Tiếng Việt| THE PRIME MINISTER | SOCIALIST REPUBLIC OF VIET NAM |
| No. 39/2008/QD-TTg | Hanoi, March 14, 2008 |
THE PRIME MINISTER
Pursuant to the December 25, 2001 Law on Organization of the Government;
Pursuant to the December 16, 2002 Law on the State Budget;
Pursuant to the November 25, 2005 Law on-Bidding:
Pursuant to the Governments Resolution No. 05/2005/NQ-CP of April 18, 2005, on stepping up the socialization of education, healthcare, cultural physical training and sports activities;
At the proposal of the Minister of Finance,
DECIDES:
Article 2. This Decision takes effect 15 days after its publication in CONG BAO.
Ministers, heads of ministerial-level agencies, heads of government-attached agencies, and presidents of Peoples Committees of provinces and centrally run cities shall implement this Decision
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PRIME MINISTER
Nguyen Tan Dung
ON BIDDING, PLACEMENT OF ORDERS FOR, AND ASSIGNMENT OF THE PROVISION OF, PUBLIC NON-BUSINESS SERVICES FUNDED WITH THE STATE BUDGET
(Issued together with the Prime Ministers Decision No. 39/2008/OD-TTg of March 14, 2008)
Article 1. Scope of regulation
This Regulation provides for the bidding, placement of orders for, and assignment of, the provision of public non-business services funded with the state budget or state budget-originated sources.
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1. State management agencies; agencies allocated with budget funds for providing public non-business services, agencies assigned to provide, or authorized to organize bidding (or place orders) for the provision of, public non-business services funded with the state budget.
2. Domestic and foreign organizations which have the legal person status, individual practitioners lawfully operating in Vietnam and having sufficient conditions for and the function of providing non-business services meeting the States requirements on the provision of public non-business services (below referred to as providers).
Article 3. Interpretation of terms
1. Public non-business service referred to in this Regulation is understood as activities catering for essential needs of the people and communities and falling under the States responsibility.
2. Placement of orders for public non-business services means the designation by state agencies of providers of public non-business services for the people and communities to meet requirements on these services quantity, quality, unit price and timing.
3. Bidding for public non-business services means the process of bidding to select public-service providers (organizations and individuals) possessing the best capacity and experience to provide public non-business services to meet requirements set by bid inviters on the basis of fair, transparent and effective competition.
1. The list of public non-business services funded with the state budget which are subject to bidding or placement of orders for provision is included in an Appendix to this Decision.
2. Based on the practical situation, the Ministry of Finance shall assume the prime responsibility for, and coordinate with concerned agencies in, submitting to the Prime Minister for decision the appropriate revision or addition of the list of public non-business services funded with the state budget which are subject to bidding or placement of orders for provision.
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3. For public non-business services funded with the state budget which are on the above list and identified as spending tasks of the central budget, if conditions do not yet permit the organization of a bidding (or placement of orders), heads of central agencies may decide to assign the provision of these services to public non-business units according to current regulations. For public non-business services funded with the state budget which are on the list and identified as spending tasks of local budget, presidents of provincial-level Peoples Committees may decide to assign the provision of these service to their attached public units according to current regulations.
BIDDING FOR THE PROVISION OF PUBLIC NON-BUSINESS SERVICES
Article 5. Conditions for identifying public non-business services subject to bidding
Bidding is organized for public non-business services when the following conditions are fully met:
1. Public non-business services are funded by the State.
2. Their users are identifiable.
3. Estimated funds are allocated.
4. Their standards and quality are identifiable.
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6. Their bidding has been decided by the head of a central agency (for public non-business services identified as spending tasks of the central budget) or by the president of a provincial-level Peoples Committee (for public non-business services identified as spending tasks of local budget).
Public non-business services which fail to fully meet the conditions for bidding may be put up for placement of orders under Clause 1, Article 18 of this Regulation.
1. Grounds for making a plan on bidding for a public non-business service.
a/ The public non-business service is subject to bidding.
b/ An estimated fund is allocated by competent authorities for the provision of the service.
c/ Related materials and legal documents.
2. Details of a bidding plan.
Depending on its nature and process of provision, a public non-business service may be divided into bidding packages. The division into bidding packages must ensure the entirety of the service. The details of a bidding package under a bidding plan include:
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b/ Standards and objectives of the bidding package;
c/ Price of the bidding package: The price of the bidding package must be formulated by the bidding organizer using current economic and technical norms and expense limits issued by competent state agencies;
d/ Form of selection of provider: bidding method;
e/ Form of contract;
f/ Source of funding: For each individual bidding package, the source of funding and method of payment to the provider must be clearly stated;
g/ Time of selection of provider: The time of organizing the selection of a provider for each bidding package to ensure the implementation schedule of the bidding package in accordance with the Bidding Law;
h/ Time of contract performance: The time of contract performance must ensure that the bidding package is performed in accordance with the progress of provision of the public non-business service.
3. Criteria for evaluation of dossiers of bids for the provision of public non-business services include:
a/ Criteria for providers of public non-business services.
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Criteria for evaluation of their management capacity and workforce to be involved in the provision of the public non-business service;
- Criteria for technical evaluation;
- Time of provision of public non-business services.
b/ Criteria for public non-business services.
Criteria for evaluation of the process of identifying the technology to form the public non-business service funded with the state budget;
Criteria for the price or price unit of the public non-business service;
Criteria for quality evaluation based on results or products of the service;
- Process and criteria for technical evaluation of the service.
4. Responsibilities of ministries, branches and localities in the issuance of criteria for evaluation of dossiers of bids for the provision of public non-business services:
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b/ Heads of central agencies shall:
Issue criteria for evaluation of bid dossiers and selection of providers for public non-business services identified as spending tasks of the central budget;
Issue model dossiers of bids for the provision of public non-business services in each domain;
Concretize criteria issued by line ministries for application to the bidding for the provision of public non-business services identified as their spending tasks.
c/ Presidents of provincial-level Peoples Committees shall base themselves on criteria for evaluation of dossiers of bids for the provision of public non-business services issued by ministries under Point a, Clause 4 above, to issue specific criteria for evaluation of bid dossiers and selection of providers for public non-business services identified as spending tasks of local budget which are appropriate to their practical conditions.
1. Submission of bidding plans for approval:
Agencies assigned to organize bidding for the provision of public non-business services funded with the state budget shall submit bidding plans to persons competent to approve bidding plans for consideration and approval (prescribed below), and concurrently send these plans to bidding appraisal agencies, organizations or sections specified in Article 8 of this Regulation.
2. Competence to approve bidding plans:
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b/ Presidents of provincial-level Peoples Committees are responsible for approving bidding plans for the provision of public non-business services identified as spending tasks of local budget.
3. Competence to approve bid invitation dossiers and results of selection of providers:
a/ Ministers or heads of central agencies are responsible for approving or authorizing heads of attached lower-level units to approve, on the basis of reports of appraisal agencies, bid invitation dossiers and results of selection of providers of public non-business services ordered by the State, for public non-business services identified as spending tasks of the central budget.
b/ Presidents of provincial-level Peoples Committees are responsible for approving or authorizing heads of attached specialized units or agencies to approve, on the basis of reports of appraisal agencies, bid invitation dossiers and results of selection of providers of public non-business services ordered by the State, for public non-business services identified as spending tasks of local budget.
Article 8. Appraisal in bidding
Appraisal in bidding includes appraisal of bidding plans, appraisal of bid invitation dossiers and appraisal of results of selection of contractors.
1. Appraisal agencies, organizations and sections:
a/ Heads of central agencies shall organize appraisal in bidding for the provision of public non-business services funded with the state budget; or decide on agencies, organizations or sections to organize the appraisal of bidding plans, bid invitation dossiers and results of selection of providers.
b/ Presidents of provincial-level Peoples Committees shall organize appraisal in bidding for the provision of public non-business services funded with the local budget; or decide on the decentralization of provincial-level Finance Services or relevant specialized services to organize the appraisal of bidding plans, bid invitation dossiers and results of selection of providers.
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a/ Agencies, organizations and sections assigned to appraise bidding plans shall examine and assess matters specified in Articles 5 and 6 of this Decision and send appraisal reports to persons competent to approve bidding plans.
b/ The duration of appraisal in bidding is 20 (twenty) days at most, counting from the date of receipt of complete and valid dossiers.
Article 9. Expenses in bidding
Pursuant to legal provisions on bidding, the Ministry of Finance shall issue specific regulations and guidance on selling prices of bid invitation dossiers, expenses for appraisal of results of selection of contractors and expenses for advisory councils to deal with petitions of contractors-concerning results of selection of contractors for each type of public non-business service funded with the state budget.
Article 10. Forms of selection of providers
1. Open bidding: Open bidding is obligatory for public non-business services funded with the state budget which are subject to bidding.
2. Restricted bidding: Restricted bidding is applied to public non-business services involving high technical requirements or of a special nature and those to be provided on a research or experimental basis for which the number of providers capable of meeting requirements of bidding packages is limited.
3. Designation of contractors: Designation of contractors is applied to public non-business services using state budget funds valued at under VND 500 million. Designation of contractors must be decided by persons competent to approve bidding plans specified in Article 7 of this Regulation.
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2. Presidents of provincial-level Peoples Committees shall decide on the organization of bidding for the provision of public non-business services; or decide on the decentralization of heads of attached specialized agencies to organize bidding for the provision of public non-business services identified as spending tasks of the local budget.
Article 12. Conditions on organization of bidding and bidding participation
1. Bidding for the provision of public non-business services may be organized only when the following conditions are fully met:
a/ The plan on bidding for the provision of the public non-business service has been approved by a competent state agency;
b/ The bid imitation dossier has been approved by a competent person.
The bid inviter shall supply bid invitation dossiers to providers wishing to participate in the bidding. Such a bid invitation dossier must not contain any condition aiming to restrict participation of providers or create an advantage for any or some providers, which causes unfair competition.
For public non-business services eligible for designation of contractors, such designation must be planned and approved in the bidding plan and their estimated prices must be approved;
c/ Bidding information has been published in accordance with the bidding law;
d/ An estimated fund for the provision of the public non-business service has been allocated.
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a/ Having the function of providing services similar to the public non-business service put up for bidding;
b/ Having a certificate of registration of business lines relevant to the public non-business service put up for bidding;
c/ Having the legal person status (for providers being domestic and foreign organizations and units);
d/ Not having an unhealthy financial status, not being in a state of bankruptcy or not being insolvent or not being in the process of dissolution as concluded by a competent agency;
e/ Having paid a bidding guarantee sum as requested by the biding organizer;
f/ Meeting the requirements set forth in the bid inviters bid invitation notice or letter.
Article 13. Organization of bidding
1. Issuance of bid invitation dossiers: The bid inviter shall sell bid invitation dossiers before the time of bidding closure to providers on the list of those invited to participate in the bidding at the price prescribed by the Ministry of Finance. Bid invitation notices must be published at least 10 days before the date of issuance of bid invitation dossiers.
2. Preparation of bid dossiers: Providers shall prepare bid dossiers as requested by the bid inviter and submit them together with a bidding participation security sum. A provider who wishes to change its status (name) of bidding participation declared at the time of purchase of a bid invitation dossier or registration of bidding participation shall notify it in writing to the bid inviter. The bid inviter shall consider such change only when it receives the written notice before the time of bidding closure.
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3. Receipt and management of bid dossiers: The bid inviter shall receive and manage submitted bid dossiers according to regulations on management of secret dossiers. Bid dossiers sent to the bid inviter after the time of bidding closure shall be regarded as invalid and returned in their original conditions to the providers. Any documents sent by providers after the time of bidding closure for modifying and supplementing bid dossiers shall be regarded as invalid (except for documents explaining bid dossiers).
4. Modification or withdrawal of bid dossiers: A provider that wishes to modify or withdraw its bid dossier already submitted shall make a written request. The bid inviter may accept such written request only when it receives it before the time of bidding closure. A written request for withdrawal of a bid dossier must be sent separately from the bid dossier.
5. Opening of bids:
a/ Bids must be publicly opened immediately after the time of bidding closure at the time and venue indicated in the bid invitation dossier and in the witness of present persons regardless of the presence or absence of invited providers. The bid inviter may invite representatives of related agencies to attend the bid-opening ceremony.
b/ The bid inviter shall open the dossiers of providers one by one in the alphabetic order of the names of contractors and the following process:
- Checking the seal;
- Opening the dossier, read and write in a minutes the following principal information:
+ Name of contractor;
+ Number of original and photocopied sets.
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+ Document proposing dossier modification, if any;
+ Other relevant information.
The bid opening minutes must be signed by providers, representatives of the bidding organizer and related agencies.
6. Matters concerning bidding information and handling of bidding and other matters not mentioned in this Regulation comply with the Bidding Law and its guiding documents.
Article 14. Evaluation of bid dossiers
1. Bidding organizers shall evaluate bid dossiers for public non-business services funded with the state budget. Evaluation of bid dossiers must be based on criteria for evaluation of bid dossiers and other requirements set forth in bid invitation dossiers to ensure that providers that are fully capable and experienced and have feasible solutions are selected to provide public non-business services.
2. Method of evaluation of bid dossiers
A mark scale shall be used to evaluate and rank bid dossiers.
3. Ways of evaluation:
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b/ Evaluation of technology to provide the public non-business service;
c/ Quantity, quality and time of provision of the public non-business service;
d/ Financial evaluation according to criteria for financial evaluation stated in the bid invitation dossier.
Article 15. Prices of bidding packages, bids, successful bids and contractual prices
1. Price of bidding package is the value of a bidding package determined in the plan on bidding for the provision of a public non-business service on the basis of a cost estimate already approved by a competent person or the price set by a registered appraisal agency.
The price of a bidding package is formulated by the bidding organizer on the basis of current economic and technical norms and expense limits issued by competent state agencies.
2. Bid is the price offered by a contractor in the bid dossier after subtracting price reductions (if any), which covers all expenses necessary for performing a bidding package, including all taxes, charges, fees and financial obligations prescribed by law to be paid by the contractor when performing the bidding package.
3. Successful bid is the price approved on the basis of bidding results for use as a basis for the bid inviter to negotiate, finalize and sign a contract with the successful bidder. The successful bid must not exceed the price of the bidding package stated in the approved bidding plan.
4. Contractual price is the price agreed upon by the bid inviter and the successful bidder after negotiating and finalizing a contract and not exceeding the successful bid.
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For public non-business services in the training, vocational training and healthcare domains and other public non-business services for which charges and fees are collected according to regulations, the amount of collected charges and fees will be included in the prices of bidding packages, bids, successful bids and contractual prices. Service providers may collect these charges and fees from service users in accordance with law.
1. After bidding results are approved by competent persons, bidding organizers and service providers shall sign contracts in accordance with law.
2. Contractual terms must comply with the contents prescribed in bid invitation dossiers and current laws.
In addition, the parties may reach agreement to add other contractual terms which must not contravene law.
3. In the course of performance of a contract, if there arise any circumstances causing difficulties to contract performance, the bid inviter and provider shall report them to a competent agency for consideration and decision.
Article 17. Rights and obligations of providers
Service providers that are selected to provide services have the following rights and obligations:
1. To properly and fully perform the signed contract on delivery and receipt of the provision of the public non-business service; to have rights and obligations as stipulated in the contract and relevant laws.
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3. To pay all taxes, charges and fees in accordance with current laws.
4. To submit to the examination and supervision by competent state agencies.
PLACEMENT OF ORDERS FOR THE PROVISION OF PUBLIC NON-BUSINESS SERVICES
Article 18. Conditions on placement of orders for the provision of public non-business services
1. Public non-business services funded with the state budget which do not meet all bidding conditions (specified in Article 5 of this Regulation) or bidding is impossible because there is only one provider; scientific schemes and projects for which state budget funds are allocated and placement of orders is decided by competent state agencies.
2. Providers that receive orders for the provision of public non-business services funded with the state budget must be capable in terms of capital, production technology level, management ability and workforce to meet the requirements of contracts on placement of orders for the provision of public non-business services.
1. Heads of central agencies may decide on the placement of orders for public non-business services which do not meet all bidding conditions, and scientific research schemes and projects for which funds are allocated from the central budget; may authorize heads of attached specialized agencies to place orders for the provision of public non-business services identified as spending tasks of the central budget.
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Article 20. Placement of orders for public non-business services
1. Grounds for order placement:
a/ The decision of a person competent to decide on the placement of orders for public non-business services funded with the state budget.
b/ Unit price or price of the public service provided under a placed order, which is determined on the basis of current economic and technical norms and expense limits issued by competent agencies. For public non-business services subject to price appraisal by the State, orders are price appraisal notices of price management agencies according to the Governments regulations detailing the implementation of a number of articles of the Price Ordinance and relevant provisions of law;
c/ Quantity, volume and quality of the public non-business service to be provided according to criteria approved by a competent person;
d/ Time of provision and completion;
e/ Cost estimate allocated by a competent person.
2. Terms of contracts on placement of orders for production and provision of public non-business services:
On the basis of characteristics of ordered public non-business services, service-ordering agencies shall sign with providers contracts with the following principal details:
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b/ Quantity or volume;
c/ Quality;
d/ Price, unit price;
e/ Quantity, volume of the public non-business service or scientific research scheme or project;
f/ Contractual value;
g/ Time of completion;
h/ Methods of take-over test and payment;
i/ Responsibilities and obligations between the ordering agency and provider;
j/ Liabilities of the parties for contract breaches.
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Article 21. Adjustment of the value of contracts on placement of orders
The value of a order placement contract may be adjusted when so permitted by a competent agency in the following cases:
1. The State adjusts economic and technical norms and expense limits applicable to state budget allocations for public non-business services or scientific and technological schemes and projects.
2. The State changes salary mechanisms and policy and prices of raw materials and fuels.
1. Elaboration of estimates: On the basis of tasks and contents of public non-business service put up for bidding or ordered and the decentralization by ministries and localities, units at all levels shall elaborate state budget estimates for these services in each year in accordance with the Law on the State Budget currently in force.
2. Distribution and allocation of budget estimates for bidding for the provision of public non-business services: On the basis of budget estimates decided by competent persons, budget estimates allocated to attached units must clearly indicate budget estimates to be used for bidding and placement of orders for public non-business services.
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4. Providers, after having successfully bid or received orders for the provision of public non-business services, shall monitor and separately account funds received for such successful bid or order, and fulfill all financial obligations (if any).
5. For public non-business services for which charges are allowed to be collected from users, providers shall monitor and fully reflect the collected charge amounts and settle them together with funds provided from the state budget according to current regulations.
6. Any positive difference between revenues and expenses arising from a contract on the provision of a public non-business service is handled as follows:
a/ For providers that are public non-business units, they may use this difference at their disposal under the Governments Decree No. 43/2006/ND-CP of April 25, 2006.
b/ For providers that are individuals or non-public units, they may decide on how to use this difference after fulfilling financial obligations towards the State.
Article 23. Payment for contracts on provision of public non-business services
1. On the basis of results of provision of public non-business services and the signed contracts, bid-inviting and order-placing agencies or units shall test before taking over products of public non-business service and make payment according to current regulations. Agencies that organize bidding for or order the provision of public non-business services funded with the state budget shall make payment and settlement for these services with their allocated budget funds.
2. The order and procedures for payment and settlement for public non-business services for which bidding is organized or orders are placed by the State comply with the Governments Decree No. 60/2003/ND-CP of June 6, 2003, detailing and guiding the implementation of the Law on State Budget and guiding documents.
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2. The process of allocation of budget estimates and procedures for payment and settlement for public non-business services assigned by the State comply with the Governments Decree No. 60/2003/ND-CP of June 6, 2003, detailing and guiding the implementation of the Law on State Budget and guiding documents.
Article 25. Organization of examination and supervision of implementation
1. For state management agencies:
a/ Heads of central agencies shall organize examination, monitoring and supervision of the bidding or placement of orders for the provision of public non-business services identified as spending tasks of the central budget.
b/ Presidents of provincial-level Peoples Committees shall organize examination, monitoring and supervision of the bidding or placement of orders for the provision of public non-business services identified as spending tasks of local budget.
2. For finance agencies: Finance agencies at all levels shall perform the state management of financial matters in the bidding and placement of orders for the provision of public non-business services funded with the state budget. State treasuries shall control spending and make payment according to contracts on bidding or placement of orders for the provision of public non-business services, and send monthly, quarterly and annual reports on the implementation to finance agencies of the same level.
Article 26. Handling of violations and disputes
1. Organizations and individuals committing violations of the law on bidding and placement of orders for the provision of public non-business services funded with the state budget shall, depending on the severity of their violations, be sanctioned in one, some or all of the following forms: caution, fine and ban from participation in bidding activities. Cadres and public employees violating the bidding law shall be handled in accordance with the law on cadres and public employees.
Heads of central agencies and presidents of provincial-level Peoples Committees may issue decisions to sanction violations related to bidding. Sanctioning decisions shall be sent to sanctioned organizations or individuals and related agencies and organizations. Sanctioning decisions take effect nationwide and in all branches.
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3. Any disputes between bidding organizers and providers shall be settled by themselves through negotiation: if no agreement can be reached, they will be settled by a court in accordance with law.
4. Organizations or individuals sanctioned for violations of the law on bidding for the provision of public non-business services may lodge complaints in accordance with the law on complaints and denunciations or initiate lawsuits in accordance with law.
Article 27. Organization of implementation
1. Pursuant to this Regulation, ministers, heads of ministerial-level agencies, heads of other central agencies, and presidents of provincial-level Peoples Committees shall issue specific regulations applicable to their ministries, branches or localities.
2. The Minister of Finance shall guide ministries, ministerial-level agencies, government-attached agencies and provincial-level Peoples Committees to implement this Regulation.
PRIME MINISTER
Nguyen Tan Dung
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LIST OF PUBLIC NON-BUSINESS SERVICES FUNDED WITH THE STATE BUDGET AND SUBJECT TO BIDDING OR ORDER PLACEMENT
(Attached to the Prime Ministers Decision No. 39/2008/QD-TTg of March 14, 2008)
1. Vocational training to serve economic branches according to targets set by the State.
2. Training of teachers for high-quality public universities and colleges.
3. Pre-university training of ethnic minority pupils.
4. Training of university, college and professional secondary students.
5. Compilation of teaching materials.
6. Teaching of foreign languages for students before going to study abroad under state programs and plans.
7. Training of foreigners studying in Vietnam.
8. Training of specialists according to requirements of branches and domains.
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10. Composition and compilation of books, newspapers, magazines and cultural publications serving the States tasks.
11. Foreign-service communication on particular subjects.
12. Communication serving the States ethnic minority policies on particular subjects.
13. Publishing of books and newspapers on particular subjects serving the States irregular political tasks.
14. Supply of books, newspapers and cultural products for mountainous areas and ethnic minorities people under the States programs.
15. Provision of logistics services for national sports teams during training and competition periods.
16. High-achievement competition training under orders placed by the State (in the sports and vocational training domains).
17. Organization of opening and closing ceremonies for major national events, organization of sports and cultural and other festivals (including logistics services, support service and so on).
18. Scientific and technological programs, schemes, projects and tasks (including scientific and technological services).
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20. Land surveys serving the grant of land use rights certificates.
21. Provision of services of testing chemicals and cosmetics, pharmaceuticals, food hygiene and safety, quality of vaccines and medical biologicals.
22. Provision of preventive medicine activities (chemical impregnation and spraying, handling of the environment against epidemics, immunization).
23. Auction of public assets.
- 1 Circular 105/2008/TT-BTC of November 13, 2008, guiding a number of articles of the Prime Ministers Decision No. 39/2008/QD-TTg of March 14, 2008, on bidding, placement of orders for, and assignment of the provision of, public non-business services funded with the state budget.
- 2 Decree no. 43/2006/ND-CP of April 25, 2006 providing for the right to autonomy and self-responsibility for task performance, organizational apparatus, payroll and finance of public non-business units
- 3 Law no. 61/2005/QH11 of November 29,2005 on tendering
- 4 Decree no. 60/2003/ND-CP of June 06, 2003, detailing and guiding the implementation of the state budget law
- 5 Law No.01/2002/QH11 of December 16, 2002 state budget Law