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THE
GOVERNMENT
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SOCIALIST
REPUBLIC OF VIET NAM
Independence - Freedom – Happiness
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No.
42-CP
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Hanoi
July, 16, 1996
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DECREE
PROMULGATING THE REGULATION ON THE MANAGEMENT OF INVESTMENT
AND CONSTRUCTION
THE GOVERNMENT
Pursuant to the Law on Organization of the
Government of September 30, 1992;
At the proposals of the Minister of Construction, the Minister of Finance and
the Minister of Planning and Investment,
DECREES:
Article 1.- To issue
together with this Decree the Regulation on the Management of Investment and
Construction in replacement of the Regulation on the Management of Investment
and Construction issued together with Decree No.177-CP of October 20, 1994.
Article 2.- This Decree
takes effect from the date of its signing.
Article 3.- The Minister
of Construction shall preside over the coordination with the Ministry of
Finance, the Ministry of Planning and Investment and the concerned Ministries
and branches in guiding and supervising the implementation of the Regulation on
the Management of Investment and Construction issued together with this Decree.
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ON BEHALF OF
THE GOVERNMENT
THE PRIME MINISTER
Vo Van Kiet
REGULATION
ON THE MANAGEMENT OF INVESTMENT AND CONSTRUCTION
(issued together with Decree No.42-CP of July 16, 1996 of the Government on
amendments and supplements to Decree No.177-CP)
Chapter 1
GENERAL PROVISIONS
Article 1.-
Interpretation of terms:
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1. "Management of Investment and
Construction" means the State management over the investment and
construction process from the determination of the project of investment to the
putting of the project into operation or use to achieve the set objective.
2. "Investment project" means an
assortment of proposals concerning the disbursement of capital to create,
expand or renovate a given number of installations in order to increase the
quantity or improve or raise the quality of some products or services within a
given period.
3. "Construction project" is a product
of the construction and installation technology associated with land (including
water surface, sea surface and continental shelf) which is made of construction
materials and with the use of equipment and labor.
A construction project may consist of one or
more installations in a complete and assorted technological line (along with
production cooperation) in order to turn out the end-product stated in the
project.
4. "State capital" is the capital
under or originating from the ownership of the entire people under unified
State management and in accordance with law.
5. "Ministry in charge of a branch" is
the Ministry, the ministerial-level agency or the agency attached to the
Government having the function of managing a certain branch throughout the
country in accordance with the provisions of the Law on Organization of the
Government.
6. "Agency competent to decide the
investment" is a State organization or State agency assigned or empowered
by the Government to decide the investment in accordance with the provisions in
Article 7 of this Regulation.
7. "Investor" is an individual or an
organization with legal person status which has the responsibility to directly
manage and use the invested capital in accordance with the provisions of law.
- With regard to investment projects using State
capital or projects in which the State holds the predominant share or a special
share, the investor shall be a State enterprise (corporation, company), a State
agency, a political organization, a socio-political organization or a project
management organization, entrusted by the agency competent to decide the
investment with the responsibility of directly managing and using the
investment capital.
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- With regard to investment projects of
individuals, the investor shall be the owner of the capital.
- With regard to foreign direct investment
projects, the investor shall be the parties to a business cooperation project
(such as a business cooperation contract); the Managing Board (such as a
joint-venture enterprise); the foreign organization or individual foreigner
that owns all the investment capital (such as an enterprise with 100% of
foreign investment capital and BOT project).
8. "Total investment" is the maximum
expenditure allowed by the agency competent to decide the investment for the
investor to select from optional plans for carrying out the investment project.
9. "Total cost estimate of the
project" is the total expenditure needed to build the planned project
which is concretely calculated in the phase of technical designing. The total
cost estimate of the project comprises expenditures related to the survey,
designing, construction and installation, purchase of equipment, expenditures
on the use of land, compensations and ground clearance, reserve and other
expenditures.
10. "Investment capital to be settled"
is the whole of lawful expenditures already made in the process of investment
for putting the project into operation or use. Lawful expenditures are those
made in accordance with the signed contract and the State accounting regime and
audited at the request of the agency competent to decide the investment.
11. "Construction criteria" are the
technical criteria set for carrying out the survey, designing, installation and
construction, test operation on completion to ensure the quality of the
project. They differ from one branch of construction to another and are issued
by the State or the Ministries in charge of specialized construction services.
12. "Construction norms" are the
documents defining the minimum technical requirements which are compulsory to
all construction activities as well as construction and construction criteria
to be used so as to meet those requirements. They are issued solely by the
Ministry of Construction.
Article 2.- Fundamental
requirements for the management of investment and construction.
The management of investment and construction
aims to:
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2. Mobilize and make the most effective use of
investment capital from both domestic and foreign sources in Vietnam; properly
exploit the natural resources, labor, land and all other resources while
protecting the ecological environment, combating all acts of corruption and
wastefulness in investment and construction activities.
3. Carry out the constructions in accordance
with the approved general plan, architecture and technical design so as to
ensure their durability and the beauty of landscapes. Allow competition in the
construction to induce the application of advanced construction technology, to
ensure the construction quality and schedule at reasonable costs and provide
warranty for the construction.
Article 3.-
Fundamental principles in the management of investment and construction
1. The State exercises unified management of
investment and construction over all economic sectors in terms of the
objectives of the socio-economic development strategies; general planning and
branch and territorial development planning; general zoning and urban and rural
construction plans; construction norms and criteria; selection of technology,
use of land, natural resources, protection of the ecological environment;
technical design, architecture, construction and installation, insurance and
construction warranty and other social aspects of the project.
For investment projects using State capital, the
State also performs its management over the business, finance and economic
efficiency of the project.
2. The order of construction and investment must
be strictly observed.
3. A clear distinction must be made between the
function of State management and that of production and business management.
The responsibilities of the State management agencies, the investor, the
consultancy organizations, the construction enterprises and the material and
equipment supply businesses must be clearly defined during the course of
investment and construction.
Article 4.- Order of
investment and construction:
Investment and construction shall be effected in
three stages:
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2. Implementation of investment
3. Completion of construction and putting the
project into operation or use.
Article 5.-
Classification of investment projects:
Depending on their form, nature and scale, the
domestic investment projects are divided into 3 groups: A, B and C. The
characteristics of each group are defined in the Appendix attached to this
Regulation. The projects with foreign direct investments are classified
according to the current stipulations of the State.
Article 6.- The
responsibility for State management over the investment and construction.
1. The Ministry of Planning and Investment:
The Ministry of Planning and Investment shall
have to study and develop the mechanism and policies on economic management and
State management of domestic and foreign investment in Vietnam; identify the
orientation and structure for inviting foreign investment in Vietnam and
ensuring the balance between domestic investment and foreign investment then
submit them to the Government for decision. The Ministry shall submit to the
Government draft laws, ordinances and legal documents concerning the mechanism
and policies on economic management and promotion of domestic and foreign
investment with a view to achieving an economic structure suited to the
strategy, planning and plans for socio-economic stabilization and development.
It shall issue investment permits and provide guidance for enterprises with
foreign investment capital to make preparations for investment in accordance
with the Law on Foreign Investment in Vietnam and relevant provisions of this
Regulation. It shall, within its jurisdiction, organize the evaluation of the
investment projects in Group A and submit them to the Prime Minister for
consideration and decision; synthetize and submit to the Prime Minister annual
and five-year development investment plans; coordinate with the Ministry of
Finance in examining and supervising the implementation of investment plans
funded by the capital under State management; ensure the necessary factors to
carry out the plan of putting the results of investment into operation part by
part. It shall also preside over the coordination with the Ministry of
Construction and the Ministry of Trade as well as other Ministries, branches
and localities in guiding and supervising the implementation of the Regulation
on Bidding.
2. The Ministry of Construction:
The Ministry of Construction shall study and
work out the mechanism and policies on the management of construction as well
as the urban and rural construction plan, then submit them to the Prime
Minister for approval and promulgation or it may be empowered by the Prime
Minister to promulgate them; issue or let the Ministries in charge of
specialized construction issue the standards, rules and regulations on the
management of the project quality and construction economics (a system of
economic and technical norms and indice in construction, standard prices and
construction unit price). It shall evaluate the total cost estimates of
projects in Group A for approval by the Ministry in charge of the branch;
exercise unified State management of the quality of construction projects and
the issuing of qualification certificates in consultancy businesses in
construction and installation. The Ministry of Construction shall preside over
and coordinate with the Ministry of Planning and Investment, the Ministry of
Finance and other Ministries, branches and localities in guiding and
supervising the implementation of the Regulation on the Management of Investment
and Construction.
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The Ministry of Finance shall perform the
function of State management over financial matters in the field of development
investment; study and develop the policies and regimes on the management of
investment capital and promulgate them within its jurisdiction or submit them
to the Prime Minister for promulgation. On the basis of national socio-economic
development plans and the major balances of the national economy, it shall, in
coordination with the Ministry of Planning and Investment, elaborate the plan
for allocating development investment capital to the Ministries, localities and
important projects of the State. It shall exercise unified management of
foreign loans and aid of the Government allocated for development investment;
inspect and examine financial matters in the organizations and establishments
utilizing State investment capital, guide and examine the use of such capital.
The General Department of Development Investment
has the task of assisting the Minister of Finance in organizing the allocation
of investment capital, granting and recovery of preferential credits of the
State (including foreign loans and aid of the Government for development
investment) with regard to the projects, objectives and programs under the
investment plan and the instruction of the Prime Minister.
4. The State Bank of Vietnam:
The State Bank of Vietnam shall study the
mechanisms and policies on State management of currencies and bank credits in
investment and construction and submit them to the Prime Minister for
promulgation or it may be empowered by the Prime Minister to promulgate them.
It shall guide the Investment and Development Bank, commercial banks and other
financial and credit organizations in mobilizing capital from various sources
in the country and abroad to provide long-term and mid-term loans for projects
and short-term loans in service of development investment, production and
business; assure the regime of security of bidding participation and security of
contractual performance by Vietnamese contractors when they participate in
international bidding in accordance with the regulations of the Prime Minister.
The banks shall themselves decide the loans from the mobilized capital and
recovery of debts at market interest rates.
5. Ministries in charge of concerned branches:
- The Ministries in charge of different branches
relating to land, natural resources, technology, environment, trade, the
maintenance and conservation of historical relics, cultural heritage and
picturesque landscapes, national defense, security, fire prevention and combat,
shall examine and make written recommendations on relevant issues of the
investment projects within 20 days after receiving of the written request from
the agency competent to decide the investment and permission of investment in
the project. Within 20 days, if there is no reply from the concerned
Ministries, it shall be deemed that these Ministries have consented to the
written request.
- The concerned Ministries shall provide
concrete guidance for the implementation of the mechanisms and policies on the
branch development investment and on the State management of investment
projects in the branch and, at the same time, are entitled to propose the
suspension of any investment and construction activity which contravenes the
regulation under their State management authority.
- The Ministries in charge of specialized
construction services (the Ministry of Construction with regard to industrial
or civil project construction; the Ministry of Transport and Communications
with regard to the construction of communications and transport projects; the
Ministry of Industry with regard to the construction of mines, power
transmission and transformation projects; the Ministry of Agriculture and Rural
Development with regard to the construction of water works, agricultural and
forestry projects; the General Department of Post with regard to the
construction of postal projects) shall provide detailed guidance for the
implementation of the construction mechanisms and policies suited to the
characteristics of each specialized service; study and issue, within the
responsibilities assigned by the Government, the technical norms, procedures
and rules in construction; work out the specialized economic and technical
norms and issue them after obtaining the consent from the Ministry of
Construction.
6. The People’s Committees of the provinces and
cities directly under the Central Government.
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Article 7.- Competence
to decide the investment, permit the investment and grant investment licenses.
1. Competence to decide investment in projects
using State capital.
a) The Prime Minister shall decide the
investment in the projects of Group A.
b) The Ministers, the Heads of the
ministerial-level agencies and the agencies attached to the Government, the
People’s Committees of the provinces and cities directly under the Central
Government shall decide the investment in projects of Groups B and C. In
particular, for the projects of Group B, prior to any decision on the
investment, consent must be sought from the Minister of Planning and Investment
to the investment plan and from the Minister in charge of the branch to the
general planning for the branch development and the economic and technical
norms of the project.
c) The Minister of Planning and Investment shall
decide the investment in the ODA projects capitalized at under 1.5 million USD
(excluding the capital from domestic sources).
d) The General Departments and the Departments
under the Ministries shall, as empowered by the Ministers, decide the investment
in the projects of Group C.
e) The Managing Boards of the Corporations
established under Decision No.91-TTg of March 7, 1994 of the Prime Minister may
decide the investment in Group-B projects capitalized at less than 50% of the
capital level of the Group B projects specified in the appendix on the
classification of investment projects attached to this Regulation and to decide
the investment in the projects of Group C. Any special case outside the above
stipulation must be approved by the Prime Minister. In particular, with regard
to projects of Group B, before a decision on the investment is made, Point 1 -
b of this Article shall be observed.
f) The Managing Boards of the Corporations
established under Decision No.90-TTg of March 7, 1994 of the Prime Minister are
entitled to decide the investment in projects of Group C.
g) The Presidents of the People’s Committees of
Hanoi and Ho Chi Minh cities shall may empower the Presidents of the district
People’s Committees to decide the investment in the projects capitalized at
less than 2 billion VND, depending on the specific conditions of each city. For
other provinces and cities, the Presidents of the provincial/municipal People’s
Committees may empower the Presidents of the district People’s Committees to
decide the investment in the projects capitalized at less than 500 million VND,
depending on the specific conditions of each locality.
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a) The Minister of Planning and Investment shall
grant investment licenses to the projects of Group A if the Prime Minister
permits the investment.
b) The Presidents of the People’s Committees of
the provinces and cities directly under the Central Government shall permit
and, at the same time, grant investment licenses to projects of Group B with
approval from the Minister in charge of the branch.
c) The provincial/municipal Planning and
Investment Services shall grant investment licenses to projects of Group C if
permission for investment is gotten from the Presidents of the People’s
Committees of the provinces and cities directly under the Central Government.
3. For the projects with foreign direct
investment, the Law on Foreign Investment in Vietnam shall apply.
Article 8.-
Responsibilities of the investors and the construction consultancy
organizations, equipment suppliers and construction and installation
organizations.
1. Responsibilities of the investor:
a) The investor shall have to organize the execution
of the investment project contracted in accordance with the current law.
b) The investor may use capital of different
sources as prescribed by this Regulation in order to draw up the project and
shall take the responsibility for the overall and uninterrupted management of
the utilization of the investment capital sources right from the time the
project is drawn up till it is completed and put into operation in accordance
with the requirements set in the approved project.
c) The investor shall have to repay the loans as
well as the mobilized capital on schedule and in conformity with other
commitments made during the capital mobilization.
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e) If the investor is a business in any form of
ownership and goes bankrupt, the investment work already done by it shall be
dealt with in accordance with the Law on Bankruptcy.
f) When compiling the dossier on the
pre-feasibility and feasibility studies, the investor shall have the duty and
right to request the concerned State agencies to give guidance on questions
related to the project such as on land, natural resources, water and
electricity supply, transport and communications, ecological environment,
prevention and combat against fires and explosion, protection of historical and
cultural relics, defense and security. The investor shall also have to observe
all the State stipulations on the above-mentioned issues in the course of
investment and construction.
2. The investment and construction consultancy
organizations (survey, designing, management, project implementation...), the
suppliers of equipment and materials and the organization engaged in
construction and installation shall have to fully perform the contract signed
with the investor or the project manager and shall be accountable before law
for the result of the contract performance.
Article 9.- Principles
on the management of the use of the development investment capital sources.
1. The State budgetary capital used for
development investment under the State plan includes:
- The capital for the investment projects to
construct social, economic, defense and security infrastructure works with
unretrievable capital, shall be managed according to the division of
responsibilities in State budget spending on development investment.
- The investment and capital given as support to
State enterprises, stock capital or capital contributed to joint-ventures in
areas that need the participation of the State as prescribed by law.
- Allocations to the national investment support
fund and the development support funds for economic development programs and
projects (from the central budget).
2. The State preferential credits shall be used
to invest in the projects to construct economic infrastructure, job generating
production establishments, important investment projects of the State in each
period of development (power, cement, iron and steel, water supply and
drainage...) and a number of other projects in various branches with
retrievable capital as stated in the State plan. The Government shall decide
details of the investment for each of these projects during the plan execution.
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4. The capital from the national investment
support fund and other State funds shall be used for development investment.
5. The capital from commercial credits shall be
used to invest in new construction, renovation, expansion, technical and
technological renewal projects on the effective production, business and
services with their recoverable capital and eligibility for loans according to
the regulations currently in force. The regime of self-procurement and self-repayment
shall apply to the capital from commercial credits and all the investment
procedures and conditions for capital borrowing and repayment shall be strictly
observed.
6. The investment capital of State enterprises
(basic depreciation capital, capital accumulated from after-tax profits,
self-mobilized capital) used for production and business development and the
improvement of product quality and competitiveness must be used strictly in
accordance with current regimes of management of investment capital by such
enterprises. The organization managing the enterprise shall also have to
perform close supervision so as to ensure that the capital be used effectively
for the right purpose.
7. The capital of State enterprises in a
cooperative venture or joint venture with foreign partners.
Where a State enterprise is allowed to
contribute capital to a joint venture with foreign partners in the form of
land-use right or the rent of land, water surface, sea surface, workshops, equipment
and other constructions belonging to the State capital, it must get permission
from the competent level and fill the procedures to receive the capital and has
the responsibility to return the capital to the State according to current
regulations.
8. The capital mobilized by the administrations
at the provincial and district levels from the contributions of organizations
and individuals shall be used to construct infrastructure projects provided for
by the Government.
The capital mobilized by the administration at
the commune/township level from the contributions of organizations and
individuals shall be used to construct infrastructure projects in the commune
or township on the principle of voluntariness.
These sources of capital must be managed openly,
examined and supervised to ensure that they are used for the right purpose and
in accordance with the regime prescribed by law.
9. With regard to the investment capital of
non-State economic organizations and the investment capital of individual citizens,
the investor must complete all procedures before submitting them to the
competent agency for consideration and granting of business or construction
permits.
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11. The investment capital of diplomatic
missions, international organizations and other foreign agencies which are
allowed to erect buildings on Vietnamese land shall be managed in accordance
with the treaties or agreements signed between the Vietnamese Government and
the governments of the concerned countries or with the concerned foreign
organizations and agencies.
12. One investment project may use different
sources of capital but not in contravention of the stipulations on the use of
capital in this Regulation. The use of the administrative and non-business
capital for investment in new constructions, except for the infrastructure
works under the national programs defined by the Government is prohibited. No
branches or localities are allowed to transfer on their own initiative the
capital allocated or loaned under plan from one project to another without the
permission of the Prime Minister.
Article 10.- Planning
of investment.
1. The planning of investment at all levels must
cover all sources of investment capital:
- The investment plan at the macro level must
take into account the balance of investments for the whole society, including:
investment capital from the State budget, investment credits, investment
capital of State enterprises (the basic depreciation capital, the capital
accumulated from after-tax profits and the mobilized capital), investment
capital of the people and of private businesses and foreign direct investments.
- The investment plan at the
provincial/municipal level must take into account, cover and monitor all the
investment activities of various economic sectors, including the investment
capital directly managed by the locality; and, at the same time, provide
guidance for the administration of the lower levels to calculate and balance
the sources of development investment capital (including the mobilized capital,
budgetary revenues left for the locality and subsidies from the higher level).
- The investment plan of enterprises must
balance and cover the sources of basic depreciation capital, capital
accumulated from after-tax profits, capital mobilized from domestic and foreign
sources, State credits, and budgetary subsidies (if any).
- The State planning agencies of all levels
shall take responsibility for directly planning the State capital.
2. Implementing the investment plans according
to the approved programs and projects:
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b) The list of national programs shall be
decided by the National Assembly and their objectives, implementation tempo,
total capital level and sources of capital shall be approved by the Prime
Minister, which will serve as basis for drawing up plans for the Ministries and
localities. The investment and construction projects using State capital in the
national programs must be implemented in accordance with this Regulation.
3. The capital for the branch and territorial
planning and urban and rural construction planning must be recorded in the
State plan. The Ministries of Planning and Investment, Construction and Finance
shall provide detailed guidance on the planning of this capital.
4. The construction-related administrative and
non-business capital shall be used to invest in national programs. The Ministry
of Finance shall consult with the Ministry of Planning and Investment in
mapping out plans which shall be then notified to the different ministries, the
provinces and the cities directly under the Central Government for implementation
on the basis of the plan, annual State budget estimate with detailed estimates
of units using State budget, which have been approved by the competent level.
5. The contents of, and conditions for
registering, the investment plan and the reporting on the situation of
implementing the plan are defined as follows:
a) The contents of the investment plan include:
- The plan of capital for the survey and
prospecting, for branch and territorial planning, and for urban and rural
construction planning.
- The plan on preparations for investment
includes the investment capital for conducting the prospection and survey,
making the pre-feasibility and feasibility studies, evaluating the project and
deciding the investment.
- The plan on preparations for the project implementation
includes the capital for conducting the survey and technical designing,
elaborating the total estimate of expenditures, compiling the dossier for
bidding invitation, building the auxiliary constructions, the temporary
dwellings for construction workers, if required by the project and permitted by
the competent level, and expenditures on the preparation for the implementation
of other related projects.
- The project implementation plan includes the
investment capital for the purchase of equipment and materials, construction
and other expenditures related to the putting of the project into operation or
use.
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- The projects to be recorded in the plan
prepared for investment must be included in the branch and territorial
development planning.
- The projects to be recorded in the plan
prepared for implementation must be provided with the investment decisions
conforming to the provisions of this Regulation.
- The projects to be recorded in the project
implementation plan must have the total cost estimate approved by the competent
level.
Projects of Group A or B, which have no
technical design and approved total cost estimate but have the capital level
for each part of the project defined in their investment decision and have the
technical design and cost estimate for the first stage of the project approved
by the competent level, shall be recorded in the investment plan.
For a project signed with foreign partners and
comprising several sub-projects, each sub-project which is to be carried out in
the year must have its technical design and cost estimate approved by the
competent level.
3. Reporting on the situation of the plan
implementation:
The Ministries, the ministerial-level agencies,
the agencies attached to the Government, the Corporations established under
Decision No.91-TTg of March 7, 1994 of the Prime Minister, the provinces and
the cities directly under the Central Government shall report on the situation
of the plan implementation every quarter, six months, nine months and year
within the first week of the last month of a quarter to the Ministry of
Planning and Investment, the Ministry of Finance, the Ministry of Construction,
the General Office of Statistics, regarding the mobilization of capital from
various sources, construction volume, allocations and payment, completed
projects and newly mobilized capabilities according to the model forms issued
by the General Office of Statistics. For the projects of Group A alone, the
investors must submit their reports on the implementation situation on the 25th
day of every month so that the Ministry of Planning and Investment prepares a
general report and submit it to the Prime Minister.
Chapter II
INVESTMENT PREPARATION
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The investment preparation includes:
1. Study of the necessity of investment and the
investment scale.
2. Establishing contacts and exploring the
market in the country and abroad in order to look for the source of materials
and equipment supply or to market products. Examining the possibility of
mobilizing capital from different sources for investment and choosing the form
of investment.
3. Conducting survey, prospecting and selecting
the site for construction.
4. Drawing up the investment project.
5. Evaluating the project to decide the
investment.
Article 12.- Drawing up
the investment project.
1. The drawing up of an investment project shall
involve the following steps:
a) Determining the necessity of the investment
project.
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2. With regard to the projects of Group A, two
steps are required: pre-feasibility study and feasibility study. If the Prime
Minister decides that the pre-feasibility study is not necessary the investor
shall carry out only the feasibility study.
3. With regard to the projects of Group B, the
agency competent to decide the investment shall decide whether it is necessary
or not to carry out both steps: pre-feasibility study and feasibility study.
4. With regard to other projects, only the
feasibility study is required.
Article 13.- Main
contents of the report on the pre-feasibility study:
The main contents of the report on the
pre-feasibility study include:
1. Preliminary study on the necessity of
investment, favorable conditions and difficulties.
2. Projected scale of investment and selection
of the form of investment.
3. Selection of the area and site for
construction and estimated area of land to be used.
4. Preliminary analysis of technology, technique
and construction, conditions for the supply of raw materials, materials,
equipment, energy, services and infrastructure.
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6. Preliminary estimate of the economic and
social efficiency of the investment project.
Article 14.- Main
contents of the report on the feasibility study.
The main contents of the report on the
feasibility study include:
1. Bases for determining the necessity of
investment.
2. Selection of the form of investment.
3. The production schedule and the conditions to
be met.
4. Options for a particular site (or a system of
constructions).
5. Analysis for the selection of the
technological and technical option.
6. Construction options and solutions.
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8. Financial and economic analysis.
The details of the report on the pre-feasibility
or the feasibility study shall be defined by the Ministry of Planning and
Investment and the Ministry of Construction.
Article 15.-
Requirements for the evaluation of investment projects.
1. All investment projects involving
constructions regardless of their sources of capital and economic sectors must
be evaluated in terms of construction planning, architectural plans,
technology, the use of land and natural resources, protection of ecological
environment, prevention and fight against fires and explosion as well as their
social impacts.
2. The investment projects using State capital
must be additionally evaluated in terms of their financial plans and economic
efficiency.
3. The evaluation of the investment projects
using ODA capital must conform to the State regulations as well as
international practices.
Article 16.- Evaluation
of investment projects.
The evaluation of investment projects are
prescribed as follows:
1. The investor is responsible for drawing up
the pre-feasibility and feasibility studies and submit them directly to the
agency competent to decide the investment for approval.
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3. Feasibility study:
- The projects of Group A: shall be evaluated by
the Ministry of Planning and Investment, and the decisions on the investment
therein shall be drafted by the Ministry of Planning and Investment, which is
responsible for collecting comments from the concerned Ministries, branches and
localities, then submitted to the Prime Minister for consideration and
decision. Depending on the nature and necessity of each project, before making
an investment decision, the Prime Minister may request the State Council for
Evaluation of Investment Projects to study and comment.
- The projects of Groups B and C: Before making
a decision to invest, the agency competent to decide the investment may ask its
capable specialized agencies to choose a consulting organization to evaluate
the project. (For the projects of Group B, there must be the consent of the
Ministry of Planning and Investment and the Ministry in charge of the concerned
branch as prescribed in Article 7).
4. The evaluation of foreign projects shall be
done according to a specific regulation.
Article 17.- The State
Council for Evaluation of Investment Projects.
The State Council for Evaluation of Investment
Projects is established under the decision of the Prime Minister to advise the
Prime Minister on the investment projects under his/her jurisdiction.
The council for evaluation of investment
projects shall not be set up at other levels.
Article 18.- Time limit
for the evaluation of a project.
1. With regard to the investment projects of
Group A, the time limit for evaluation shall not exceed 45 days from the date
of receipt of the full and valid dossier.
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3. With regard to the investment projects of Group
C, the time limit for evaluation shall not exceed 20 days from the date of
receipt of the full and valid dossier.
Article 19.- Investment
decision and issuing of investment permit.
1. The investment project using State capital
must have the investment decision issued by the competent agency before the
investment is implemented .
The contents of the investment decision include:
a) Determination of the investor and the form of
the management of the project.
b) Determination of the location and the land area
to be used.
c) The designed capacity.
d) Total investment and mobilized capital.
e) Project implementation modes
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2. With regard to the investment project not
using State capital, the investment permit shall be issued to the investor as
prescribed in Article 7.
The contents of the investment permit are
defined by the Ministry of Planning and Investment.
Article 20.- Change of
the contents of the investment project.
1. Any change in the contents of an investment
project must be approved in writing by the agency which has decided the
investment project.
2. When the investor deems it necessary to
change the contents of a project that has been granted an investment decision
(or the investment permit) he/she must clearly state the reason and the
proposed change and re-evaluation must be done so as to get a new investment
decision or a new investment permit.
3. A project may be suspended or canceled in the
following cases:
a) After 12 months from the date of receipt
of the investment decision (or the investment permit), the investor still fails
to start the project without the approval by the competent level;
b) The objective of the project is changed
without the approval in writing of the agency competent to decide the
investment;
c) The implementation of the project is
prolonged for more than 12 months against the time targets set in the
investment decision without any plausible reason.
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1. The funds for the drawing up and evaluation
of a project shall be accounted for in the source of capital from which the
project is funded. For a project with its source of capital not yet determined,
the investor shall use his lawful capital or capital borrowed from banks for
such jobs, which shall be refunded after the official source of capital is
determined.
2. The fund for consultancy in the drawing up
and evaluation of the project as prescribed in the investment capital of the
project shall be stipulated by the Ministry of Construction after consulting
the Ministry of Planning and Investment and the Ministry of Finance.
Chapter III
IMPLEMENTATION OF THE
INVESTMENT PROJECT
Article 22.- The
contents of the implementation of an investment project.
The contents of the implementation of an
investment project include:
1. Application for the allocation or lease of
land as prescribed by the State (including water surface, sea surface and
continental shelf);
2. Preparing the ground for construction;
3. Organizing the selection of consultant in
survey, designing, control of technical issues and project quality;
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5. Organizing bidding for the purchase of
equipment, for construction and installation;
6. Applying for the construction permit and the
permit for the exploitation of natural resources (if any);
7. Signing contracts with the contractors for
the implementation of the project;
8. Construction and installation of the project;
9. Monitoring and supervising the execution of
the contracts.
Article 23.- Assignment
and receipt of land.
1. The investor who needs the use of land must
compile a dossier to apply for land allocation or lease in accordance with the
provisions of law.
2. The time limit for considering and settling
an application for land allocation or lease and deciding to allocate land by
the competent agency shall not exceed 25 days from the date of receipt of the
full and valid dossier.
3. The assignment and receipt of the land at the
site in preparation for the construction shall be done only after the investor
has paid the tax on land use or the land rent, the land administration fee and
completed the procedures for paying compensation for damage as prescribed by
law. The granting of the land-use right certificate shall be done in accordance
with the legislation on land.
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1. The investor shall take the main
responsibility for paying compensations and clearing the ground for
construction before assigning the ground to the construction unit. The investor
may sign a contract with a local organization specialized in compensation and
ground clearance for performing this task.
2. The compensation and ground clearance shall
be carried out in accordance with law. The local administrations of various
levels shall have to create favorable conditions for the investor to level the
ground for construction so as to ensure the project construction tempo.
Article 25.- Selection
of the construction consultants.
The selection of construction consultants in the
survey, designing, control of technical issues and project quality shall be
done according to the States Regulation on Bidding.
Article 26.- Project
designing.
1. Lawful documents used in designing.
The documents on the terrain, geological,
hydrological and meteorological prospection and survey and other documents used
in designing the construction of a project must be compiled by a specialized
organization having the legal person status and meeting the construction
criteria and technical norms for construction issued by the State. If foreign
criteria and technical norms for construction are to be applied, the approval
thereof must be given by the Ministry of Construction.
2. Order of designing
Depending on the technical complexity of the
project, designing shall be done in one or two steps.
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- For projects with technical simplicity or with
model designs or unsophisticated treatment of the foundation, only one-step
designing is required: construction technique designing.
The designing organization must draw up the
total cost estimate suited to the technical design or the construction
technique design.
The contents of the dossier on step-by-step
designing shall conform to the regulations issued by the Ministry of
Construction.
Article 27.- Examination
and approval of the technical design and the total cost estimate:
All the construction investment projects of all
sources of capital and economic sectors must have their designs evaluated by
specialized organizations before the commencement of construction.
1. With regard to construction investment
projects using State capital:
- The technical designs and total cost estimates
of Group-A projects shall be approved by the Head of the Ministry in charge of
the branch after they are evaluated respectively by specialized organizations
and the Ministry of Construction.
- The technical designs and the total cost
estimates of the projects of Groups B and C shall be approved by the agency
competent to decide the investment after the specialized organization evaluated
the designs and the agencies in charge of construction evaluated the unit
prices and the estimates. The agencies in charge of construction of the
Corporations are the organizations which manage the construction investment of
the Corporations. The agencies which manage the construction in the provinces
and the cities directly under the Central Government are provincial/municipal
Services for Specialized Construction.
2. For the projects with foreign direct
investment, their designs shall be evaluated under separate instructions.
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Article 28.- The
construction permit.
1. All the projects of new construction,
renovation, repair and change of function or utility purpose in urban areas or
in the land lots outside the cities must apply for a construction permit,
except the following cases which are exempt from construction permits:
a) The constructions belonging to Group-A
projects, which the Prime Minister has decided to invest in and of which the
technical designs have been approved by the competent level. Yet, before
starting the construction, the investor must send a dossier on the design of
the project construction to the People’s Committee of the province or city
where the project is located for supervision, monitoring and filing.
b) Minor repairs which do not affect the
structures of adjacent houses and the street frontage as prescribed in Article
18 of Decree No.91-CP of August 17, 1994 of the Government on the management of
urban planning.
2. Competence to issue construction permits:
a) The President of the People’s Committee of
the province or city directly under the Central Government shall issue
construction permits for the projects located on the territory under his/her
management at the proposal of the Director of the provincial/municipal
Construction Service or the chief architect (for the localities having chief
architects).
The President of the People’s Committee of the
province or city directly under the Central Government may empower the Director
of the provincial/municipal Construction Service or the chief architect (for
the localities having chief architects) to directly issue construction permits
for the projects located in the territory under his/her management.
Once empowered to issue construction permits,
the Director of the provincial/municipal Construction Service or the chief
architect shall have to fulfill the administrative procedures as prescribed by
law and to regularly report to the President of the People’s Committee of the
province or city directly under the Central Government on the situation of the
issuing of construction permits in his/her locality.
b) The President of the People’s Committee of
the district, provincial town or city shall issue construction permits for
single residential houses under private ownership and small-scale projects
according to the assignment by the president of the People’s Committee of the
province or the city directly under the Central Government. The issuing of
construction permits for the projects of this group shall be subject to
professional instruction of the Director of the provincial/municipal Construction
Service or the chief architect (for the localities having chief architects).
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For Hanoi and Ho Chi Minh cities, the
stipulation in the issuing of construction permits (including the
categorization and delineation of areas for issuing construction permits) shall
be promulgated by the President of the municipal People’s Committee after
consulting with the Ministry of Construction.
c) The managing board of the export processing
zone or the concentrated industrial park established by decision of the Prime
Minister shall be entitled to issue construction permits for projects located
within the boundaries of the processing zone or the industrial park in
accordance with the provisions of law and the professional instruction of the
Director of the provincial/municipal Construction Service or the chief
architect (for the localities having chief architects).
3. The Ministry of Construction shall provide
guidance for the procedure of issuing construction permits.
Article 29.- Permit to
exploit natural resources.
Where an investment project requires the
exploitation of natural resources, the investor must abide by all the
provisions of the legislation on mineral resources.
Article 30.- Bidding
and appointment of bidders.
1. All investment projects using State capital
must be open for bidding according to the State regulation on bidding, except
for the following projects for which bidders shall be appointed:
a) Research or experimental projects.
b) Emergency projects necessitated by natural
calamities or acts of sabotage.
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d) Projects valued at less than 500 million
Vietnam Dong.
e) A number of special projects permitted by the
Prime Minister.
2. Encouraging bidding for investment projects
not using State capital and encouraging projects eligible for the appointment
of bidders for the whole project or parts of the project when possible.
3. Before approving the plan for bidding of
Group-B projects, if there is a bidding package worth more than 500 million
Vietnam Dong where the bidder shall be appointed the agency competent to decide
the investment in the project must report it to the Prime Minister for
permission.
Article 31.- Contract
on consultancy, purchase of equipment and construction and installation.
1. After receiving the written approval of the
bidding results by the competent level, the investor shall have to negotiate
and sign a contract with the winning bidder according to the State regulation
on bidding. Where the contract is signed with foreign organizations, it must be
submitted to the agency competent to decide the investment for approval.
2. Where the bidder is appointed, the investor
must count himself on the approved design and cost estimate to negotiate and
sign the contract according to the provisions of the legislation on contracts.
3. If the investor signs a contract at his/her
own will, thus contravening the above-mentioned regulations, the
capital-granting agency shall not give any capital or loan and he/she shall be
disciplined according to the extent of the violation.
Article 32.- Conditions
for starting a project.
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a) Having a construction permit (for projects
that require construction permits);
b) The projects using State capital must have
their total cost estimate approved by the competent level. For a large-scale
construction project with a long construction time and the total cost estimate
not yet available, there must be a technical design and cost estimate approved
for each period of construction or for each part of the project (such as ground
leveling, auxiliary constructions, construction workers dwellings, etc.) and
must have its technical design and total cost estimate approved by the
competent level not later than after one third of the value of the volume of
the construction and installation work of the whole project has been completed,
this estimate shall be used as basis for managing the expenditures on the
project.
c) Having a proper bid assignment and acceptance
contract.
Article 33.- Management
of construction technique and quality.
1. The survey and designing organizations must
assure close examination of details of each project. Every designing project
must have a project manager who shall take personal responsibility before law for
the project quality and efficiency. In implementing the regime of authors
supervision, the project manager shall closely coordinate with the investor and
the construction business to settle in time all questions arising in the course
of construction in order to ensure the quality of the project.
2. The construction businesses shall take
responsibility before the investor for the construction and installation
techniques and quality. The construction business must set up a section for
technical and quality control in order to manage the construction and
installation techniques and quality. Together with the investor, the designing
organization and the supervising organization, it shall compile the dossier on
test on completion and examine the quality of each work and each part of the
project as well as the entire project.
3. The investor shall have to control or hire a
consultancy organization to control the construction quality during the course
of construction and installation.
4. The Ministry of Construction, in its capacity
as an agency exercising the unified State management of the quality of
construction projects, shall coordinate with the Ministries in charge of
specialized construction services in issuing or assigning the responsibility
for issuing the regulations on the management of the quality of specialized
construction projects.
5. The provincial/municipal Construction
Service, as the agency assisting the Peoples
Committee of the province or city directly under the Central Government in the
exercise of unified State management of the quality of construction projects
located on the territory of the province or city, shall have to coordinate with
the provincial/municipal services in charge of specialized construction in
guiding and organizing the State control, supervision and examination of the
quality of construction project located on the territory of the province or
city.
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Testing on completion of projects shall be
conducted phase by phase right after the completion of the hidden
constructions, weight-bearing structures, parts or items of the construction as
well as the whole project.
The investor shall have to organize the testing
on completion of the project under the guidance of the Ministry of Construction.
With regard to a number of important projects or
technically complicated projects, the agency competent to decide the investment
shall set up a Council for test on completion to supervise and examine the test
on completion by the investor at the proposal of the State Department for
Examination of the Quality of Construction Projects under the Ministry of
Construction.
Article 35.- Capital
granting and payment.
1. For construction and installation bidding
packages eligible for the application of the form of bidder appointment, the
granting, lending and payment of the capital invested in construction and
installation shall be made on the basis of the value of the work volume
achieved and tested on completion every month, but they must be included in the
annual plan for investment capital as well as in the approved total cost
estimate.
For bidding packages with bidding applicable to
the construction and installation, they shall receive a 10% - 20% advance of
the total capital planned for the whole year, depending on the size and
specific conditions of each bidding package and the payment of the investment
capital shall be made according to the implementation tempo already defined in
the annual plan.
2. With regard to the purchase of equipment
(including imported and locally made equipment), capital shall be also provided
in advance according to the current regime of payment and the terms of the
contract between the investor and the supplier of equipment but such capital
shall not exceed the approved total capital planned for the year.
3. The construction consultancy contracts shall
be provided with an advance worth at least 25% of the contract value according
to the total capital planned for the year.
4. The granting of construction-related
administrative funds, the fund for territorial and branch planning, for urban
and rural construction planning shall be made under the guidance of the
Ministry of Finance and with the consent of the Ministry of Planning and
Investment and the Ministry of Construction.
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6. The capital granting agency shall not grant
State budgetary capital and State preferential credits to pay for any damage or
risk to those investors who did not buy insurance for construction projects.
Article 36.- Final
balance of accounts.
1. Each year the investor shall have to report
the investment capital already used to the capital granting or lending agency.
On completion of the project (the whole project or parts thereof), the investor
shall have to send a report on the final balance of accounts on the investment
capital to the capital granting or lending agency and the agency which decided
the investment.
2. If the investment project is funded by
different sources of capital, each source must be stated clearly in the report.
3. With regard to investment projects whose
construction takes several years, the investor, when making the final balance
of accounts, must calculate the already used investment capital according to
the prices prevailing at the time of the take-over and putting of the project
into operation in order to determine the newly added value of the fixed assets
and the value of the assets on take-over.
The Ministry of Construction shall provide
guidance on the uniform method of calculating the prices at each period for the
investors to apply when making the final balance of accounts.
4. No later than one month after the end of the
plan-year, the investor shall have to complete the report on the investment
capital already used in the previous year and send it to the capital granting
or lending agency and the Ministry or the Peoples
Committee of the province or city directly under the Central Government.
No later than six months after the completed
investment project is put into operation, the investor must complete the report
on the final balance of accounts and send it to the capital-granting or
-lending agency and the agencies having the function of examining the final
balance of accounts under the Ministry or the province and the agency competent
to approve the balance.
5. The Ministry of Finance shall provide
guidance on the deadline for making the final balance of accounts, the contents
of the report on the final balance, the contents of the examination and
approval of the final balance of accounts of the projects using the State
capital.
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Article 37.-
Examination and approval of the final balance of accounts.
1. The final balance of accounts of the
investment capital of the completed project shall be examined before it is
approved.
The Ministry of Finance shall preside over the
examination regarding the projects of Group A.
The Ministries or the Peoples Committees of the provinces and cities
directly under the Central Government shall organize the examination in the
other projects.
The financial agency shall have to examine and
give its written comments on the final balance of accounts before the competent
level approves it.
2. With regard to the completed investment
project (the whole project or parts of the project) the agency competent to
decide the investment shall also approve the final balance of accounts.
For the projects of Group A, the Prime Minister
shall empower the Minister of Finance to approve their final balances of
accounts.
With regard to the investment capital to be
implemented each year, the capital-granting or-lending agency shall examine the
used capital against the approved plan.
3. The expenditures on examination and approval
of a final balance of accounts shall be covered by the investment capital of
the project according to regulations of the Ministry of Finance.
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TERMINATION OF
CONSTRUCTION AND PUTTING THE PROJECT INTO OPERATION OR USE
Article 38.- Contents
of the work in the final stage of construction and putting the project into
operation or use.
The contents of the work to be performed upon
the termination of construction include:
1. Hand-over of the project.
2. Termination of construction.
3. Project warranty.
4. Operating the project.
Article 39.- Hand-over
of the project.
1. The construction project shall be handed over
wholly to the user only when the construction and installation have been
completed according to the approved design and the quality of the construction
is certified to meet the quality requirements upon test on completion
(including the completion of the projects
interior and exterior decoration and the cleaning up of the ground).
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3. The dossiers on the project construction must
be submitted and filed as archives in accordance with the legislation on State
archives.
Article 40.-
Termination of the construction.
1. The construction activities shall terminate
when the whole project is handed over to the investor.
2. After handing over the project, the
constructor must liquidate or move all his property out of the construction
site and return the land borrowed or temporarily leased to service the project
construction as contracted.
3. The obligations defined in the construction
contract shall terminate completely only when the warranty period expires.
Article 41.- Project
warranty.
1. The supplier of documents, survey data
(including copies, drawings and tests) in service of the designing,
construction and installation, test on completion, evaluation of the project,
the manager of the design project, the contractor of the construction and
installation, the supplier of construction equipment and materials and the
construction supervisor must take full responsibility before law for the
product quality or the results of their work.
2. The warranty period; the parties rights and obligations concerning
warranty; the procedure for performing these obligations and exercising these
rights are stipulated by the competent State agency.
The Ministry of Construction shall set
regulations on this issue for the products of the survey, designing,
construction and installation of the project .
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Article 42.- Operating
the project.
After taking over the project, the investor
shall have to tap and make use of the projects
capacity, organize production, trade and service in a synchronous way; and to
perfect the managerial organization and modes with a view to bringing into full
play the economic and technical norms set for the project.
Article 43.- Repaying
the investment capital.
1. Retrieval of investment capital is compulsory
for all investment projects capable of retrieving the capital.
2. With regard to projects invested with State
budgetary capital; preferential credits, commercial credits and investment
capital of businesses which the investors shall have to repay, the sources of
capital to be retrieved and used for repaying the debts shall include all the
basic depreciation, part of the profit and capital from other sources (if any).
Where the investor fails to retrieve the capital
and repay all debts, he/she shall bear the responsibility as prescribed by law.
3. With regard to projects with capital borrowed
directly by businesses from foreign countries and secured by the State, the
businesses shall have to repay the debts according to the capital borrowing
contract. If the businesses fail to repay the overdue debts, the securing
agency shall have to repay the debts in their place and, at the same time, have
the right to request the competent State agency to take necessary measures
including auctioning the assets of businesses.
Chapter V
FORMS OF ORGANIZING THE
MANAGEMENT OF THE PROJECT IMPLEMENTATION
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Depending on the specific conditions of each
project, the following forms of management may be applied:
1. Direct management of the project
implementation by the investor.
2. Project manager.
3. Turn-key project.
4. Self-implementation.
Article 45.- Direct
management of the project implementation by the investor.
The investor shall organize the selection of and
directly sign a contract with one or more consultancy organizations to carry
out the survey and designing of the project, compile the dossier on bidding
invitation, organize the bidding or appoint the bidder. After the investor has
signed a contract with the contractor of the construction and installation, the
task of supervising and managing the construction process, ensuring the
implementation progress and the quality of the project shall still rest with
the selected consultancy organization.
Article 46.- The
manager himself directs the project.
1. The investor shall organize the selection of,
and submit to the competent level for decision, the consultancy organization
which will act on his/her behalf as project manager in negotiating and signing
contracts with survey and designing organizations, suppliers of materials and
equipment, construction and installation contractors for performing the tasks
of the project implementation process, and at the same time, to assume the
responsibility to supervise and manage the whole process.
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Article 47.- Turn-key
project.
1. The investor shall organize a bidding of the project
to select a contractor (general construction contractor) to carry out the whole
project (designing, purchase of materials and equipment, construction and
installation...). The investor shall submit for approval the technical design,
total cost estimate, test on completion and take-over only when the project is
completed and put into use. The general construction contractor can subcontract
to other sub-contractors the survey, designing, purchase of equipment or part
of the construction and installation work.
2. This form shall apply to the construction of
residential houses, civil projects and small-scale and technically simple
production and business projects.
Article 48.-
Self-implementation projects.
1. The investor shall himself use his available
workforce to perform the construction and installation work.
2. This form shall apply only to small-scale
repair and renovation projects, and particularly specialized projects
(agro-forestry constructions and self-invested projects on the construction of technical
and material basis by construction businesses).
Article 49.- Investment
and construction consultancy organizations.
Investment and construction consultancy
organizations include professional consultancy companies of different economic
sectors which are set up and operate in accordance with law; research
institutions, universities and intermediate construction technology schools;
technical and scientific associations, construction-related and
lawfully-founded arts associations having legal person status and certificates
for their construction and installation consultancy qualification. Depending on
their capabilities, the consultancy organizations may draw up projects
(pre-feasibility and feasibility), do the designing, compile the dossier on
bidding invitation, organize a bidding, supervise and manage the construction
and installation process, test on completion of the project. They can also
sub-contract parts of the consultancy work to other consultancy organizations.
Chapter VI
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Article 50.- Principle
for setting and managing production cost.
1. The State shall manage construction cost
through the issuing of pricing policies, principles and methods of making cost
estimates and the basic data (economic and technical norms, standard prices,
construction unit price, portions of investment capital...) for determining the
total investment capital of a project, total cost estimate of the project and
the cost estimates of different construction parts of the project.
2. All projects using the State budget must
compile all necessary documents on the cost estimates specifying the necessary
expenses of the project. The investors and consultancy organizations must base
themselves on the State regulations on the management of construction costs to
compile and submit the total cost estimate and cost estimates of different
construction parts to the competent level for approval and use them as a basis
for considering the bidding packages using State capital. The businesses
wishing to be construction contractors shall refer to the State regulations on
the management of construction costs to determine their bidding prices.
3. The cost to be paid to the project shall be
the cost of the winning bid and the conditions specified in the contract
between the investor and construction businesses.
Article 51.- State
management of construction cost.
The Ministry of Construction shall preside over
and together with the concerned State agencies exercise unified management of
construction cost (economic and technical norms, general unit price, standard
price, consultancy fee: survey, designing, planning and construction designing)
and evaluate the total cost estimates of the Group A projects using State
capital.
Article 52.- Management
of total cost estimate, cost estimates of construction parts of the projects
using State capital.
1. The cost to be paid for the project in all
forms of bidding or appointed bidding shall not exceed the approved total cost
estimate of the project or cost estimates of construction parts (with regard to
bidding packages). In special cases, any excess of the approved total cost
estimate or cost estimates of construction parts must be examined and submitted
to the agency competent to decide the investment for consideration and
decision.
2. With regard to the projects designed in two
steps, the cost estimates of their construction parts shall be made on the
basis of the construction design approved by the agency competent to decide the
investment or by the authorized agency.
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1. While carrying out investment and
construction work, the investor must buy insurance for the project from an
insurance company which is licensed to operate in Vietnam. Projects with
foreign direct investment must buy insurance in accordance with the provisions
of the Law on Foreign Investment in Vietnam.
2. The insurance cost of a project constitutes
part of its investment capital. It is calculated in percentage of the value of
the project.
3. The construction and installation contractors
and the consultancy organizations must buy insurance for the materials and
equipment, workshops in service of the insurance for labor accidents, for the
civil responsibility toward the third party, for the survey and design products
during the process of implementing the project. The insurance cost shall be
included in the production cost.
4. The insurance conditions and the rights and
obligations of the parties involved in the insurance shall be agreed upon by
the parties, but must not contravene Vietnamese laws and international
practices. The Ministry of Finance shall provide guidance on construction
insurance
Chapter VII
INSPECTION, EXAMINATION
AND HANDLING OF VIOLATIONS
Article 54.- Inspection
and examination of investment and construction activities.
1. All construction and investment activities of
every organization involved shall be subject to the inspection and examination
by the specialized State agencies in each area of management.
2. Depending on the specific conditions of each
investment project, the inspection and examination can be made in separate
phases or the whole process of investment and construction.
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1. The investor must strictly abide by the State
stipulations on the management of investment projects as specified in this
Regulation. Violators shall be subject to an administrative sanction, be
examined for penal liability or compensation for damage, depending on the
seriousness of the violation.
2. If the investor fails to fulfill his
responsibility stated in the contract signed with the contractors (consultancy,
purchase of equipment, construction and installation), he/she must pay to the
contractors a fine for breach of the contract, pay compensation for damage, if
any, and be dealt with according to Article 272 of the Civil Code.
Article 56.- Handling
of violations by organizations which evaluate the project, the design, total
cost estimate and final balance of accounts.
The evaluation organization shall take
responsibility to the agency competent to decide the investment for the
accuracy of the documents and the conclusions in its report on the evaluation
results. In cases where the competent agency makes a wrong decision (resulting
in accidents, waste or economic and social inefficiency) due to inaccurate
documents, data and conclusions of the evaluation organization, the latter
shall be subject to administrative sanctions or possible examination for penal
liability; if any damage is caused, compensation must be made.
The agency competent to decide the investment
which makes a wrong decision on the investment policy, thus causing serious
economic, social and environmental consequences must bear responsibility before
law.
Article 57.- Handling
of violations by consultancy organizations, suppliers of equipment and
construction and installation organizations.
1. Upon detecting that labor safety is in
imminent danger or the construction organization has repeatedly violated the
regulations on labor safety, the agency managing the construction or the labor
safety inspector is entitled to temporarily suspend the construction.
Such temporary suspension shall be lifted after
the construction organization has eliminated the danger or stopped the
violation.
2. Any major technical mistakes made by the
consultancy organization or the construction and installation organization,
which seriously affect the quality of the project (construction), causing
collapse or damage, even after the commission of the project (construction),
the consultancy organization, the manager of the project design or the
construction and installation organization must pay compensation for the damage
and bear other legal responsibilities as provided for by law.
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Article 58.- Handling
of violations by individuals.
Individuals working for the investor’s agency, consultancy
organizations, suppliers of materials and equipment, construction and
installation organizations and the concerned managing agencies, who violate the
stipulations of this Regulation may be subject to an administrative penalty,
examination for penal liability and compensation for damage, depending on the
seriousness of the violation.
Chapter VIII
IMPLEMENTATION PROVISIONS
Article 59.- The
Ministers, the Heads of the ministerial-level agencies, the Heads of the
agencies attached to the Government, the Presidents of the Peoples Committees of the provinces and cities
directly under the Central Government, the Managing Boards of the State Corporations
shall have to implement this Regulation.
The Ministers of Construction, Finance, Planning
and Investment and the other relevant Ministers in charge of the relevant
branches shall have to provide guidance, monitor and supervise the implementation
according to the State management function of the Ministries.
Article 60.- This
Regulation takes effect from the date of its issuing and is applicable to all
economic sectors throughout the country.
APPENDIX
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Investment projects (excluding projects with
foreign direct investment) shall be classified into three groups - A, B and C -
according to the following specifications:
I. PROJECTS OF GROUP A:
1. Security and defense projects of national
secrets, projects of important political and social significance (regardless of
the size of their investment capital).
2. Projects to produce toxics and explosives,
exploit and process precious and rare minerals: gold, silver, gems, rare earth
(regardless of the size of their investment capital).
3. Domestic BOT projects to construct infrastructure
for industrial parks, urban infrastructure with an investment of 100 billion
VND or more.
4. ODA projects, each capitalized at 1.5 million
USD or more.
5. Non-production projects in the fields of
health, culture, education, radio broadcasting, television, civil engineering,
tourism, scientific research...with an investment of more than 75 billion VND
(excluding main offices and buildings of the State agencies).
6. Projects with large investment capital of:
a) More than 400 billion VND with respect to the
projects in the power, oil and gas, chemical, fertilizer, machine tools,
cement, metallurgical and mining industries, construction of sea ports,
airports and highways.
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II. PROJECTS OF GROUP B:
1. ODA funded projects (outside Group C) and BOT
projects with an investment below the level defined in Item I.
2. Projects with a total investment above the
level defined in Item III and below the level defined in Item I.
3. Projects in other industries not mentioned in
Item I and having a total investment above the level defined in Item III.
III. PROJECTS OF GROUP C:
1. Projects with a total investment below the
level defined in the following:
a) Less than 30 billion VND with respect to the
projects in the power, chemical, fertilizer, oil and gas, machine building,
transport, irrigation, water supply and drainage in urban areas, construction
materials, post and telecommunications industries.
b) Less than 20 billion VND with respect to the
projects in the electrical techniques, electronics and informatics industries,
light industries, porcelain and ceramics, glassware, paper, leather, garments,
processing of agro-forestry products, aquaproducts, pharmaceuticals, medicines.
2. Projects not mentioned in points 1.a and 1.b
with an investment of less than 7 billion VND.
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1. Group-A projects in railways and roads must
be classified according to the road and bridge length and grades as instructed
by the Ministry of Transport and Communications in consultation with the
Ministry of Planning and Investment.
2. The main offices and buildings of the State
agencies must conform to the governmental regulations in force.-
THE
GOVERNMENT
Phan Van Khai