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THE
GOVERNMENT
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SOCIALIST
REPUBLIC OF VIET NAM
Independence - Freedom - Happiness
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No:
52/1999/ND-CP
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Hanoi,
July 8, 1999
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DECREE
PROMULGATING THE REGULATION ON INVESTMENT AND CONSTRUCTION
MANAGEMENT
THE GOVERNMENT
Pursuant to the Law on Organization of the
Government of September 30, 1992;
At the proposals of the Minister of Construction, Minister of Finance and
Minister of Planning and Investment,
DECREES:
Article 1.- To
promulgate together with this Decree the Regulation on Investment and
Construction Management which shall replace the Regulation on Investment and
Construction Management issued together with Decree No. 42/CP of July 16, 1996
and Decree No. 92/CP of August 23, 1997 of the Government.
Article 2.- This Decree
takes effect 15 days after its signing.
Article 3.- The Minister
of Construction shall assume the prime responsibility and coordinate with the
Ministry of Planning and Investment, the Ministry of Finance, the State Bank of
Vietnam and concerned ministries as well as branches in guiding and inspecting
the implementation of the Regulation on Investment and Construction Management
issued together with this Decree.
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ON BEHALF OF THE GOVERNMENT
PRIME MINISTER
Phan Van Khai
REGULATION
ON INVESTMENT AND CONSTRUCTION MANAGEMENT
(Issued
together with Decree No. 52/1999/ND-CP of July 8, 1999 of the Government)
Chapter I
GENERAL PROVISIONS
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1. To encourage various economic sectors to
invest in production and business in conformity with the strategy and planning
for national socio-economic development in each period in order to restructure
the economy along the direction of industrialization and modernization, to
boost the economic growth rate and raise the material and spiritual life of the
people.
2. To use the State-managed investment capital
sources with optimal efficiency against corruption and waste.
3. To ensure that the construction is carried
out according to the construction and architectural planning and satisfies the
requirements of durability, beautiful looks and ecological environment
protection; to create environment for healthy competition in construction; to
apply advanced technologies, to ensure the construction quality and time-table
with reasonable costs, to provide warranty for construction works.
Article 2.- Basic
principles in the investment and construction management
1. To clearly define the State’s
management function and assign the responsibility for investment and
construction management in conformity with each kind of investment capital
source and investors. To manage the investment and construction according to
projects, planning and law.
2. Investment projects financed by State-budget
capital, State-guaranteed credit capital, the State�s
development investment credit capital and the State enterprises’
investment capital must be strictly managed according to the investment and
construction order prescribed for each kind of capital.
3. With regard to investment and construction
activities of people, the State shall only manage the planning, architecture
and ecological environment.
4. To clearly define the responsibilities and
powers of State management bodies, investors, consulting organizations and
contractors in the investment and construction process.
Article 3.- Objects
and scope governed by the Regulation on Investment and Construction Management
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a) Investment projects for construction,
renovation, overhaul or upgrading of already invested and built projects;
b) Investment projects for the procurement of
assets including equipment and machinery not to be installed and new scientific
and technological products;
c) Projects using State-budget capital for the
planned development of regions and territories, the planned development of
branches as well as the planned urban and rural construction;
d) Construction works using State-budget capital
but without having to elaborate the investment projects;
e) Investment and construction objects without
using the State capital.
2. Scope of regulation:
a) For investment projects of State bodies or
State enterprises, which use the State-budget capital, the State-guaranteed
credit capital, the development investment credit capital of the State and/or
the investment capital of the State enterprises, the State shall manage the
investment and construction through its decision on investment after such
projects are appraised in term of branch development plans, urban and rural
construction plans, construction norms and standards, the use of land and
resources, the ecological environment protection (depending on requirements for
each type of project), as well as in term of financial plans, prices and
investment efficiency of the projects;
b) For investment projects of enterprises, which
use the State’s
development investment credit capital, the State’s regulations on development investment
credits shall apply. For investment projects using investment credit capital
not guaranteed by the State, the investors shall themselves be responsible for
the investment efficiency; the capital-lending organizations shall have to
scrutinize the projects and decide the capital loans for investment;
c) For investment projects of enterprises, which
use other sources of capital, the State shall manage through business
registration and construction licensing (if investment projects involve
construction) as prescribed in Article 13 of this Regulation;
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e) For investment projects of Vietnamese
missions overseas; security and defense projects which require confidentiality;
projects on purchase of copyrights, the elaboration of such investment projects
shall comply with this Regulation; the project appraisal, investment decision
and project execution management shall comply with the Government’s
separate regulations;
f) For investment projects of overseas
Vietnamese who make investment in Vietnam and of foreigners permanently
residing in Vietnam, which are executed under the legislation on domestic
investment promotion, the management of the construction thereof shall comply
with this Regulation.
Article 4.- Investment
and construction order
1. Investment and construction order shall
comprise 3 phrases:
a) Investment preparation;
b) Investment execution;
c) Completion of construction and putting
projects into exploitation and use.
2. Work in the phrases of investment execution
and construction completion with projects being put into exploitation and use
may be carried out according to order, successively or alternately, depending on
the concrete conditions of each project, which shall be decided by persons
competent to decide the investment.
3. For projects where capital must be recovered,
the investors shall have to retrieve the capital and refund the investment
capital.
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In this Regulation, the following terms shall be
construed as follows:
1. "Investment project" means an
assortment of proposals concerning the disbursement of capital to create,
expand or renovate given material bases in order to achieve the quantitative
growth or maintain, improve or raise the quality of products or services within
a given period of time (including only direct investment activities).
2. "Construction works" means the
products of construction and installation technologies, closely attached to
land (including air space, water surface, sea surface and continental shelf)
and created by construction materials, equipment and labor.
Construction works comprises one or several
installation in the synchronous and complete technological chains (even
produced through cooperation) to turn out products mentioned in the projects.
3. "Constructions incident" means
damage, collapse of construction structure, construction item(s) or the entire
constructions, which reduce or arrest the constructions’ bearing capacity, causing unsafety to
surrounding works.
4. "Branch-managing ministry" means
the ministry, the ministerial-level agency or the agency attached to the
Government, which has the function of managing a branch throughout the country
in accordance with the Law on Organization of the Government.
5. "Persons competent to decide the
investment" mean the representatives at law of organizations, State bodies
or enterprises, depending on the investment capital sources prescribed in Articles
10, 11, 12 and 13 of this Regulation.
6. "Investor" means the person who
owns capital or borrows capital or the person who is assigned the
responsibility to directly manage and use capital to effect the investment
according to the provisions of law.
7. "The total investment" means the
total expenditure on investment and construction (including capital for initial
production) and the project’s maximum expenditure limit which is
determined in the investment decision and can only be readjusted according to
the provisions in Article 25 of this Regulation.
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9. "The investment capital to be
settled" means the total lawful expenditure made in the investment process
in order to put the project into exploitation and use. The lawful expenditure
means the expenditure made in strict accordance with the signed contract and
the approved estimate design as well as with the criteria, norms, unit prices,
financial-accounting regime and current relevant stipulations of the State. The
investment capital shall be settled within the total investment limit already
approved or readjusted (if any).
10. "Construction criteria" mean the
technical criteria set for carrying out the survey, designing, construction and
installation, test operation upon completion to ensure the construction
quality, applicable to each specialized construction work, which are
promulgated by the State or ministries with specialized construction function.
11. "Construction norms" mean
documents defining the minimum technical requirements which must be met by all
construction activities as well as measures and construction criteria applied
to satisfy such requirements, which are promulgated by the Ministry of
Construction.
12. "New urban area" means a
concentrated area newly built according to an investment project for the
development of complete and synchronous technical infrastructure and the
housing development of the entire area, linked to an existing city or a new
city being formulated with boundary and function being determined as compatible
with the urban construction planning approved by the competent State body.
13. "Urban technical infrastructure
development project" means an investment project for the construction of
technical infrastructures in service of the new urban area or for the
modification and upgrading of the existing urban area.
14. "New urban area development
project" means an investment project for the construction of synchronous
technical infrastructure and management of housing development for the entire
new urban area according to the approved planning.
Article 6.-
Classification of investment projects
1. Depending on projects’ nature and investment scale, domestic
investment projects are classified into three groups: A, B and C for division
of management responsibility. The characteristics of each group is specified in
the Appendix attached to this Regulation.
2. For the Group A project which comprises many
constituent projects (or mini- projects) in which if each constituent project
(mini-project) can operate independently, be exploited and executed according
to investment phase inscribed in the written ratification of the
pre-feasibility study report by the competent person, each constituent project
(mini-project) shall be entitled to the execution of investment preparation
stage (from the making of pre-feasibility study report) and the execution of
investment according the order like an independent project, and the submission
for approval and management shall comply with the regulations for Group A
projects.
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Article 7.- The
responsibility for investment and construction management
1. The Ministry of Planning and Investment:
a) To study and develop mechanisms and policies
for investment as well as for the State management of domestic investment,
foreign investment in Vietnam and overseas investment by Vietnamese;
b) To identify orientation and structure for
investment capital in order to ensure the balance between the domestic
investment and foreign investment, then submit them to the Government for
decision;
c) To submit to the Government draft laws,
ordinances and legal documents concerning the economic management mechanisms
and policies, the promotion of domestic and foreign investment in order to
achieve an economic structure suitable to the strategies, planning and plans
for socio-economic stability and development;
d) To issue investment licenses and guide
foreign-invested enterprises to make the investment preparation in accordance
with the Law on Foreign Investment in Vietnam and relevant provisions of this
Regulation;
e) To organize the appraisal of Group A investment
projects and submit them to the Prime Minister for considering and deciding the
investment or agreeing to let the Ministry issue the business registration
certificates to Group A projects not funded by State capital; to monitor the
process of investment in investment projects under the State plans;
f) To synthesize and submit to the Prime
Minister the annual and five-year plans on development investment. To
coordinate with the Ministry of Finance in inspecting and supervising the
implementation of investment plans funded by State-managed capital sources;
g) To assume the prime responsibility and
coordinate with the Ministry of Construction, the Ministry of Trade, the
Ministry of Finance and other ministries, branches as well as localities in
guiding and inspecting the implementation of the Bidding Regulation;
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2. The Ministry of Construction:
a) To perform the function of State management
over construction, to study mechanisms and policies on management of
construction as well as urban and rural construction plans then submit them to
the Prime Minister for promulgation or to be authorized by the Prime Minister
to promulgate them;
b) To promulgate construction criteria,
standards, norms, designing process, regulations on construction works quality
control, norm system, construction economic-technical indices, investment and
construction consultancy expense norms; to agree to let the ministries having
specialized construction promulgate their standards, norms, criteria and
regulations for the control of the quality of specialized construction works;
c) To assume the prime responsibility together
with ministries in charge of specialized techniques for organizing the
appraisal of the technical designs and total cost estimates of Group A
investment and construction projects for ratification by the competent
authorities. To exercise the unified State management over the construction
quality, to monitor, examine and detect matters related to the quality of
construction works and propose handling measures, particularly the quality of
Group A construction projects;
d) To guide the activities of construction
consultancy enterprises, construction enterprises and organizations managing
the execution of investment and construction projects;
e) To assume together with the Ministry of
Planning and Investment, the Ministry of Finance, the State Bank of Vietnam and
other ministries, branches and localities the prime responsibility for guiding
and inspecting the observance of the Regulation on Investment and Construction
Management.
3. The Ministry of Finance:
a) To study policies and regimes for mobilization
of investment capital from various sources and the management of investment
capital in order to submit them to the Prime Minister for promulgation or to
promulgate them according to its competence;
b) To coordinate with the Ministry of Planning
and Investment in planning the allocation of investment capital to ministries,
localities and important State projects funded by the State-budget capital;
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d) To provide the Government guaranty for
foreign capital borrowings by enterprises (except for credit institutions)
according to the Government’s stipulations;
e) To conduct financial inspection and
examination of projects of organizations and units which use the State’s
investment capital sources; to guide and inspect the balance of accounts of
investment capital for investment projects funded by the State capital and make
the balance of accounts of investment capital for Group A projects funded by
the State capital;
f) To guide the allocation of State-budget
capital for investment, non-business capital of investment and construction
nature for projects and programs according to investment plans and under the
Prime Minister’s
direction.
4. The State Bank of Vietnam:
a) To study the mechanisms and policies for the
State management of bank money and credits in investment and construction then
submit them to the Prime Minister for promulgation or promulgate them according
to its competence;
b) To supervise the credit institutions and
other financial or credit organizations in performing the following duties:
- Mobilizing capital from various sources at
home and abroad in order to provide long- , medium- and short-term loans for
investment projects on production and business development;
- Providing loan capital for efficient
production and business projects which are feasible and can repay debts; to
coordinate with and create favorable conditions for enterprises to borrow
capital for materialization of efficient investment opportunities;
- To provide loan, payment, performance and
bidding security as well as other forms of banking security as prescribed by
law;
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5. Other relevant ministries and branches:
a) The ministries, the ministerial-level
agencies and the agencies attached to the Government shall perform the State
management function according to their respective functions, tasks and powers.
The ministries having the function of managing the specialized construction
projects shall promulgate construction-related regulations, standards and
economic-technical norms after getting the consent of the Ministry of
Construction;
b) The branch-managing ministries and bodies
relating to land, natural resources, biology, technologies, environment, trade,
the maintenance and conservation of historical relics, cultural heritages,
picturesque landscapes, national defense, security, fire prevention and fight
shall have to consider and give written comments on matters related to
investment projects within the prescribed time limits. Past such time limits,
if no replies are received from the relevant branch-managing ministries, such
ministries, branches and agencies are considered to have agreed with the
written proposals.
6. The provincial-level People’s
Committees (of the provinces and centrally-run cities):
The provincial-level People’s
Committees shall, within their functions and powers, perform their responsibility
of State management over all organizations and individuals executing investment
projects in their respective localities as prescribed by law.
Article 8.- Management
of planning projects
1. The Ministry of Planning and Investment shall
be the body managing projects on regional and inter-provincial socio-economic
development overall planning throughout the country.
2 The Ministry of Construction shall exercise
the State management over the urban and rural construction planning as well as key
area construction planning.
3. The provincial-level People’s
Committees shall manage projects on socio-economic development overall planning
and the urban and rural construction planning under the local management as
assigned by the Government.
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5. Projects on socio-economic development
overall planning, specialized branch development planning as well as urban and
rural construction planning, when studied for construction, must be widely
commented by concerned ministries, branches and localities. The urban and rural
construction planning, when studied for project elaboration, must be publicized
for comments by people and the People’s Councils in areas under the planning.
The construction planning projects (both the overall planning and the detailed
planning) already approved by competent levels must be made public regularly at
the offices of local administration at all levels and public places in the
planning area for implementation and inspection of the implementation thereof
by the people.
Article 9.- Management
of capital for planning projects
1. Capital for elaboration of planning projects
shall include the capital for investigation, surveys, studies and elaboration
of planning projects.
2. Capital for elaboration of projects on
regional and territorial socio-economic development overall planning, branch
development planning, urban and rural construction overall planning, the
detailed planning on central cities and on land use may be taken from the State
budget and included into the State’s annual investment plans.
3. Capital for elaboration of projects on
detailed planning for the construction of functional urban and rural areas,
detailed planning for industrial zones and the construction of new urban areas,
detailed planning for specialized branches (tourism, physical training and
sports, services,…)
may be taken from capital mobilized from investment projects and accounted into
the costs of execution of investment projects.
4. The Ministry of Planning and Investment and
the Ministry of Finance shall have to manage and allocate annual capital for
the work of investigation, surveys and elaboration of overall planning for
regional and territorial socio-economic development, branch development
planning as well as urban and rural construction planning, and to guide
ministries and localities in organizing the implementation thereof.
5. The plans on annual capital for the elaboration
of regional construction planning, urban and rural construction planning shall
be elaborated by localities, the Ministry of Planning and Investment shall
consult the Ministry of Finance and the Ministry of Construction so as to
submit them to the Prime Minister for ratification. The management of the use
of this capital source shall comply with the division of responsibilities as
prescribed by the legislation on the State budget.
Article 10.- Management
of projects funded by State-budget capital
1. The projects funded by State-budget capital
shall include:
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b) Support for enterprises’
projects on investment in fields that require the State’s participation as prescribed by law;
c) Expenses for the work of investigation,
surveys and elaboration of projects for regional and territorial socio-economic
development overall planning, urban and rural construction planning permitted
by the Prime Minister;
d) The Government’s loans for development investment;
e) Basic depreciation capital and other State
revenues left for State enterprises to make investment.
2. The competence to decide the investment in
projects funded by State-budget capital:
a) The Prime Minister shall decide or authorize
others to decide the investment in Group A projects;
b) The ministers, the heads of the
ministerial-level agencies, agencies attached to the Government, financial
management bodies of the Party Central Committee, the central committees of
political organizations, socio-political organizations (defined in the State
Budget Law), and the presidents of the provincial-level People’s
Committees shall decide the investment in Group B and C projects.
- For Group B and C projects, the agencies
deciding the investment therein shall have to base themselves on branch
development planning, local socio-economic development planning and the
approved State-budget capital plan to decide the investment and take
responsibility for the investment efficiency.
- Particularly for Group C projects, the
agencies deciding the investment therein shall have to ensure the investment
capital balance for the execution of projects for not more than two years;
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d) The presidents of the People’s
Committees of Hanoi and Ho Chi Minh City may authorize the directors of the
municipal Planning and Investment Services to decide the investment in projects
capitalized at less than 2 billion VNdong. For other provinces and cities, the
presidents of the provincial-level People’s Committees may authorize the directors
of the provincial/municipal Planning and Investment Services to decide the
investment in projects capitalized at less than 500 million VNdong;
e) The presidents of the district- or commune-level
People’s
Committees may decide the investment in projects financed by State budget
capital according to the assignment by the provincial-level People’s
Councils.
District-level investment projects financed by
State-budget capital must be approved by the provincial-level People’s
Committees and tightly controlled in term of their planning and socio-economic
development objectives.
Commune-level projects using State-budget
capital for investment and construction of irrigation canals, rural roads, schools,
clinics, cultural works, after being approved by the commune-level People’s
Councils, must be ratified by the district-level People’s Committees in term of investment
objectives and planning.
For commune-level projects on the construction of
canals, animal farms and stables, rural roads and/or schools, financed by people’s
contributions, the commune-level People’s Committees shall have to organize the
implementation of investment and construction according to the Regulation on
the mobilization, management and use of voluntary contributions by people for
construction of infrastructures of communes and district townships, issued
together with Decree No. 24/1999/ND-CP of April 16, 1999 of the Government;
f) Persons competent to decide the investment
must not use the non-business capital sources for investment in new
constructions. For a renovation and expansion project, if the non-business
capital source is used for investment at the level of one billion VNdong or
more, the investment preparation and implementation procedures must be carried
out according to the provisions of this Regulation.
Article 11.- Management
of investment projects financed by State-guaranteed credit capital or the
development investment credit capital of the State
1. Production and/or business projects of
individuals or economic organizations not belonging to the State enterprises
shall comply with Clause 1, Article 13 of this Regulation.
2. Investors of projects of the State
enterprises using State-guaranteed credit capital and/or the development
investment credit capital of the State shall have to take responsibility for
the investment efficiency and repay borrowed capital on time; the lending
organizations shall have to appraise the financial plans as well as the debt payment
plans, to supply capital, supervise the use of borrowed capital for the right
purposes and to recover the lent capital. For projects using foreign loan
capital guaranteed by the State, the investors shall also have to fulfill their
commitments made when they borrowed the capital according to the provisions of
law.
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The Managing Boards of the State corporations
may decide investment in Group C projects. Particularly the State corporations
directly managed by the Prime Minister, their Managing Boards may decide investment
in Group B and C projects.
4. Investors of Group C projects financed by
capital sources prescribed in Clause 2, this Article, may approve the bidding
plans, bidding results, bid hand-over and reception contracts, inspect the
quality, test and accept projects and make final settlement of investment
capital according to current regimes and policies of the State within the limit
of the total investment and contents inscribed in the investment decision,
technical designs and total cost estimates already approved by persons
competent to decide the investment. The capital-lending organizations shall
monitor and inspect the investment execution under the investment decisions and
make the final settlement of investment capital.
The process of investment in Group A and B
projects shall comply with the provisions prescribed for projects financed by
State-budget capital.
Article 12.- Management
of projects using development investment capital of State enterprises
The competence to decide the investment and the
investment execution shall be stipulated as follows:
1. For Group A projects, the competence to
decide investment and the investment execution shall comply with the provisions
prescribed for projects financed by State-budget capital;
2. For Group B and C projects, the State
enterprises shall base themselves on the branch development planning already
determined to decide the investment; the process of investment execution shall
be undertaken by enterprises themselves, based on the proper implementation of
the State’s
current regimes and policies on investment and construction management in term
of norms, unit prices and Bidding Regulation. The organizations managing the
enterprises’
capital and organizations providing capital support for projects shall have to
inspect the execution of the investment decisions and make the final settlement
of investment capital.
Article 13.- Management
of investment projects financed by other sources of capital
1. For production and/or business projects of
individuals and economic organizations other than State enterprises, the
investors shall have to take responsibility for their business efficiency. The
business operation must comply with the provisions of law. If a project
involves construction, the investor shall have to compile a dossier and submit
it to the competent authority for licensing the construction according to this
Regulation.
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Article 14.- Investors,
their responsibilities and powers
1. Investors:
a) For investment projects of State enterprises,
bodies or organizations, using State-budget capital, State-guaranteed credit
capital and/or development investment credit capital of the State, the
investors and forms of project management shall be decided by the persons
competent to decide the investment;
b) The persons competent to decide the
investment shall not concurrently act as investors; administrative and
non-business agencies shall only be the investors of projects for construction
of material and technical foundations of such agencies;
c) For investment projects of companies or
cooperatives, the investors shall be the representatives at law of such
companies or cooperatives;
d) For private investment projects, the
investors shall be the owners of the investment capital;
e) For projects on development of urban
technical infrastructure or projects on development of new urban areas, the
investors shall be decided by the People’s Committees of the provinces and centrally-
run cities according to the following principles:
- The investors are organizations or enterprises
assigned or leased land by the State for the implementation of projects;
- The selection of investor in cases where many
organizations and/or enterprises want to invest in a project shall comply with
the Bidding Regulation.
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a) To organize the elaboration of investment
projects, clearly determine the capital sources, fill in investment procedures
and submit them to the competent authorities for approval according to the
provisions in Articles 10, 11, 12 and 13 of this Regulation;
b) To organize the investment execution,
including: the organization of bidding to select contractors, signing contracts
and performing contracts already signed with the contractors as prescribed by
law;
c) For investment projects using capital from
one or several different sources, the investors shall bear all-round and
continuous responsibilities for the management of the use of such capital
sources from the time of investment preparation, investment execution to the
time of putting projects into exploitation and use, recovering and refunding
the investment capital;
d) To repay the borrowed capital on time and fulfill
all terms committed when mobilizing capital;
e) In case of replacement of investors, the new
investors shall have to fully inherit the investment work of the previous
investors;
f) Where investors directly manage the projects,
there must be apparatus fully capable of managing the projects and being
registered at the competent agencies;
g) Investors may request concerned State bodies
publicize provisions relating to investment such as construction planning,
land, resources, water and electricity supply, communications and transport,
ecological environment, fire and explosion prevention and combat, the
protection of cultural and historical relics, security and defense, so that
they are aware of and implement them.
Article 15.- Investment
and construction consultancy organizations
1. The investment and construction consultancy
organizations are professional organizations of various economic sectors, have
the legal person status and register their investment and construction
consultancy business according to the provisions of law.
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To provide information on legal documents,
mechanism as well as policies regarding investment and construction, to
elaborate and manage investment projects, to design and compile bidding
dossiers, to supervise and manage the construction and installation process, to
manage expenses for construction, test and accept projects;
An investment and construction consultancy
organization may sign a subcontract with another investment and construction
consultancy organization for the performance of part of the consultancy task.
3. The responsibilities of investment and
construction consultancy organizations:
a) To register investment and construction
consultancy activities with the competent bodies according to the provisions of
law;
b) To be answerable before law and to investors
for the commitments made in the contracts, including the quantity, quality and
duration of performance, the accuracy of products and the quality of their consultancy
products;
c) To implement the regime of professional
insurance for investment and construction consultancy as prescribed by law. To
widely supply information on operation capability of enterprises so that
investors may know and select.
Article 16.-
Construction enterprises
1. Construction enterprises are enterprises of
all economic sectors, which are established according to law and have
registered their construction business.
2. Responsibilities of construction enterprises:
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b) To be answerable before law and to the
investors for their commitments made in the contracts, including the quantity,
quality and precision of products, the time for performance of contracts, with
stipulations and instructions on the use of construction works before the
hand-over, to provide warranty for their construction products and works
according to the provisions in Article 54 of this Regulation;
c) To implement the regime of insurance for
construction works, take responsibility before law for all matters related to
the safety of nearby works and projects being under construction, to effect the
labor safety and ecological environment protection in the course of
construction. To provide information on the operation capacity of enterprises
so that investors know and make the selection thereof.
Article 17.- Investment
plans of the management bodies at different levels and of State enterprises.
1. To synthesize and balance the investment plans:
a) The Ministry of Planning and Investment shall
synthesize the investment capital of all economic sectors in the national
economy so as to forecast the macro-balances, in which the investment belonging
to State-budget capital, including State-budget investment capital,
State-guaranteed investment capital, development investment credit capital of
the State and development investment capital of State enterprises, shall be
included in plans on the basis of the provisions in Articles 10, 11 and 12 of this
Regulation; the capital for branch and territorial development planning as well
as urban and rural construction planning;
b) The plans for investment in the provinces and
centrally- run cities shall be synthesized by the provincial/municipal Planning
and Investment Services to reflect the entire investment activities of all
economic sectors in the localities;
c) The plans for investment from State-budget
capital at different levels must be worked out in conformity with the available
capital plans and the approved project execution time-table;
d) The investment plans of State enterprises
must be balanced and fully reflect the sources of basic depreciation capital,
the after-tax profit accumulation, capital mobilized at home and abroad, the
State’s
investment credit capital and the State budget support capital (if any).
2. Execution of investment plans:
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b) The national programs and national important
projects in the annual plans and each period of economic development shall be
decided by the National Assembly; the Prime Minister shall ratify their
objectives, time schedule, total investment capital and investment capital
sources as basis for assignment of annual plans to ministries and localities
for implementation;
c) For other economic development programs using
the non-business capital and the State’s investment capital, based on the programs� objectives, annually,
the Ministry of Planning and Investment shall balance and distribute the
investment capital and the Ministry of Finance shall balance and distribute the
non-business capital for each program and notify this to the program-managing
bodies;
d) The financial bodies at all levels shall have
to adequately supply capital for the approved projects according to the State
plans and the tempo of project execution.
Article 18.- Contents
of investment plans
1. The capital plans for investigation, surveys
and elaboration of branch and territorial planning, urban and rural
construction planning.
2. Expenses for investment preparation,
including capital for carrying out investigation, surveys, making pre-feasibility
and feasibility study reports on the projects, the project evaluation and
investment decision. The investment preparation plan shall include the list of
projects and capital for investment preparation of each project.
3. The plan on preparation for project execution
shall include the capital for carrying out surveys, technical design,
preparation for the construction and other expenses related to the preparation
for the execution of investment project.
4. The plan on investment execution shall
include the investment capital for the procurement of supplies and equipment,
construction and expenses related to bidding and the putting of projects to
exploitation and use.
5. For the State’s development investment credit capital,
the Government’s
stipulations shall apply.
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1. Projects to be included in investment
preparation plans must conform to the approved branch and territorial
development planning.
2. Projects to be included in plans on
preparation for investment execution or on investment execution must have their
investment decisions compatible with the provisions of this Regulation by
October before the plan year.
3. Group A and B projects, of which the
technical designs and total cost estimates have not been approved yet but their
investment decisions have already defined the capital level for each project
item as well as the designs and cost estimates of the items to be constructed
in the year, shall be included in the investment plans; Group C projects must
have their technical designs and total cost estimates approved.
For projects concluded with foreign countries,
which comprise many mini-projects, each mini-project to be constructed in the
year must have its technical design and cost estimate approved by the competent
authority.
4. Report on the implementation of investment
projects:
a) The ministries, the ministerial-level
agencies, the agencies attached to the Government, the State corporations and
the provincial-level People’s Committees shall report the situation on
the plan execution every quarter, six months, 9 months and every year in the
first week of the last month of the quarter to the Ministry of Planning and
Investment, the Ministry of Finance, the Ministry of Construction and the
General Department of Statistics regarding the mobilization of various capital
sources, the construction volume, the project quality and incident (if any),
allocation, settlement, project completion, newly mobilized capability
according to form set by the General Department of Statistics;
b) For Group A projects and national important
projects, the investors shall have to report the situation on the execution of
the investment plans on the 20th of every month so that the Ministry of Planning
and Investment synthesize and report them to the Prime Minister and recommend
measures to organize the implementation of investment plans according to
schedule.
Article 20.- Investment
expertise
1. Projects with investment decided by the
competent State bodies shall be subject to the investment expertise.
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3. Investment expertise contents:
a) Expertise of the issuance of investment
decisions;
b) Expertise of the arrangement of plans and
capital disbursement for investment projects;
c) Expertise of the process of organizing the
implementation of projects in conformity with the investment decision;
d) Proposing the investment-deciding bodies to
reconsider the investment undertaking (cancellation, suspension, readjustment
of investment decisions);
e) Re-evaluating the investment decisions upon
the completion of the investment process.
4. The investment expertise shall be implemented
at the levels of the Prime Minister, branch and locality:
a) The Prime Minister shall decide the
organization of investment expertise of projects under his/her competence to
decide the investment;
b) The ministers managing branches and the
presidents of the provincial-level People’s Committees shall decide the organization
of investment expertise of projects under the deciding competence of branches
and localities.
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6. Organizations conducting the investment
expertise shall be answerable before law for their expertise conclusions as
well as proposals made to the competent authorities on handling of investment
projects.
7. The Ministry of Planning and Investment shall
coordinate with the Ministry of Construction and the Ministry of Finance in
providing detailed guidance on the investment expertise.
Chapter II
INVESTMENT PREPARATION
Article 21.- The
contents of investment preparation
The investment preparation contents shall
include:
1. The study on the necessity to make investment
and the investment scale;
2. Establishing contacts and probing domestic
and foreign markets in order to determine the demand for and the
competitiveness of products, seeking suppliers of equipment and materials for
production; considering the investment capital capability and selecting the
investment forms;
3. Conducting prospections and surveys and
selecting the site for construction;
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5. Forwarding the project dossiers and
explanation documents to persons competent to decide the investment, the
investment capital-lending organizations and the investment project-expertising
agencies.
Article 22.-
Elaboration of investment projects
1. The investors shall have to make or hire
consulting organizations to make pre-feasibility study reports, feasibility
study reports or investment reports.
2. For Group A projects, the investors shall
have to make the pre-feasibility study reports and the feasibility study
reports. Where the projects have already been decided by the National Assembly
or the Government in term of investment undertaking, only the feasibility study
reports shall be made.
a) For Group A projects which have been approved
by the Prime Minister in term of their pre-feasibility study reports and
allowed to be divided into constituent projects (mini-projects), such
constituent projects (mini-projects) shall have their feasibility study reports
made like independent investment projects, thereby the submission for approval
and management of the projects must comply with the regulations prescribed for
Group A projects.
b) For Group B projects, the investors shall
make the feasibility study reports; if the pre-feasibility study reports are
deemed necessary, the persons competent to decide the investment shall
consider, decide and request it in writing.
3. For Group C projects capitalized at one
billion VNdong or more each, the investors shall have to make the feasibility
study reports.
For projects capitalized at under one billion
VNdong, repair and/or conservation projects financed by non-business capital
sources and branches’
projects with model designs and technical standards already approved by
branch-managing ministries on the basis of the overall planning for each
region, separate feasibility study report for each project is not required but
only the investment report. The content of the investment report shall be
guided in detail by the Ministry of Planning and Investment.
The feasibility study report is the basic
document, through which the investors have studied, compared and selected the
investment options to be sent to the investment expertising agencies and
submitted to the persons competent to decide the investment for consideration
and decision.
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1. Studying the necessity to make the
investment, advantages and disadvantages.
2. Projected investment scale and forms.
3. Selecting the area and site for construction
and estimating the land area to be used on the basis of minimizing the land use
as well as environmental and social impacts and resettlement (with detailed
analysis and evaluation).
4. Analysis and preliminary selection of
technologies and techniques (including both cultivated crops and reared
animals, if any) and terms for the supply of equipment, raw materials, fuels,
services, infrastructure.
5. Analysis and preliminary selection of
construction options.
6. Preliminary determination of the total
investment, plans for capital mobilization, capability to refund the capital,
repay debts and earn profits.
7. Preliminary calculation of the investment
efficiency in term of the socio-economic aspects of the project.
8. Determination of the operation and
exploitation independence of the constituent projects or mini-projects (if
any).
For projects on procurement of equipment and
machinery without installation, the contents of the pre-feasibility study
report shall only comply with Clauses 1, 2, 4, 6, 7 and 8 of this Article.
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1. Grounds to determine the necessity of
investment.
2. The selection of investment form.
3. Production program and conditions to be met
(for projects involving production).
4. Options for specific site (or site area,
constructions line) compatible with the construction planning (including
documents on site selection with proposed measures to minimize the
environmental and social impacts).
5. Plans for ground clearance, resettlement
plans (if any).
6. Analysis and selection of technical and
technological options (including cultivated crops and reared animals, if any).
7. Architectural options, construction
solutions, preliminary designs of plans proposed for selection, solutions for
management and protection of environment.
8. Clear determination of capital sources (or
types), financial capability, total investment amount and demand for capital
according to tempo. Plans to refund the investment capital (for projects
requiring the recovery of investment capital).
9. Plans on management of the project
exploitation and labor employment.
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11. Major time targets for investment execution.
Group C projects require immediate elaboration of bidding plans. For Group A
and B projects, the bidding plans may be drawn up after the issuance of
investment decisions (depending on specific conditions of projects). The time
to start the construction (at the latest), the time for completion and putting
projects into exploitation and use (at the latest).
12. Proposing forms of managing the project
execution.
13. Identification of investors.
14. Relationships and responsibilities of
agencies involved in the projects.
For projects on procurement of equipment and
machinery without installation, the contents of the feasibility study report
shall only comply with Clauses 1, 2, 6, 8, 9, 10, 11, 12, 13 and 14 of this
Article.
Article 25.- The total
investment
1. The total investment shall include expenses
for investment preparation, expenses for investment execution preparation,
expenses for investment and construction implementation, expenses for
production preparation, interests on bank loans by investors during the time of
investment execution, initial floating capital for production (for production
projects), insurance premiums, reserve expenses.
For Group A projects and a number of projects
with special requirements permitted by the Prime Minister, the total investment
shall also include expenses for scientific and technological studies related to
the projects.
2. The total investment may be adjusted only in
the following cases:
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b) It is due to a change in the exchange rate
between Vietnam dong and the foreign currency used for the part of the project
(if in the total investment, the foreign currency amount to be used was not
inscribed).
c) It is due to force majeure circumstances.
3. For national important projects approved and
decided by the National Assembly in term of policy, the total investment shall
be officially determined after the feasibility study report is appraised by the
competent body and approved by the persons competent to decide the investment.
4. The Ministry of Planning and Investment shall
guide the detailed content of the total investment.
Article 26.- Appraisal
of investment projects
1. The investment projects financed by
State-budget capital, State-guaranteed credit capital, development investment
credit capital of the State and investment capital of State enterprises must be
appraised. The appraisal of investment projects must be conducted by the State’s
competent functional bodies and State-run credit institutions (for projects
financed by credit capital).
The investors shall have to submit their
feasibility study reports to persons competent to decide the investment and at
the same time to bodies with appraisal function as provided for in Clause 6,
this Article.
2. With regard to pre-feasibility study reports
on Group A projects, the investors shall directly submit them to the Prime
Minister and at the same time to the Ministry of Planning and Investment, the
Ministry of Finance as well as the branch-managing ministry for consideration
before reporting them to the Prime Minister. Only when the Prime Minister’s
written approval is obtained can they make the feasibility study reports or
continue to probe, negotiate and sign agreements among the investment partners
before making the feasibility study reports.
For national important projects passed and
decided in term of investment policy by the National Assembly, the Ministry of
Planning and Investment shall have to appraise the pre-feasibility study
reports and report them to the Government for submission to the National
Assembly.
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4. For new urban area projects (or constituent
projects) which are in line with the detailed planning and infrastructure
development projects already approved by the competent State bodies, only the
feasibility study reports are appraised.
5. The Ministry of Planning and Investment
provides guidance on the dossiers of investment project appraisal.
6. Competence to appraise investment projects:
a) For Group A projects:
The Ministry of Planning and Investment which
assumes the prime responsibility for the appraisal shall have to gather
comments of the branch-managing ministry as well as concerned ministries and
localities. Depending on the specific requirements of each project, the
Ministry of Planning and Investment may invite consulting organizations and
experts from concerned ministries to take part in the appraisal of projects.
For projects financed by development investment
credit capital of the State, the capital-lending organizations shall appraise
the financial plans and the debt payment plans before submitting them to the
persons competent to decide the investment.
b) For Group B and C projects financed by
State-budget capital, State-guaranteed credit capital or development investment
credit capital of the State:
- The persons competent to decide the investment
shall use their qualified professional bodies to organize the appraisal, or may
invite professional bodies from concerned ministries and branches to appraise
the projects.
- For projects under the provincial-level
management, the provincial/municipal Planning and Investment Services, acting
as the coordinator for organizing the project appraisal, shall have to gather
comments from concerned bodies.
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Article 27.- Contents
of the investment project appraisal
1. Investment projects financed by State-budget
capital, State-guaranteed credit capital, development investment credit capital
of the State or investment capital of State enterprises must be appraised in
term of:
a) The compatibility with the planning on branch
and/or territorial development, the planning on urban and rural construction;
b) The regime on national resources exploitation
and use (if any);
c) The State’s preferences and/or support which may be
enjoyed by investment projects under the common regimes;
d) Technological options and production scale,
usage capacity;
e) Architectural options, the application of
construction criteria and standards;
f) The use of land and natural resources, the
protection of ecological environment, the plan on resettlement (if any);
g) Fire and explosion prevention and combat,
labor safety and social aspects of the projects;
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i) The overall assessment of the project’s
feasibility.
2. Projects using State budget capital, the State’s
investment credit capital, and/or State-guaranteed credit capital must also
have their financial conditions, prices, investment efficiency and
debt-repayment plans appraised.
Article 28.- The State
Council for Appraisal of Investment Projects
The State Council for Appraisal of Investment
Projects shall be set up by the Prime Minister’s decision in order to appraise investment
projects.
Depending on the size, nature and necessity of
each project, the Prime Minister shall request the State Council for Appraisal
of Investment Projects to appraise or reappraise the project before deciding
the investment.
Article 29.- Time-limit
for appraisal of investment projects after receipt of full and valid dossiers
1. For Group A investment projects: The
appraisal time-limit shall not exceed 60 days.
2. For Group B investment projects: The
appraisal time-limit shall not exceed 30 days.
3. For Group C investment projects: The
appraisal time-limit shall not exceed 20 days.
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The contents of an investment decision shall
include:
1. The investment objectives;
2. Determination of investor;
3. Form of project management;
4. Location, the land area in use, environmental
protection options and resettlement and rehabilitation plans (if any);
5. Technology(ies), designed capacity,
architectural options, technical standards and grade of the project;
6. The national resources exploitation and use
regime (if any);
7. The total investment;
8. Investment capital sources, financial
capability and capital plan of the project;
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10. Mode of project implementation. The
principle for division of bid packages and form of selection of contractors.
Group C projects require immediate elaboration of bidding plans, while for
Group A and B projects, the bidding plan may be drawn up after the issuance of
investment decisions;
11. The time for construction and major time
targets for the project execution. The time for starting the construction (at
the latest), the time of completion and putting the project to exploitation and
use (at the latest);
12. The relationships and responsibilities of
the concerned ministries, branches and localities (if any). The implementation
effect.
Article 31.- Change of
investment project contents
1. The investment projects with the investment
therein having already been decided may have their contents changed only in
special cases. When the change of contents is needed, the concerned investors
shall have to explain the reasons therefor and the to be-changed contents for
submission to the persons competent to decide the investment for consideration
and decision.
2. Only after the change of the project contents
is permitted in writing by the competent persons can the project be
re-appraised and re-submitted in accordance with the regulation. The investment
scale must not be altered when the project is yet put into exploitation and
use.
3. A project shall be suspended, postponed or
cancelled in the following cases:
a) 12 months after the issuance of the
investment decision, the investor fails to execute the project without a
written approval of the competent person;
b) The project�s
objectives have been changed without the written permission of the competent
person;
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4. The persons competent to decide the
suspension, postponement or cancellation of investment projects must clearly
determine the reasons and be answerable before law for their decisions.
Investors who let their investment projects be suspended or postponed without any
sound reasons shall have to bear the responsibility before law for the damage
caused thereto.
Article 32.- Fund for
elaboration and appraisal of investment projects
1. Investment projects financed by any sources
of capital shall have fund from such sources for project elaboration and
appraisal. For projects without sources of investment capital being identified
yet, including projects to be supported by the State’s investment credits, the investors shall
use their own lawful capital sources or borrow bank capital for execution of
their projects, which shall be refunded after the official capital sources are
determined.
2. The fund for project elaboration consultancy,
the project appraisal fee and the costs of hiring experts for the project
appraisal shall be included in the investment capital of the project. The
Ministry of Construction shall reach an agreement with the Ministry of Planning
and Investment and the Ministry of Finance to provide detailed guidance on the
expenses for hiring appraisal experts.
The Ministry of Finance shall reach an agreement
with the Ministry of Planning and Investment and the Ministry of Construction
to promulgate the investment project appraisal fees.
3. After being appraised, if a project is not
allowed to be executed, the expenses for project elaboration and appraisal
shall be deducted from the capital source of the enterprise or from
non-business fund of the non-business administrative agency or from
State-budget capital already allocated in the plan to the project.
Chapter III
INVESTMENT EXECUTION
Article 33.- The
contents of investment project execution
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1. Applying for land assignment or lease (for
project involving the use of land);
2. Applying for the construction permit (if so
required) and the natural resource exploitation permit (if the resource
exploitation is involved);
3. Making compensation for ground clearance,
carrying out the plan for resettlement and rehabilitation (for projects
requiring resettlement and rehabilitation), preparing ground for construction
(if any);
4. Procuring equipment and technology;
5. Conducting construction survey and design;
6. Appraising and approving the design and total
cost estimates for the project;
7. Conducting the construction and installation;
8. Examining and performing contracts;
9. Controlling the equipment technique and
quality and the construction quality;
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The selection of contractor to perform the tasks
defined in this Article shall comply with the project�s
investment decision and the bidding regulation.
Article 34.- Land
assignment and receipt
1. Investors wishing to use land shall have to
compile dossiers applying for land allotment or lease according to the
provisions of law.
2. The competent State bodies shall consider and
settle the dossiers of application for land allotment or lease within 25 days
after receiving complete and valid dossiers.
3. The recovery of land and the hand-over and
reception of land on the site shall comply with the provisions of land
legislation.
Article 35.- Preparing
ground for construction
1. The investors shall have to effect the
compensation for ground clearance and clear the construction ground according
to schedule, then hand over the construction ground to the construction
contractor. The investors may by themselves or hire specialized organizations
in the localities to make the compensation for ground clearance.
2. The People’s Committees of all levels shall have to
support or organize the ground clearance, the establishment of common
resettlement zones and effect the resettlement when so requested.
Article 36.- Project
construction design
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Documents on topographic, geological,
hydrographic, meteorological exploration or surveys and other documents, which
are used for designing the construction of projects, must be supplied by
organizations with legal status in the above-mentioned domains. The
construction designing shall have to comply with the construction standards and
technical criteria set by the State. If foreign construction standards and
technical criteria are applied, the written approval of the Ministry of Construction
is required.
2. Designing order:
a) In the feasibility study report, the step of
preliminary designing shall be implemented on the basis of the temporary
technological option, the project scale and architecture;
b) After the investment decision is issued for
the project and the technological designing is provided by the equipment
supplier, the project construction designing shall comply with the following
regulations:
- For projects with high technical requirements and
complicated geological structure, the technical designing (implementation
designing) must be made before the construction blueprint designing (detail
designing);
- For projects with technical simplicity or with
model design, unsophisticated treatment of foundation, only
technical-construction design is required.
The technical design must be made on the basis
of investment objectives and requirements stated in the investment decision,
the technical standards and criteria to be applied.
c) In special cases where the contents defined
in Points a and b of this Clause must be altered, the feasibility study report
must be resubmitted and approved by the persons competent to decide the
investment.
d) The designing organization shall have to draw
up the total cost estimate for the technical design or the
technical-construction design. The total cost estimate must not be larger than
the total investment already approved; if it is larger, the designing
organization shall have to recalculate it for conformity therewith.
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3. Designing organizations:
a) The designing must be carried out by
specialized organizations and/or individuals. Depending on the specific
conditions of projects, the investors may sign contracts with designing
consultancy organizations or the construction contractors shall undertake the
designing according to the steps prescribed in this Article;
b) The designing organizations or individuals,
when making designs, shall have to register their consultancy activities at the
competent offices and take full responsibility before law for the design
quality, calculation results, the structure safety and stability of the
projects (including the accuracy of anticipation and estimates);
c) Each designing blueprint must have the chief
designer, big designing blueprints (Group A or B projects) must have the
managers, the chief designers or the designing blueprint managers shall have to
take personal responsibility for the quality and accuracy of the design
blueprint, the technical solutions and design anticipation;
d) The designing organization shall have to
supervise the copyrighting throughout the process of construction and
installation, completion, test and acceptance of the project;
e) The designing organization is forbidden to
undertake the designing beyond their registered scope or under the name of
other designing organizations in any form.
Article 37.- The
contents of appraising the technical designs and total cost estimate
Investment projects involving the construction
financed by State-budget capital, development investment credit capital of the
State, and/or State-guaranteed credit capital must have their technical designs
and total cost estimates approved by the competent bodies before they are
opened for bidding. The bodies appraising the technical designs and the total
cost estimates for approval shall be the ones assigned the function of managing
the construction.
The investors shall have to submit the technical
designs and total cost estimates to bodies competent to approve them, and at
the same time to send the dossiers to the technical design - and total cost
estimate- appraising bodies. The appraisal and approval of technical designs
and total cost estimates must fully comply with the regulations on procedures
and technical orders in order to ensure the quality of the designs and total
cost estimates.
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a) The compatibility of the technical designs
with the contents already approved in the investment decisions, in terms of
scales, technologies, capacity, economic and technical indices, planning,
architecture, standards and technical criteria to be applied.
a) The ecological environment protection, fire
and explosion prevention and fight, labor safety, industrial sanitation;
c) The rationality of the technical design
solution;
d) The legal status of designing organizations
and individuals.
2. The contents of the total cost estimate
appraisal shall include:
a) Examining the rightness of norms, unit prices
and application of norms, unit prices as well as relevant regimes and policies
and expenditure items prescribed by the State;
b) The conformity between the technical design
volume and the total cost estimate;
c) Determining the value of the total cost
estimate, including equipment for comparison with the approved total
investment.
3. The technical design- and total cost
estimate-appraising bodies shall have to take responsibility before law for the
appraised contents defined at Points a, b and c of Clause 1 and Points a and b
of Clause 2 of this Article. When necessary, the technical design- and total
cost estimate- appraising bodies may hire experts and/or specialized
consultancy organizations to join the appraisal (the designing consultancy
organizations may not participate in the appraisal of their designing
products). The expenses for hiring the appraising experts shall be calculated
into the total investment and cost estimate of the project. The Ministry of
Construction shall reach agreement with the Ministry of Planning and Investment
and the Ministry of Finance to provide detailed guidance on the expense for
hiring appraising experts.
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5. The Ministry of Finance shall promulgate technical
design- and total cost estimate- appraising fees after reaching agreement with
the Ministry of Construction and the Ministry of Planning and Investment.
Article 38.- Approving
technical designs and total cost estimates
1. Bases for approving a technical design and
total cost estimate:
a) The overall explanation and blueprint of the
technical design;
b) The total cost estimate and the general time schedule
(for projects requiring the approval of the total cost estimates and the
general time schedule);
c) Documents on appraisal of the technical
design and total cost estimate by the bodies having the function to manage the
construction, which are assigned to make the appraisal.
2. The contents of a decision approving the
technical design and total cost estimate:
a) Approving the major contents of the technical
design:
- Name, location and size of the project,
technology, capacity, main economic and technical indices, grade of the
project, planning, architecture, standards and criteria to be applied;
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- The rationality of the technical-construction
design solutions.
b) Approving technical design supplements as
compared to the preliminary design, which do not alter the contents stated in
the investment decision;
c) Approving the total cost estimate, the
general time schedule (for projects requiring the approval of the total cost
estimate and the general time schedule):
- The rationality of norms, unit prices,
relevant regimes and policies and other expenses according to the State�s regulations, which
have been applied.
- The value of the total cost estimate,
including equipment in line with the investment decision.
d) The contents required for the completion of
the dossiers (if any).
3. The competence to approve the technical
designs and total cost estimates:
3.1. For construction investment projects using
State-budget capital, investment credit capital of the State or
State-guaranteed credit capital:
a) The technical designs and total cost
estimates of Group A projects shall be approved by the ministers, the heads of
the ministerial-level agencies or agencies attached to the Government, the
Managing Boards of State corporations under the Prime Minister’s
direct management, the presidents of the provincial-level People’s
Committees in localities with the investment projects after they are appraised
under the arrangement by the Ministry of Construction;
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c) The technical designs and total cost
estimates of Group B and C projects under the local management, shall be
approved by the presidents of the provincial-level People’s
Committees after they are appraised by the provincial/municipal Construction or
Specialized Construction Services (depending on the characteristics of the
projects).
The presidents of the provincial-level People’s Committees
may authorize the directors of the provincial/municipal Construction or
Specialized Construction Services to approve the technical designs and total
cost estimates of Group C projects under the provincial management;
d) The investors are permitted to approve
detailed designs and cost estimates for auxiliary project items (fence,
reception rooms) valued under 100 million VNdong, which do not affect the
already approved technical designs and total cost estimates of the projects.
3.2. For construction investment projects using
development investment capital of State enterprises, capital mobilized by
enterprises themselves and/or commercial credit capital not guaranteed by the
State:
a) For Group A projects, the appraisal and
approval of their technical designs and total cost estimates shall comply with
the provisions at Point a, Clause 3.1, this Article;
b) For Group B and C projects, the persons
competent to decide the investment of the enterprises shall approve the
technical designs and total cost estimates after they are appraised by the
enterprises’
bodies with function to manage the construction.
4. For production and/or business investment
projects of individuals and non-State economic organizations, the investors
shall have to organize the appraisal and approval of the designs. The contents
of appraisal by the State functional bodies defined in Clause 1, Article 37,
shall be effected by the construction licensing agencies when granting the
project construction permits.
5. The persons competent to approve the
technical designs and total cost estimates shall take responsibility before law
for the approved contents according to the provisions in Clause 2 of this
Article and other provisions of law.
Article 39.-
Construction permit
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a) Projects with investment decided by the Prime
Minister and projects in direct service of national security and defense;
b) Projects for guarding of borders or islands,
with investment decided by the Defense Minister or the Minister of Public
Security;
c) Specialized technical projects without
running through urban areas, which have had the investment decisions and their
technical designs as well as total cost estimates approved by the competent
bodies;
d) Projects in national parks and nature
preservation areas, projects for irrigation and water supply for population in
rural, highland or deep-lying areas; projects in service of afforestation or
forest fire prevention and combat, with decision on construction investment
being already issued;
e) Makeshifts for temporary use during the
project construction in the ground areas of the projects which have gone
through all construction and investment procedures;
f) Cases of renovation, upgrading, overhaul,
technical equipment installation within the project’s premise, without affecting the
surrounding architecture and environment;
g) Structures of projects financed with foreign
direct investment capital (FDI), constructions in industrial parks and works of
BOT projects;
h) Infrastructure development projects, new
urban area development projects and constituent projects in new urban areas,
with technical designs and total cost estimates being already approved in
strict accordance with the provisions of law;
i) Investment projects of Groups B and C which
have had investment decisions issued by competent authorities and their
technical designs as well as total cost estimates being already approved after
the issuance of written appraisal by the agency with construction management
function of the body competent to decide the investment or the
provincial/municipal Construction or Specialized Construction Services.
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3. For the construction of people’s
dwelling houses.
a) The construction of new separate dwelling
houses of people is subject to the State management only in term of the
planning, architecture and environment. The concerned State bodies shall have
to publicize conditions regarding the above aspects so that people base on such
conditions to compile dossiers of application for construction permits;
b) Cases exempt from the construction permits:
- Dwelling houses built on residential land,
with 3 storeys or less and the total flooring space of under 200 m2 in rural
and mountain areas or beyond the planning boundaries of district towns or
commune centers, except for dwelling houses built along national highways,
provincial roads or district roads;
- Urban dwelling houses built within the
premises of housing development projects, which have been given the lawful land
use certificates and detailed planning approved by the competent authorities
and have had infrastructure (intra-project roads, power supply stations, water
supply and drainage systems);
- Cases of minor repairs such as wall pasting,
mending or painting, roof retiling, ceiling repair, flooring, door replacement,
interior decoration, renovation, repair or installation of household
appliances, equipment, which do not adversely affect the structures of adjacent
houses.
Article 40.- Dossiers
of application for construction permits
The dossier of application for a construction
permit shall include:
1. The construction permit application (made
according to set form);
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3. The valid paper on land use right as
prescribed by law;
4. Project designing documents, including site
plan, elevation drawing, cross-sectional drawing and foundation drawing.
Article 41.- Competence
to grant the construction permits
1. The presidents of the provincial-level People’s
Committees shall grant the construction permits to projects in the territories
under their management at the proposal of the directors of the
provincial/municipal Construction Services.
The presidents of the provincial-level People’s
Committees may authorize the directors of the provincial/municipal Construction
Services to grant the construction permits to projects under their
jurisdiction.
2. When authorized to grant the construction
permits, the directors of the provincial/municipal Construction Services shall
have to draw up plans for organizing the granting of construction permits,
classifying and delimiting areas and locations with projects to be granted the
construction permits for the presidents of the provincial-level People’s
Committees to decide, to carry out administrative procedures prescribed by law
and to regularly report to the presidents of the provincial-level People’s
Committees on the situation of granting the construction permits in their
respective localities.
3. The presidents of the district-level People’s
Committees shall grant construction permits to separate dwelling houses under
the private ownership and small-scale projects according to the assignment of
responsibility by the presidents of the provincial-level People’s
Committees. The granting of construction permits to projects of these
categories shall be subject to the professional guidance by the
provincial/municipal Construction Services.
4. For Hanoi and Ho Chi Minh City, the
regulations on construction permit granting (including the classification and
delimitation of areas for construction permit granting) shall be promulgated by
the presidents of the municipal People’s Committees after consulting the Ministry
of Construction, which must conform with the provisions in Articles 39,40 and
41 of this Regulation.
5. The process of granting construction permits
shall be as follows:
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Agencies and individuals authorized to grant
construction permits are strictly forbidden to cause difficulties to or compel
the construction permit applicants to use their design drawings or hire designs
according to their suggestion;
The Ministry of Construction shall guide the
form and contents of the designing dossier as well as the
construction-licensing procedures. The General Land Administration shall guide the
regulations on valid papers on the land use right when applying for the
construction permits. The Ministry of Finance shall prescribe the
construction-licensing fee.
Article 42.- Permits
for natural resource and mineral exploitation
If an investment project requires natural
resource exploitation, the investor shall have to apply for a natural resource
exploitation permit and to abide by the provisions of law on natural resources
and minerals.
Article 43.- The
principle for bidding management and bidder designation in investment and
construction
1. The State encourages bidding for all projects
on investment and construction of production and business or socio-cultural
works, regardless of their capital sources.
2. Projects with investors being State enterprises
or State agencies or organizations using State-budget capital, State-guaranteed
credit capital, development investment credit capital of the State, development
investment capital of State enterprises must be opened for bidding, except for
the following projects which are entitled to bidder designation:
a) Projects of State secrets, security secrets
and/or defense secrets;
b) Emergency projects necessitated by natural
calamities or acts of sabotage;
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Bidding packages entitled to bidder designation,
upon the negotiation and signing contracts therefor, upon liquidation and
settlement of contracts as well as the final settlement of their investment
capital, must ensure their compatibility with the contents of the investment
decisions, as well as their approved technical designs and total cost
estimates.
3. The organization of bidding must comply with
the Bidding Regulation, ensuring its openness and fairness to all contractors
participating in the bidding.
4. Contractors participating in the bidding for
construction and installation must have the legal person status, have their
construction operation registered at the competent agencies, have full
technical and financial capabilities and experiences, and meet the requirements
of the bidding dossiers.
A foreign contractor participating in an
international bidding for construction and installation in Vietnam must enter
into partnership with at least one fully capable Vietnamese contractor and
clearly determine the contents of commitment regarding the scope of work and
prices in their bids. When winning the bids, if the foreign contractors fail to
fulfill such commitments, the investors shall cancel the bidding results.
5. Bid-winning units are strictly forbidden from
reselling bids to other organizations or individuals for performance thereof in
any form.
Article 44.- Contracts
for consultancy, supplies and equipment procurement and for construction and
installation.
1. In contracts for consultancy, supplies and
equipment procurement and for construction and installation, the investors and
contractors must be bound together in full obligations and responsibilities.
The construction and installation contracts must
be guaranteed with compensation for ground clearance so that the contractors
may perform the contracts according to the prescribed time-tables.
2. Before submitting the bidding results for
approval by the competent authorities, investors shall have to clarify the
contractual contents with contractors proposed to be the bid winners.
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3. In case of bidder designation, the investors
shall have to base themselves on the approved technical designs and total cost
estimates to negotiate and sign contracts according to the provisions of
legislation on contracts.
Article 45.- Conditions
for starting a project
All projects, before getting started, must fully
satisfy the following conditions:
1. Having the construction permit (for projects
requiring the construction permits).
2. Having the lawful contract on assignment and
acceptance of construction and installation bid.
3. Having completed the compensation, the ground
clearance and hand-over of land ground for use as prescribed by law.
4. Ensuring capital for payment according to the
contract performance tempo.
5. For projects using State-budget capital,
State-guaranteed credit capital, development investment credit capital of the
State and/or development investment capital of State enterprises, if they have
just completed only the contents prescribed in Clause 1, this Article, but need
to start their construction, there must be the technical designs and cost
estimates of items with construction to start, which have been approved by
competent persons, as well as the lawful contracts on bid assignment and
acceptance.
Article 46.-
Controlling the quality of construction works
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The investors shall have to control the quality
of construction works right from the stage of investment preparation and execution
till the completion of construction and putting the projects into exploitation
and use. The investors’
responsibilities to control the construction quality are stipulated as follows:
a) To strictly abide by the State’s
current regulations on the elaboration, appraisal and submission for approval
of pre-feasibility study reports, feasibility study reports, technical designs
and total cost estimates, and on organization of bidding or bid selection;
b) To select organizations for consultancy,
materials and equipment supply and construction as well as installation, which
have the legal person status and full and suitable capability to undertake the
work of investment preparation, technical designing and total cost estimates,
materials and equipment supply, construction and installation and supervision
of the construction quality;
c) To inspect the quality of materials,
construction structures and installation equipment in strict accordance with
the requirements of the approved designs and technical standards;
d) To be entitled to request the organizations
which provide consultancy, supply materials and equipment and undertake the
construction and installation bidding to explain the quality of the materials,
equipment and services they have provided and performed. For works which fail
to achieve the prescribed quality according to the technical designs and
standards, the investors shall be entitled to request the repair and/or
replacement thereof or refuse to accept them.
2. Responsibilities of the investment and
construction consultancy organizations:
The investment and construction consultancy
organizations shall take responsibility before the investors and law for the
strict observance of investment and construction procedures, for the quality of
their consultancy products in the pre-feasibility and feasibility study
reports, survey dossiers, technical designs and total cost estimates, as well
as other consultancy contents; be subject to regular inspection by investors
and agencies exercising the State management over the investment and
construction.
3. Responsibilities of the construction
contractors:
a) To be allowed only to contract the
construction of projects in strict accordance with investment and construction
procedures and suitability to their financial capabilities; to construct in
strict accordance with the approved designs; to correctly apply the prescribed
construction technical criteria and be subject to the regular supervision and
inspection of the project quality by the investors, the designing organizations
and the State appraisal bodies according to their respective assigned
responsibilities for control of quality of construction works;
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c) Materials and construction structures used in
the projects must be evidenced with quality certificates being sent to the
investors for inspection before they are used according to the regulations;
d) To organize the project quality control
system in order to control the construction products during the process of
construction.
4. Responsibilities of the State management
bodies in charge of construction quality control:
a) The Ministry of Construction shall exercise
the unified State control of the construction works quality nationwide, having
the responsibilities:
- To promulgate regulations and guiding documents
on ensuring the quality of construction works;
- To guide the inspection of the application of
process of controlling the construction quality, construction technical
criteria and certify the construction quality under the State’s
standards;
- To organize regular and irregular inspection
of quality of constructions throughout the country, particularly the quality of
Group A projects, promptly reorganize the work of construction quality control
upon detection of any mistakes. Biannually, the Ministry of Construction shall
have to report to the Prime Minister on the quality of constructions and
projects under construction in order to work out timely handling measures and
to ensure safety for production and users as well as the investment efficiency;
b) The provincial/municipal Construction
Services are agencies of the People’s Committees of the provinces and
centrally-run cities to exercise the State control of the quality of
constructions in their respective provinces and cities, which shall also take responsibility
for the quality of Group B and C construction projects in the localities.
Article 47.- Test on
completion and acceptance of construction projects
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2. The test on completion and acceptance of part
or whole of a construction project shall be carried out by the investor with
the participation of consultancy, designing, construction and installation
organizations as well as equipment supplier (if any) and quality expertising
agency according to the assigned responsibility.
For project sections and items or important
projects which require fire and explosion prevention and combat or which, when
being put to exploitation and use, cause adverse impacts on the environment,
there must be written approval of the above-said requirements by the concerned
State management bodies when they are tested on completion and accepted before
being put into use.
3. For a number of projects which are important
or require complicated techniques and technologies, the Prime Minister shall
decide the establishment of the State Council for Test on Completion and Acceptance
at the request of the Minister of Construction or heads of the ministries with
projects to inspect the performance of the test on completion and acceptance
work by investors. The grassroots Councils for Test on Completion and
Acceptance set up by investors shall have to assist the State Council for Test
on Completion and Acceptance to organize the project test on completion and
acceptance as prescribed.
4. The Ministry of Construction shall provide
detailed guidance on the work of quality control, test on completion and
acceptance of construction projects.
Article 48.- Handling
of project incidents
1. In the course of project construction,
warranty and use, if any incident occurs, the investors, the project users and
the local administration shall have to protect the scenes, promptly report and
declare the incident to the competent State bodies.
2. The contents of the handling of project
incidents shall be guided jointly by the Ministry of Construction and the
Ministry of Justice.
Article 49.- Granting
and payment of investment capital
1. For construction and installation projects or
bidding packages implemented in the form of bidder designation, the investment
capital payment shall be based on the value of performed work volume checked
and accepted monthly according to the signed contracts.
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2. For construction and installation projects or
bidding packages opened for bidding, the payment can be made in advance and
according to the volume of performed work under the following regulations:
a) Advance of capital:
- For bidding packages valued at 50 billion
VNdong or more each, the advance level shall be equal to 10% of the contract
value but shall not exceed the annual capital plan of the bidding package;
- For bidding packages valued at from 10 to
under 50 billion VN dong, the advance level shall be equal to 15% of the
contract value but shall not exceed the annual capital plan of the bidding
package;
- For bidding packages valued at under 10
billion VN dong, the advance level shall be equal to 20% of the contract value
but shall not exceed the annual capital plan of the bidding package;
The advance of capital shall be made immediately
after the contracts take effect.
b) Recovery of advance capital:
- The time for recovering the advance capital
will begin when the bidding package receives payment for the completed work
volume achieving 20%-30% of the work volume value;
- The advance capital shall be gradually
recovered in every period of payment for the completed work volume and
completely recovered when the bidding package receives the payment for the
completed work volume reaching 80% of the work volume value.
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4. For consultancy contracts, the minimum
advance level is equal to 25% of the value of the bidding package, but shall
not exceed the amount allocated from the whole year’s capital plan for hired consultancy.
5. The maximum capital amount advanced for ground
clearance shall not exceed the annual capital plan and be recovered when the
ground clearance compensation is completed.
6. The Ministry of Finance shall have to
consider and decide the capital advance on a case-by-case basis for a number of
construction structures or semi-finished products of great value, which must be
manufactured in advance in order to keep the investment tempo, and materials of
a number of special types or materials to be seasonally reserved as well as a
number of other activities of other expenditure categories when necessary.
7. For projects financed by foreign capital or
bidding packages opened for international bidding with the advance of capital
and other payments being stipulated in the credit agreements signed with the
Vietnamese Government, such agreements shall apply.
8. If in the year the construction is completed
or the project items or projects are put into exploitation and use, the full
payment for the volume of construction and installation of such project items
or projects in that year shall be made only when the final settlement of
projects is made with the investors; for foreign contractors, the temporary
withholding of capital and payment shall comply with the international
practices.
9. The investment capital shall be paid
according to schedule and bid winning price (for package contracts) or bid
winning unit price and specific terms written in the contracts (for contracts
with article on price adjustment), based on the test-running and acceptance of
project volume and quality in each period of payment. Upon the completion of
the project, the settlement of bidding packages must not exceed the total cost
estimate and the total investment already approved by the persons competent to
decide the investment.
10. In the course of project execution, if the
investor delays the payment for the completed work volume, he/she shall have to
pay the bank loan interests to the contractor for such volume of late payment,
including even the bidding and bidder appointment or other forms of bid
hand-over. On the contrary, if the contractor fails to fulfill the commitments
made in the contract, thus causing economic loss to the project, the investor
shall apply the regime of fine as prescribed by law.
11. The above stipulations shall also apply to
contracts between the main contractors and the subcontractors; the main
contractors, the subcontractors and the investors shall have to fully implement
them.
12. For non-business capital used for
construction and capital for branch and territorial development planning as
well as urban and rural construction planning, the settlement of investment
capital shall be guided by the Ministry of Finance after consulting the
Ministry of Planning and Investment and the Ministry of Construction.
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COMPLETION OF
CONSTRUCTION AND PUTTING PROJECTS INTO EXPLOITATION AND USE
Article 50.- Completion
of construction and putting projects into exploitation and use
Work to be performed upon the completion of
construction shall include:
1. Test-running, accepting and handing over the
projects.
2. Effecting the completion of project
construction.
3. Operating the projects and guiding the use of
the projects.
4. Providing warranty for the projects
5. Making final settlement of the investment
capital.
6. Approving the final settlement.
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1. A construction project shall only be fully
handed over to the investor when its construction and installation is completed
according to the approved design, it operates in accordance with the technical
requirements and the test-running and acceptance meet the quality requirements
(including the completion of the project interior and exterior and the ground
cleaning).
Depending on specific conditions of each
project, in the course of construction, parts and items of the project or
constituent projects may be temporarily handed over for exploitation in order
to create sources of capital for accelerating the completion of the entire
project.
2. When the entire project is handed over, the
dossiers on the project completion, documents on matters related to the project
hand-over and all documents of instructions on the use, management and
maintenance of the project.
All dossiers on project construction must be submitted
for archival purposes according to the provisions of legislation on State
archive.
The record on the general project test-running,
acceptance and hand-over shall serve as a legal document for the investor to
put the project to exploitation and use and for the final settlement of
investment capital.
3. For new urban area projects, upon the
completion of infrastructure development projects or new urban area development
projects, the investors shall have to compile the dossiers on the project
completion and hand over the management of the exploitation and use of the
entire infrastructure works on the land area of the project to the
provincial-level People’s
Committee for exploitation and use management.
One month before the project hand-over is
organized, the investor and the provincial-level People’s Committee shall have to complete the
inventory of the public property, revaluate the fixed assets, maintain and
repair infrastructures, complete the documents of instructions on the use,
management and maintenance of the project before the hand-over.
The provincial-level People’s
Committee shall have to organize the acceptance of infrastructure works and
hand them over to the specialized organizations for management, exploitation
and use, and at the same time fill in the procedures for the establishment of
new administrative unit as prescribed by law.
4. For infrastructure development projects and
new urban area development projects which must be built for many years, the
hand-over may be organized in various phases according to the project
investment phasing plan already approved by the competent State bodies.
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1. The construction activities shall end when
the entire project is handed over to the investor.
2. After the hand-over of the project, the
construction contractor shall have to liquidate or remove all of his/her
property from the project construction area and return the land borrowed or
rented in service of the construction according to the contract, and shall have
to monitor and repair the project damage until the expiry of the project
warranty duration.
3. The construction and installation contract
shall only terminate completely and be fully liquidated and settled after the
expiry of the project warranty duration.
4. The tested and accepted construction projects
must be registered by the investors as their assets according to the provisions
of law. The dossiers for asset registration shall be the general project test,
acceptance and hand-over record.
Article 53.- Operating
projects
1. After accepting a project, the investor shall
have to exploit its capacity, synchronize the production, business and service
organization, improve the organization and management method in order to bring
into full play the economic and technical norms set in the project.
2. The investor or the organization assigned to
manage and use the project shall have to maintain it.
3. The Ministry of Construction shall guide and
stipulate the regime of project maintenance.
Article 54.-
Construction project warranty
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The minimum project warranty duration shall be
calculated from the date the contractor hand over the to be- guaranteed project
or project items to the investor and is stipulated as follows:
a) The 24-month warranty for important works of
the State and works of Group A projects;
b) The 12-month warranty for other works.
2. The minimum amount of money for project
warranty:
The minimum amount of money for project warranty
is calculated in percentage (%) of the value of the construction and
installation volume of project items in the warranty duration is stipulated as
follows:
- For projects with the minimum warranty period
of 24 months, it is 3%;
- For projects with the minimum warranty period
of 12 months, it is 5%;
- The construction warranty money shall bear
interests like bank deposits;
- Work or contracts performed by foreign
contractors shall be calculated according to the international practices.
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1. When conducting investment and construction,
the investor shall have to buy insurance for the construction works at an
insurance company operating lawfully in Vietnam.
2. The expense for the insurance of the
construction works is part of the investment capital of the project, calculated
into the total cost estimate (cost estimate) for the construction works, which
has been approved. The insurance expense is calculated in percentage (%) of the
value of the construction work.
3. The consultancy organizations and
construction and installation contractors shall have to buy insurance for the
supplies, equipment and houses and workshops in service of the construction,
buy accident insurance for the laborers, the civil liability insurance for the
third entity, insurance for surveying and designing products in the course of
project execution. The insurance premiums shall be calculated into the
production cost.
4. The insurance terms, the rights and
obligations of the parties involved in the insurance shall be agreed upon by
parties but must not contravene the provisions of Vietnamese laws or
international practices.
5. When incidents occur, the insurance company
shall have to promptly make the compensation for damage incurred according to
the provisions of legislation on insurance.
6. The Ministry of Finance shall provide
detailed guidance on the regime of insurance for construction works.
Article 56.- Final
settlement of investment capital
1. All investment projects of the State bodies
and State enterprises must have their investment capital finally settled when
they are completed and put into exploitation and use. The investors shall have
to make the final settlement of account of the investment capital.
2. Within 6 months after a project is completed
and put into operation, the investor shall have to complete the report on the
final settlement of investment capital for submission to the person competent
to decide the investment.
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4. The report on the final settlement of
investment capital must determine fully and accurately the investment capital
allocated annually, the total capital invested in the execution of the project;
the value of asset handed over for production and use. For investment projects
lasting for many years, when making the final settlement of accounts, the
investors shall have to convert the investment capital already allocated into
base value at the time of hand-over and putting the project into operation in
order to determine the new increase of the fixed asset and the value of assets
handed over.
5. The Ministry of Construction shall coordinate
with the Ministry of Finance and the Ministry of Planning and Investment in
guiding the unified capital conversion method for application by the investors
in making the final settlement.
6. The Ministry of Finance shall provide
guidance on the time for making the final settlement, on the contents of the
final settlement report, the examination and ratification of the final
settlement of investment capital of the projects funded by State-budget
capital, investment credit capital of the State, credit capital guaranteed by
the State, and/or capital mobilized by State enterprises for development
investment.
Article 57.-
Examination and ratification of final settlement of investment capital
All investment projects using State-budget
capital, State-guaranteed credit capital and/or development investment credit
capital of the State must have the final settlement of their investment capital
examined and ratified according to the following provisions:
1. Examination of final settlement of investment
capital:
Before the final settlement of investment
capital is ratified, all reports on the final settlement must be examined. The
person competent to ratify the final settlement shall decide form of organizing
the examination of final settlement of accounts according to the regulations:
a) The examination of the final settlement shall
be organized by the functional agency of the level competent to ratify the
final settlement or by a hired auditing organization;
b) Responsibility for examination of final
settlement:
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- For projects examined by the auditing
organization, the auditing organization shall bear full responsibility for the
examination results; the functional examination agency shall have to bear the
responsibility for the re-examined contents.
2. Ratification of the final settlement of
investment capital:
a) The Minister of Finance shall ratify the
final settlement of investment capital of Group A projects of the State under
the Prime Minister’s
authorization;
b) For the remaining projects, the persons
competent to decide the investment shall ratify the final settlement of
investment capital.
3. The expense for examination and ratification
of final settlement of investment capital shall be accounted into the approved
total cost estimate. The Ministry of Finance shall guide the management of the
expenses for examination and ratification of final settlement of investment
capital.
Article 58.- Refunding
the investment capital
1. The recovery of investment capital is a
compulsory principle for all investment projects which require the capital
recovery as prescribed.
2. For investment projects financed by
State-budget capital, State-guaranteed credit capital, development investment
credit capital of the State and/or investment capital of enterprises whose
investors shall have to refund the capital or repay the borrowed capital, the
sources of capital to be recovered shall include the total basic depreciation
amount, part of the profits and other capital sources (if any).
Where the capital cannot be fully recovered and
repaid, the investors shall have to bear responsibility according to the
provisions of law.
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Chapter V
FORMS OF MANAGEMENT OF
PROJECT EXECUTION
Article 59.- Forms of
management of project execution
Depending on the scale and nature of projects
and their financial capabilities, the investors shall opt for one of the
following forms of management of project execution:
1. The investor shall directly manage the
project execution;
2. The manager shall run the project;
3. Turn-key project;
4. Self-execution of the project.
For projects funded by State budget capital,
State’s
investment credit capital and/or State-guaranteed credit capital, the investors
shall have to submit to the persons competent to decide the investment the form
of management of the project execution for decision.
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Article 60.- Form of
direct management of project execution by the investor
1. The investor must have a fully capable
project management apparatus or set up a project management board to manage the
project.
2. The investor or the project management board
shall have to register his/her or its operation at the competent agency.
Article 61.- The form
of management of project by the manager
1. If the investor has no conditions to directly
manage the project execution, he/she shall have to hire a specialized body or
to assign the specialized management board to act as manager of the project;
the investor shall have to report the project management organization to the
person competent to decide the investment for approval.
2. The project manager shall be a legal person
having the investment and construction consultancy capability and registration.
3. The project manager shall have the
responsibility:
a) To directly sign contracts and settle
contracts (if so assigned by the investor) or establish contacts for the
investor to sign and settle contracts with surveying, designing, materials and
equipment-supplying, construction and installation organizations and settle
contracts with contractors based on the confirmation by the project manager;
b) To act on behalf of the investor to supervise
and manage the entire process of project execution;
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Article 62.- Form of
turn-key
1. The form of turn-key shall apply when the
investor is allowed to organize bidding to select the general contractor for
the execution of the entire project from the surveying, designing, procurement
of supplies and equipment, construction and installation till the project is
handed over and put into exploitation and use.
The general contractor for the project execution
may subcontract the surveying, designing or part of the construction and
installation volume to subcontractors.
2. For projects using capital sources defined in
Articles 10 and 11 of this Regulation, the turn-key form shall only apply to Group
C projects; for other cases, the Prime Minister’s permission is required.
3. The investor shall have to organize the
test-running and acceptance of the project when it is completed and put to use.
Article 63.- Form of
self-execution of project
1. Investors who are fully capable of carrying
out production and construction activities suitable to the project’s
requirements may apply the form of self-execution of the project.
The form of self-execution of project shall only
apply to projects using the lawful capital of the investor him/herself (own
capital, borrowed capital, capital mobilized from other sources).
2. When applying the form of self-execution of
project (self-production, self-construction), the investor shall have to
strictly supervise the production and construction and take responsibility
before law for the quality of the product and the quality of the construction
works.
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Chapter VI
CONSTRUCTION COST
Article 64.- Principles
for elaborating construction cost estimates
1. Projects using State-budget capital,
State-guaranteed capital and/or development investment credit capital must draw
up all documents on estimate of necessary cost of the construction work.
2. The investor and the consultancy organization
shall have to base themselves on the State’s regulations on management of
construction costs to elaborate and submit to the competent person for
ratification the total cost estimate and construction item cost estimates,
which shall serve as basis for organizing the construction and installation
bidding and the cost management after the bidding.
3. The construction and installation contractor
shall base on the State’s
regulations on management of construction costs as reference when elaborating
the price offered in the bid for construction works.
Article 65.- Management
of construction costs
1. The State shall manage the construction costs
through the promulgation of regimes and policies, principles and methods for
elaborating unit prices and estimates; technical and economic norms; norms for
investment and construction consultancy expenses; the investment capital ratio
so as to determine the total investment of the project, the total cost
estimate, the construction cost estimate.
2. The Ministry of Construction shall, together
with the concerned ministries and State management bodies at different levels,
have to manage the construction costs, based on the above-mentioned principles.
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4. The Ministry of Construction shall guide the
elaboration and management of construction costs.
Article 66.- The total
cost estimate, construction item cost estimates
1. The total project cost estimate shall serve
as basis for the management of construction costs, including costs of
surveying, designing, construction and installation, equipment procurement,
land use, compensation for ground clearance, resettlement of population, construction
work insurance premiums, taxes, other expenses including those for relevant
scientific and technological studies with regard to Group A projects and a
number of other projects with special requirements, permitted by the persons
competent to decide the investment, and 10% reserve expense (including
inflation rate and newly arising volume).
2. For construction and investment projects of
State enterprises, the construction cost in all forms of bidding, bidder
designation or self-execution must not exceed the total construction cost
estimate of construction item cost estimates, which have already been ratified.
Where due to force majeure reasons, the arising cost exceeds the ratified total
construction cost estimate or construction item cost estimate, the appraisal
thereof must be conducted and reported to the persons competent to decide the
investment for consideration and decision.
Chapter VII
INSPECTION, EXAMINATION
AND HANDLING OF VIOLATIONS
Article 67.- Inspection
and examination of investment and construction activities
1. All investment and construction activities by
organizations and individuals, including foreigners and overseas Vietnamese
operating on the Vietnamese territory shall be subject to inspection and
examination by the functional State bodies according to each field of
management, with distinction of projects using State-budget capital,
State-guaranteed credit capital, development investment credit capital of the
State and/or investment capital of State enterprises, joint-venture enterprises
or people.
2. Depending on specific conditions of each
investment project, the inspection and examination can be conducted for each or
all stages of the investment and construction process.
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Article 68.- Handling
of violations.
1. Any organizations or individuals, including
foreigners and overseas Vietnamese, conducting investment and construction activities
on the Vietnamese territory that breach the provisions of this Regulation
shall, depending on the nature and seriousness of their breaches, be
administratively sanctioned or examined for penal liability; if they cause
damage they shall have to compensate therefor as prescribed by law.
2. The functional State bodies as well as State
officials and employees performing the State management over investment and
construction, that fail to fulfill their assigned tasks, set by themselves the
procedures or requirements beyond the regulations, delay the settlement of
requirements of individuals, enterprises, agencies as well as investment and
construction agencies even when they have satisfied all prescribed conditions,
shall, depending on the nature and seriousness of the violations, be
disciplined or examined for penal liability; if damage is caused, the
compensation shall be made therefor according to the provisions of law.
Chapter VIII
IMPLEMENTATION PROVISIONS
Article 69.- The
ministers, the heads of the ministerial-level agencies, the heads of the
agencies attached to the Government, the presidents of the People’s
Committees of provinces and centrally-run cities and the Managing Boards of the
State Corporations shall have to organize the implementation of this Regulation
and shall not promulgate separate guiding documents for each ministry, branch
and locality (except for the ministries so assigned by the Government as stated
in this Regulation).
The Minister of Construction shall, together
with the Ministry of Planning and Investment and the Ministry of Finance,
coordinate with other concerned branch-managing ministries in monitoring and
inspecting the implementation of the Regulation on Investment and Construction
Management.
Article 70.- This
Regulation takes effect 15 days after its signing and shall apply to all
economic sectors throughout the country.
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ON BEHALF OF THE GOVERNMENT
PRIME MINISTER
Phan Van Khai
APPENDIX
CLASSIFICATION OF INVESTMENT PROJECTS UNDER THE
REGULATION
ON INVESTMENT AND CONSTRUCTION MANAGEMENT
(Issued together with Decree No. 52/1999/ND-CP of July 8, 1999 of the
Government)
The investment projects (excluding foreign
direct investment projects) are classified into 3 groups A, B and C according
to the following regulations:
ORDINAL CLASS OF INVESTMENT PROJECTS TOTAL
INVESTMENT NUMBER CAPITAL
I. GROUP A
1 Projects on protection of national security
and defense, which are of Unlimited State secrets, projects of important socio-political
significance, establishing and building new industrial park infrastructure
2 Projects on production of noxious substances,
explosives regardless Unlimited f investment capital scale
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4 Projects on: irrigation, traffic (other than
those mentioned in I.3 above), water Over 200 billion supply and drainage,
technical infrastructure electric technology, production VNdong f information,
electronic, informatics, chemo-pharmaceutical, medical equipment, other
mechanical engineering structures, production of materials, post and
telecommunication, domestic BOT, construction of living quarters, intra-city
roads in urban areas with detail planning already ratified
5 Projects on: technical infrastructure of new
urban areas; projects on light indus- Over 100 billion rial production,
chinaware, porcelain, glassware, printing; national parks, nature VNdong
onservation zones, construction equipment procurement, agricultural and fores-
trial production, aquaculture, agricultural and forestrial products processing.
6 Projects on: healthcare, culture, education,
radio, television, civil construction, Over 75 billion arehouse, tourism,
physical training and sports, scientific research and VNdong ther projects
II. GROUP B
1 Projects on: power industry, petroleum,
chemicals, fertilizers, machine- From 30 to 400 building (including ship
purchase and building, car assembly), cement, billion VNdong etallurgy,
minerals exploitation and processing; traffic projects: bridges, seaports
airport, railways, national highways
2 Projects on: irrigation, traffic (other than
those defined in point II.1); water supply From 20 to 200
and drainage, technical infrastructure, electric technique, production of
billion VNdong nformation, electronic, informatic, chemo-pharmaceutical,
medical equipment, other mechanical engineering structures, production of
materials; construction of living quarters, general education schools,
intra-city roads in urban areas with detailed planning already ratified
3 Technical infrastructure projects of new urban
areas; projects on light industry, From 15 to 100 chinaware, porcelain,
glassware, printing; national parks, nature conservation billion VNdong ones,
construction equipment, agricultural and forestrial production, aquaculture,
agricultural and forestrial products processing
4 Projects on: healthcare, culture, education,
radio, television, civil building, ware- From 7 to 75 ouses, tourism, physical
training and sports, scientific research, and other billion VNdong rojects
III. GROUP C
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2 Projects on: irrigation, communications (other
than those defined at Point Under 20 billion II.1), water supply and drainage,
technical infrastructures, electric VNdong echnique, electronics, informatics,
chemo-pharmaceuticals, medical equipment, other mechanical engineering works,
materials production, post and telecommunications, domestic BOT, construction
of residential house quarters, general education schools, intra-city traffic
roads of urban areas having detailed planning already approved
3 Projects on: technical infrastructure of new
urban areas; projects on light Under 15 billion industry, chinaware, porcelain,
glassware, printing, national parks, nature VNdong onservation zones,
construction equipment, agricultural and forestrial production, aquaculture,
agricultural and forestrial product processing
4 Projects on: Healthcare, culture, education,
radio, television, civil construction Under 7 billion warehouses, tourism,
physical training and sports, scientific research and VNdong other projects
Notes:
1. Group A projects on railways or land roads must
be phased out according to the length and grades of railways or roads as well
as bridges under the guidance of the Ministry of Communications and Transport
after consulting the Ministry of Planning and Investment.
2. Projects on the construction of working offices
and buildings of State bodies must be implemented under the Prime Minister’s
decisions.-
ON BEHALF OF THE GOVERNMENT
PRIME MINISTER
Phan Van Khai
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