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Ministry of Socialist Republic of Vietnam
Construction Independence-freedom-Happiness
Ref.1647/BXD-KH
Hanoi, November 7th, 1994.
- Pursuant to Decree 33-CP dated April 19, 1994 of the Government on state management in respect of import-export businesses;
- Pursuant to Decree 38-CP dated May 4, 1994 of the Government on preliminary renovation of procedures for resolving daily routine for citizens and organizations;
- Having considered proposal of the Head of Planning and Statistics Department;
Decides
Article 1 :
To promulgate in conjunction with this Decision Statute on management of import-export businesses in the field of construction industry.
Article 2 :
This Statute shall come into force as from the date of signing.
Article 3 :
The Head of Planning and Statistics Department is responsible for giving guidance on the implementation of this Statute.
Heads of enterprises under management of Ministry of Construction and competent departments of the Ministry shall take charge for the implementation of this Statute.
for The Ministry of Construction Vice Minister NGUYEN MANH KIEM (Signed)
Article 1 :
This Statute is to be applied to import-export activities carried out within the competence of Ministry of Construction.
1. Import - Export goods in the field of construction industry include : equipment package, single equipment, technology conveyers, materials, spare parts and replacements imported or exported by enterprises directly dependent on Ministry of Construction. These enterprises may be either such enterprises which are specialized in import - export businesses or otherwise non-specialized enterprises which are allowed by Ministry of Construction and the State to import/export directly for production/business pu rposes and satisfaction of social needs, as well as to export such manufactured or processed product which may be acceptable in foreign markets.
2. The following forms may also be classified as import-export activities in the field of construction industry :
+ Re-exportation, re-importation, switch trade, transit of goods conducted by enterprises mentioned in 1. above;
+ Processing, fabricating of goods or semi-product on foreign orders or doing the same by means of hiring foreign labor force;
+ Acting as agent for sales of goods, assigning and being assigned to import/export goods for domestic and foreign enterprises.
Article 2 :
In principle, the State management of import-export activities in the field of construction industry shall have to :
+ Conform and be in accordance with applicable laws and State's policies on import/export, with international trade practice;
+ Ensure business self-determination and initiativeness of enterprises and effectiveness of State management.
Article 3 :
1. Project investors, who conduct importation of machinery, equipment package, single equipment, special equipment, technological conveyers and materials financed by State budget, must abide by Decision 91/TTG dated November 13, 1992 and Decree 177-CP dat ed October 10, 1994 of the Government.
2. In the event that the importation/exportation of machinery and equipment is financed by other sources of capital the project investors shall have to submit their applications to Ministry of Construction which shall in respect of that consider the same and related procedures in accordance with currently applicable laws on import/export businesses.
Article 4 :
1. "Import/export business unit" means, in the field of construction industry, such a business unit which is approved by Ministry of Construction and to which Ministry of Trade has granted a permit to do business in importing/exporting a volume of goods a s may be necessary for carrying out production and business of construction industry provided conditions contained in Article 6.1 of this Statute are satisfied.
2. "Equipment export business unit" means, in the field of construction industry (in particular in respect of single equipment and equipment package), such a business unit which is approved by Ministry of Construction and to which Ministry of Trade has gr anted a permit to do business in importing equipment provided conditions contained in Article 7.1 and 7.2 of this Statute are satisfied.
Article 5 :
1. "Import/export business" in the cases of import/export business units and "equipment export business" in the cases of equipment export business units in the field of construction industry mean a process which includes the contacting, negotiating, signi ng and realizing of goods purchase and service provision contracts relating to needs in the purchase of goods by such enterprises which are permitted by Ministry of Construction and the State in relationships with foreign partners.
2. Permission to do business in import/export of equipment may be granted to an enterprise specialized in doing the same or to a project investor having satisfied all conditions stipulated in Article 9.3 of this Statute for purposes of importation by itse lf/himself of certain import items necessary for the development of projects or objects as approved, or to an enterprise with foreign invested capital conducting its activities under the Law on foreign Investment in Vietnam.
Chapter II Conditions and procedures for licensing import/export business and equipment export business
Article 6 :
To carry out import/export business in the field of construction industry, the traders shall have first obtained a import/export business license issued following an official request from Ministry of Construction indicating in detail all import/export ite ms being within management competence of construction industry authorities.
1. To obtain the import/export business license, a business unit shall have satisfied the following conditions :
+ It was legally established and it undertakes to abide by currently applicable laws;
+ Its working capital is upon registration of business activities equivalent to US$ 200,000 as minimum, except for business units which trade items promoted for export or not requiring large capital in which case the figure may be US$ 100,000;
+ Its activities are limited within the scope of business as registered;
+ Its staff are qualified and professional enough to do business, to sign and realize commercial contracts in conformity with the business unit's size and business scope.
2. To register business activities, the following documentation shall be submitted to Ministry of Construction (to its Planning and Statistics Department) including :
+ Application for import/export business licensing (with a form to be filled up);
+ Decision of establishment of state enterprise and (in the cases of enterprises to which juridical status is to be added with import/export function) Decision of Minister of Construction to that effect following a written approval from National Science a nd Technology Committee;
+ Charter of the enterprise or its detailed proposal for organization and conduct of import/export activities;
+ Capital Allocation Process-Verbal as certified by competent state management authority;
+ Copy documentation certifying commercial qualification of the enterprise's staff who are assigned to carry out import/export operations.
3. To be permitted for business in importation of single equipment, a business unit shall have obtained from Ministry of Trade import business license in accordance with Article 5, Decree 33-CP dated April 19, 1994 of the Government, detailing items to be imported.
Article 7 :
1. To obtain permission for business in importation of equipment package, a business unit shall have, besides conditions stipulated in Article 6.1 above, to satisfy the following conditions subject to the consent of Ministry of Construction and the approv al of Ministry of Trade :
a) The personnel have technical and professional capability and commercial qualification and familiar with international practice in equipment importation business;
b) The business unit has at least 5 years' experience in trading single equipment and machinery and total value of its import volume each year is not less than US$ 5 million;
c) The business unit has the working capital of at least US$ 500,000 as at the time of registration of equipment import business.
2. To register business in importation of equipment package, the business unit shall have to file to Ministry of Construction (its Planning and Statistics Department) with the following :
+ Application for business in importation of equipment;
+ Import/export business license granted by Ministry of Trade classifying equipment and machinery for construction to be import/export;
+ Legal documentation certifying its working capital (which includes state allocated capital and its own capital);
+ Balance - sheet for 5 last years;
+ Organizational chart of business apparatus and personnel who are capable of carry out import/export operations.
Article 8 :
Within 15 days as from the date of receiving the duly-established file Ministry of Construction shall deliver to Ministry of Trade its request in writing for issuance of import/export business or equipment import business license to the business unit conc erned. In the event Ministry of Construction does not make its consent to the business unit's request, it shall give notice in writing to that effect to the business unit.
Article 9 :
1. To meet a need for import of equipment for a approved project, the project investor shall file his application to Ministry of Construction and (in the cases of such investment projects which are required to organize a tender in accordance with Circular 04/TM-DT dated July 30, 1993 of Ministry of Trade) duly-established documentation on results of the tender for purchasing equipment. After consideration, Ministry of Construction shall deliver its official request in writing for consideration and decisi on based on the following principles :
+ If the project investor applies for direct importation, Ministry of Construction shall make its decision based on conditions stipulated in Article 7 Clause 1 Section 1;
+ If the project investor request that the importation be carried out by any of Ministry of Construction's enterprises to which Ministry of Trade has granted permission to do business in relevant group of import items, then Ministry of Construction shall approve the project investor's request. In the events the project investor presents no request for that purpose or his request is irrelevant, Ministry of Construction shall decide the appointment of such an importer which is in its legal opinion appropr iate for that purpose.
2. Within 10 days as from the date of receiving from the project investor all the duly-established documentation Ministry of Construction shall deliver to Ministry of Trade a request in writing, indicating the enterprise which will carry out the importati on operation in conformity with the above principles.
Article 10 :
1. The business in importation of equipment may be carried out only such business units to which Ministry of Construction has allowed and to which Ministry of Trade has granted permission to do so. Other enterprises which have a need for importation of eq uipment shall assign an authorized importer to do the same with purpose to link the importer's responsibility with project investor's in view to ensure the quality of imported items, the consistence of price, and the speed of development for the project.
2. In special cases the assign may be made to a business unit which is not under the management of Ministry of Construction. In these cases project investors shall have before signing any assignment contract to make clear explanation to that effect, toget her with its proposal on the plan and form of assignment.
Chapter III Approval of goods purchase contracts and equipment import contracts
Article 11 :
1. Any contract on purchasing commercial goods in the field of construction industry shall come into effect only after obtaining necessary approval from competent authorities. An economic organization may enter into a commercial goods purchase contract on ly after obtaining official written consent of Ministry of Construction and import/export business license (or quota) from Ministry of Trade. The signatory in such a transaction may be the director or other person who was authorized by the director in wri ting.
2. Any commercial goods purchase contract in the field of construction industry shall not have any validity if its is entered into by economic organizations which are not granted permission to do business in import/export business. These organizations may have negotiations with foreign economic organizations only together with duly authorized organizations which may be assigned by them to enter into such a contract, as the case may be (except for the cases provided for in Article 9.3 of this Statute).
3. Procedures and requirements for approval of commercial goods purchase contracts in the field of construction industry shall be based on the guidance of Decision 299/TMDL-XNK dated April 9, 1992 of Ministry of Trade.
Article 12 :
1. Any contract for provision of package equipment for a project, whichever the financial sources are and whatever the value of the project is, shall have to be evaluated by Ministry of Construction after which it shall be evaluated by relevant state eval uation bodies for consideration and approval.
2. In the cases of contracts for importation of single equipment, both used and unused :
+ If the importer is a Ministry of Construction's import/export trader which has been licensed to carry out its activities in the field of construction machinery and equipment then it shall have right to determine on its own discretion all the contracts p rovided that the unit cost for each item is lower than US$ 10,000 and/or total contracted value is lower than US$ 500,000.
+ If the importer is not directly dependent on Ministry of Construction or if it is a project investor who is permitted by Ministry of Trade to import directly equipment in accordance with Article 9.3 then the project investor shall have to submit the con tract to Ministry of Construction who, after consideration, will apply the same for consideration and approval to relevant competent state authorities provided that the unit cost for each item is equal to or more than US$ 10,000 and/or total value contrac ted equal to or more than US$ 500,000.
Article 13 :
1. Any file relating to an equipment import contract to be submitted to Ministry of Construction (its Planning and Statistics Department) shall comprise :
+ Written approval of the investment project;
+ Process - Verbal with conclusion made by bidding council (in the cases where a bid for purchasing equipment is required);
+ (Original) equipment import contract signed by both the buyer and the seller, executed in foreign language and Vietnamese language (or translation thereof);
+ Catalogues or technical specifications;
+ At least 3 offers from different suppliers;
+ Contract for assignment for importation of equipment (in the cases of assignment).
2. Duration for completion by the parent ministry of all necessary procedures and approval shall not exceed 10 days for single equipment and 15 days for equipment package, from the date of receiving all duly established documentation form the project inve stor.
Chapter IV Management Measure
Article 14 :
Ministry of Construction as the parent body is responsible for coordination with Ministry of Trade in conducting the management of import/export activities in the field of construction industry, including :
1. Guiding and directing organizations directly dependent on it in view to abide by the State's policies and regulations on management of import/export activities within the field of construction industry;
2. Proposing to make readjustments in policies and management measures applied to import/export activities, taking into account specific features of each economic -technical sector in conformity with principles of ensuring self-determination of the trader s in their business and ensuring consistent management by the State;
3. Revising from time to time import/export activities carried out by business units directly dependent on the Ministry, and applying measures as may be appropriate to such business units which are not able to continue its business activities or which has committed any breach of law in the course of its activities.
Article 15 :
1. During the time of preparation for annual plan, the Planning and Statistics Department, based on major plans and policies of the State and of the branch, shall give specific requirements to business units. Business units, comparing against projections predetermined for them in document No. 1598/BXD-KH dated December 4, 1993 of Ministry of Construction, have to fulfill their obligations in summarizing their import/export activities and submit the same to Ministry of Construction semi-annually and annual ly.
2. Ministry of Construction has to :
+ establish a list of such items which are to be managed by means of quota procedures or which are important, essential and thereof oriented with priority in the State's policy on import/export, or which are specific import/export items as may be defined by relevant competent bodies;
+ submit the above-mentioned to State Planning Committee who will with collaboration of Ministry of Trade make a summary and submit the same to Prime Minister for consideration and approval; and
+ in coordination with Ministry of Trade directly supervise and control the realization of quotas given as well as the transactions with priority-orientated and specified items.
3. The import/export of planning-oriented items such as cement, clinker, explosive, cars with less than 12 seats and spare parts thereof, two-wheel motorbikes and spare parts thereof, are for the meantime subject to provisions of Interministerial Circular 09/TT-LB dated November 16, 1993 of Ministry of Construction and Ministry of Trade and Circular 04/TM-XNK dated April 4, 1994 of Ministry of Trade.
Article 16 :
Provisions of Decision 1064/TM-CP dated August 18, 1994 shall be applied to re-exportation and switch trade. Assigned import/export transactions to be carried out amongst domestic juridical persons shall be subject to provisions of Decision 1172/TM-XNK da ted November 22, 1994 of Minister of Trade.
Article 17 :
If a business unit has any sales office, branch or subsidiary abroad, or is assigned to import/export goods for domestic and foreign business units, or otherwise participates in any fair, exhibition, seminar or commercial advertising activity then it shal l have to abide with the State's currently applicable laws. Ministry of Construction conducts its management and control in respect of import/export through the licensed business unit as the counterpoint of the whole transaction.
Article 18 :
Import/export activities of businesses with foreign invested capital under the laws on foreign investment in Vietnam are subject to provisions of the Government's Decree 18-CP dated April, 1993 and implementing Circulars 03/TM-DT dated July 2, 1993 of Min istry of Trade, 10/TCHQ-PC dated June 15, 1993 of General Customs Office, 1621/UB-LXP dated August 5, 1993 of SCCI. The State management in respect of import/export operations of these businesses shall be conducted by Ministry of Construction as parent bo dy initial period when the business is being established, and as economic -technical superior authority for the period of their operation, trading and distribution.
Article 19 :
1. Import/export activities of other branches and of the country's localities with construction-related items shall not be subject to this Statute. As the superior branch authority, Ministry of Construction authorizes Planning and Statistics, in coordinat ion with relevant competent bodies and based on currently applicable provisions of law on import/export activities, to make guidance for other branches and the country's localities (at their request) in view to follow duly and fully all procedures for imp ort/export in the field of construction industry.
2. If there is any other form of import/export activity which has not been provided for in this regulatory document, provisions of other currently applicable laws and regulations of Ministry of Trade shall apply.
Chapter V implementation provision
Article 20 :
1. This Statute shall come into force as from the date of signing
2. Heads of organizations directly independent on Ministry of Construction, heads of business units specialized in import/export activities, other business units having been licensed by Ministry of Construction and Ministry of Trade to import/export direc tly for their needs, and relevant competent departments are responsible for the implementation of this Statute.
3. Any breach of provisions of this Statute and provisions of the State's regulatory documents on management of import/export business shall be handled in accordance with currently applicable laws.
Article 21 :
The head of Planning and Statistics Department is responsible for guiding and supervising the implementation of this Statute. If any irrelevancy is found in the course of implementation then relevant departments of Ministry of Construction, import/export business units and other economic organizations directly independent on the Ministry are kindly requested to give a notice on the same to Planning and Statistics Department who will consider the case and report to the Ministry authority for resolution.
for The Ministry of Construction
Vice Minister
Nguyen Manh Kiem