the disposal has not been completed, the disposal shall continue to be carried out based on decisions made by the competent authority/person. Any pending tasks related to asset disposal must comply with this Decree by the effective date of this Decree.
5. For maritime infrastructure assets that have been decided to be sold by the competent authority in accordance with Decree No. 43/2018/ND-CP:
a) For cases of unsuccessful auctions in accordance with auction laws or if the auction results are cancelled as per laws on property auctions or if the sale decision of the competent authority has expired as per applicable regulations, the sale process shall be stopped, and the asset shall be disposed of in accordance with this Decree. The incurred costs related to the asset sale (including inventory, measurement costs; price determination and valuation costs; auction organization costs, and other sale-related costs) shall be handled as outlined in clauses 3, 5, and 9 of Article 25 hereof.
If there is already a sale decision of the competent authority/person and the auction has been publicly announced and scheduled, the auction process will continue as per applicable regulations.
b) In case the auction has been successful but the asset sales contract has not been signed according to applicable regulations, procedures shall continue to be carried out to complete the asset sale and purchase in accordance with law.
Within 90 days from the date on which the sales contract is signed, the buyer (successful bidder) shall pay the asset purchase price to the infrastructure management authority. Within 03 working days from the date on which the payment is received, the infrastructure management authority shall send this payment to an escrow account in accordance with Article 25 hereof.
If the buyer has not paid the amount specified in the contract in full within the prescribed deadline, a late payment interest of 0,03% per day on the outstanding amount will be calculated continuously from the day following the due date until the date immediately preceding the full payment date.
Specific payment deadlines and regulations on late payment interest must be clearly stated in the sales contract.
c) In case the auction is successful, and the purchase agreement has been signed, but the purchaser has not made the payment or has not paid the amount specified in the contract in full, the purchaser must continue to make the payment as per the contract. Within 03 working days from the date on which the payment is received, the infrastructure management authority shall send this payment to an escrow account in accordance with Article 25 hereof.
Cases where the purchaser has not paid the amount specified in the contract in full within the prescribed deadline shall be handled as specified in point b of this Clause.
d) The infrastructure management authority shall issue invoices for sales of public property to the purchaser as per laws on management and use of public property. The handover of asset to the purchaser shall be carried out at the location of the asset after the purchaser has completed the payment.
The infrastructure management authority shall perform asset reduction accounting in accordance with accounting laws; report asset changes as required by this Decree.
The management and use of the proceeds from the asset sale shall be carried out in accordance with Article 25 hereof and point a of this clause.
6. For maritime infrastructure assets that exist before the effective date of this Decree but have not yet been valued for accounting purposes in accordance with Decree No. 43/2018/ND-CP and guidance from the Ministry of Finance, the valuation of such assets must be completed within 12 months from the effective date of this Decree. Any tasks related to accounting or depreciation calculation for asset that have not been completed by the effective date of this Decree must be carried out in accordance with this Decree.
7. For maritime infrastructure assets assigned to maritime safety assurance service providers for management, if the maintenance is carried out in accordance with the maritime infrastructure asset maintenance plan approved by competent authorities before the issuance of Decree No. 43/2018/ND-CP and completed after Decree No. 43/2018/ND-CP takes effect (March 12, 2018) but has not been fully paid, funds for payment and final statement shall continue to be allocated from the state budget.
Article 31. Effect
1. This Decree takes effect from the date, which it is signed.
2. This Decree shall replace Decree No. 43/2018/ND-CP dated March 12, 2018 of the Government on the management, use, and operation of maritime infrastructure assets.
3. In case the legislative documents referred to in this Decree are amended or replaced, the newer documents shall apply.
4. In case the agencies and units mentioned in this Decree merge, consolidate, dissolve, or cease operations, resulting in a change in name, the new name of that agency or unit shall be used; in case of transferring tasks related to the management, use, and operation of maritime infrastructure assets specified herein to a new agency or unit, the new agency or unit shall perform such tasks.
Article 32. Implementation clauses
Ministers, Heads of ministerial agencies, Heads of Government agencies, Chairmen of People's Committees of provinces and centrally affiliated cities and Heads of relevant agencies, organizations, units, and enterprises are responsible for implementing this Decree.
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