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MINISTRY OF
TRANSPORT
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SOCIALIST
REPUBLIC OF VIETNAM
Independence – Freedom – Happiness
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No.
35/2019/TT-BGTVT
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Hanoi, September
9, 2019
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CIRCULAR
On dredging activities in port waters
Pursuant to Maritime Code No.95/2015/QH13 dated
November 25, 2015;
Pursuant to Decree No. 12/2017/ND-CP dated
February 10, 2017 of Government on functions, tasks, powers, and organizational
structure of Ministry of Transport;
Pursuant to Decree No. 159/2018/ND-CP dated
November 28, 2018 of Government on dredging in harbours and inland waterways;
Pursuant to Decree No. 58/2017/ND-CP dated May
10, 2017 of Government on elaborating to a number of Articles of Vietnam
Maritime Code providing for maritime activity management;
Pursuant to Decree 37/2015/ND-CP dated April 22,
2015 of Government on elaborating to construction contract;
At the request of Director General of Transport
Infrastructure Department and Director General of Vietnam National Maritime
Bureau;
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Chapter I
GENERAL PROVISIONS
Article 1. Scope
This Circular prescribes dredging activities in
port waters, including: maintenance dredging of public navigation channels
financed by state budget and projects on promoting private sector involvement
in dredging port waters under management by Ministry of Transport.
Article 2. Regulated entities
This Circular applies to domestic and international
entities and persons involved in dredging activities in port waters.
Article 3. Term interpretation
In this Circular, terms below are construed as
follows:
1. “Enterprises providing public services”
include Northern Vietnam Maritime Safety Corporation and Southern Vietnam
Maritime Safety Corporation.
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3. “Construction contract” refers to a
contract between the enterprise providing public services and a maintenance
dredging contractor.
4. “Investor” refers to an enterprise
selected by a competent authority to carry out a contract for project on
promoting private sector involvement in dredging port waters.
Chapter II
MAINTENANCE DREDGING OF
PUBLIC NAVIGATION CHANNELS FINANCED BY STATE BUDGET
Section 1. General
regulations on implementing MAINTENANCE DREDGING OF PUBLIC NAVIGATION
CHANNELS FINANCED BY STATE BUDGET
Article 4. Plan for maintenance dredging of
public navigation channel
1. The plans for maintenance dredging of public
navigation channels are parts of annual Maritime infrastructure recovery plans
approved by Ministry of Transport, including details for implementation of
maintenance dredging of public navigation channels in planning year and details
for implementation of preparing for maintenance dredging constructions of
public navigation channels of the following year (including locating disposal
site for dredged materials, inspecting, compiling dossiers, making cost
estimates of such constructions, producing environmental impact assessment
report, submerging dredged materials at sea, assigning sea areas and relevant
affairs).
2. Preparation for maintenance dredging of public
navigation channels financed by state budget shall comply with maritime
structures maintenance laws and based on following basic information:
a) Importance of such channels with respect to
local maritime activities, utilization of ports serving goods import and
export, socio-economic development and national defense, security;
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c) Statistical data on ship size and draught
permissible to perform maritime activities, frequency and water level for
effective ship operation;
d) Alluvial soil volume, dredging results in the
last 3 years to anticipate the maintenance dredging load;
dd) Methods and sites for disposal of dredged
materials publicized and approved by provincial People’s Committees.
3. Vietnam Maritime Administration shall cooperate
with the enterprises providing public services in conducting research, finding,
preparing list of disposal sites of dredged materials of maintenance dredging
constructions of public navigation channels under their management and communicating
with competent authorities to request for approval of dredged material disposal
sites.
Article 5. Contents of control and monitor
The contents of controlling and monitoring the
maintenance dredging constructions of public navigation channels financed by
state budget shall comply with Articles 5 and 20 of Decree No. 159/2018/ND-CP
dated November 28, 2018 of Government on management of dredging port waters and
inland waterway (hereinafter referred to as “Decree No. 159/2018/ND-CP”) and
following provisions:
1. Operation diaries must use form under Annex I
attached to this Circular. Supervision consultants shall examine and encourage
construction contractors to keep operation diaries using form under Annex I
attached to this Circular.
2. On a weekly basis, the supervision consultants
shall submit reports by post or in person to Vietnam Maritime Administration
using forms under Annex II attached to this Circular together with photos of
the operation diaries (of the reporting week).
3. Data examination and storage of dredging
monitoring systems installed on construction machinery and dredged materials
transports are prescribed as follows:
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b) The construction contractors shall fully provide
data collected from video recording devices installed on dredged material
transports and disposal vehicles for the enterprises providing public services;
c) Bodies providing supervision consulting services
shall fully comply and consolidate photos taken from dredged material
transports and disposal vehicles (compartments storing dredged materials) as
per the law together with weekly reports on supervision and consulting under
Annex II attached to this Circular and submit to Vietnam Maritime
Administration and the enterprises providing public services;
d) Bodies providing AIS information management and
utilization services supervising dredging vehicles shall store field data on
number of vehicles, position, speed and halt locations produced by AIS devices
installed on vehicles participating in constructing, transporting and disposing
dredged materials;
dd) The enterprises providing public services shall
store data from video recording devices installed on construction machinery
provided by the construction contractors and photos from the dredged material
transport and disposal vehicles (compartments storing dredged materials) at
specific times prescribed by the supervision consultants;
e) Data retrieved from the dredging monitoring
systems installed on construction vehicles, dredged material transports and
disposal vehicles shall be archived for 3 years.
Section 2. IMPLEMENTATION OF TURNKEY STANDARD
MAINTENANCE DREDGING OF NAVIGATION CHANNELS IN DEFINITE PERIOD
Article 6. Construction design and cost
estimates
1. Produce construction design and cost estimates
Design of construction drawings and estimates with
respect to turnkey standard maintenance dredging in definite period shall be
produced in consideration of;
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b) Standard maintenance of navigation channels are
approved by Ministry of Transport in plan for maintenance dredging of public
navigation channels financed by state budget;
c) Calculated load of standard maintenance dredging
of navigation channels shall be annual average load determined by alluvial soil
volume, calculated based on figures publicized in periodic maritime notice,
measurements relating handover of the cleared site and measurements relating
acceptance testing of maintenance dredging of navigation channels at least in
the last 3 years. Dredging load includes initial dredging load (determined by
figures publicized in the latest maritime notice and adjusted through
measurements upon handover of cleared site) and standard maintenance dredging
load of navigation channels in the period from the initial dredging exclusively
to the end of turnkey standard maintenance dredging inclusively;
d) Cost estimates of turnkey standard maintenance
dredging shall be determined based on dredging load corresponding to standard
design of navigation channel, disposal sites of dredged materials and period of
standard maintenance.
2. The enterprises providing public services shall
a) based on the plans for maintenance dredging of
public navigation channels, annual estimated state budget allocation assigned
by Ministry of Transport, contracts for provision of public services utilizing
state budget to conduct maintenance dredging of navigation channels signed by
Vietnam Maritime Administration and the enterprises providing public services
and disposal sites of dredged materials approved by competent authorities, the
enterprises providing public services shall select and sign contracts with
design, appraisal and environmental protection consulting bodies, prepare plans
for submersion (if any); produce, appraise and present Vietnam Maritime
Administration construction drawings and cost estimates of turnkey standard
maintenance dredging in a definite period, cost estimates for environmental
protection, production of submersion plans and expenditure for handover of sea
areas (if any); inspect and present task outlines and technical methods for
survey, measurement and handover of cleared sites, supervision outline, task
outline and technical methods of survey, measurement and irregular examination,
task outline and technical methods of survey, measurement and technical methods
of survey and acceptance produced by monitoring and consulting bodies;
b) based on accepted disposal sites of dredged
materials of navigation channels, maritime infrastructure recovery plans shall
be approved by Ministry of Transport to request consulting bodies to produce
and fulfill environmental protection documents to propose competent authorities
as per the law.
3. Vietnam Maritime Administration shall
a) appraise and approve contents presented by the
enterprises providing public services specified in Point a Clause 2 of this
Article;
b) approve cost estimates for expenditure on
survey, measurements and irregular examinations of navigation channels
subjected to turnkey standard maintenance dredging at least 3 times/navigation
channel/year. Measurement and survey range of each instance shall be assigned
by developers with maximum surveyed area equals 30% of cleared site area of
navigation channels in order to examine the standard maintenance of navigation
channel design of construction contractors;
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Article 7. Preparation of contractor selection
plan
The enterprises providing public services shall
prepare contractor selection plans and submit to Vietnam Maritime
Administration according to bidding laws.
Article 8. Implementation of contractor
selection
1. Vietnam Maritime Administration shall:
a) appraise and approve bidding documents and
results of contractors selected for turnkey standard maintenance dredging of
navigation channels in a definite period;
b) select and sign contract with bodies providing
survey consulting services for handover of cleared project sites, supervision
consulting services, survey and irregular examination consulting services,
survey and acceptance testing consulting services, construction audit consulting
services and bodies providing AIS information management and utilization
services according to bidding laws;
c) accept contents of contracts for turnkey
standard maintenance dredging in a definite period as per the law.
2. The enterprises providing public services shall:
a) select and sign contracts with bodies providing
consulting services regarding bidding for dredging construction. Prepare
bidding documents selecting contractors for turnkey standard maintenance
dredging of navigation channels in a definite period and submit to Vietnam
Maritime Administration;
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c) select and sign contracts with bodies providing
consulting services regarding environmental protection according to bidding
laws;
d) negotiate contents of maintenance dredging
contracts: range, scale, standard, construction methods and equipment, contract
execution period, advances, payment, contract execution assurance, actions,
force majeure events and other necessary contents; request Vietnam Maritime
Administration to accept contract contents; sign contracts for turnkey standard
maintenance dredging with construction contractors.
Article 9. Handover of cleared construction
sites
Vietnam Maritime Administration shall take charge
and cooperate with the enterprises providing public services, bodies providing
supervision consulting and design consulting services to transfer cleared
construction sites to construction contractors before dredging.
Article 10. Organization of construction
1. The construction contractors shall
a) satisfy environmental requirements according to
approved environmental impact assessment reports and relevant environmental
protection laws;
b) stringently comply with approved transport
safety measures during the construction;
c) ensure performance security as per the law and
in conformity with maintenance dredging construction contracts in a manner
satisfactory to signed implementation quality;
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dd) within 2 days from the date of discovering
shallow water areas or at request and report of entities relating management,
operation and utilization of navigation channels, the construction contractors
must survey and prepare dredging methods; within 5 days at the latest from the
date of discovering shallow water areas or at request and report of entities
relating management, operation and utilization of navigation channels, the
construction contractors must dredge shallow water areas to ensure standard
design of the navigation channels and deadline thereof must not exceed 20 days
from the date on which dredging of shallow water areas as reported or requested
are implemented; and inform bodies providing supervision consulting services to
monitor the construction as per the law.
In case of unfavorable weather conditions for
survey or dredging of shallow water areas (confirmed by local Maritime Administration
and weather broadcast at the time of unlikely implementation), a construction
contractor must promptly report to the enterprises providing public services to
receive instruction and within 2 days from the conclusion of such force majeure
events, conduct survey, prepare dredging methods and dredge shallow water areas
to ensure standard design of navigation channels, construction deadline must
not exceed 20 days from the conclusion date of force majeure events and
implementation of dredging at shallow water areas;
e) select bodies conducting on site survey,
measurements and perform internal acceptance testing of construction results as
per the law. Any measurement or survey relating dredging results of shallow
water areas shall be finance by expenditure of the construction contractors in
cases specified in Point b Clause 2 of this Article;
g) in case a construction contractor fails to
dredge shallow water areas satisfactory to standard design of a navigation
channel meeting the deadline, progress or quality as agreed in contract and is
reported or complained without completing dredging at shallow water areas
satisfactory to standard design of a navigation channel within the time limit
specified in Point dd of this Clause, the enterprises providing public services
shall report to Vietnam Maritime Administration to consider reduction of
expenditure in the contract corresponding to the duration of unsatisfactory to
the standard (from the reporting time to the completion of rectification);
h) in case a construction contractor fails to
dredge shallow water areas satisfactory to the standard design of navigation
channels within the time limit specified in Point d of this Clause after being
reported or complained for the second times (already reported or complained for
the first time), the enterprises providing public services shall report to
Vietnam Maritime Administration to consider selection of other contractors
capable of dredging shallow water areas satisfactory to the standard with unit
price suitable with current construction conditions. The construction
contractors shall make full payment to the construction contractors selected as
their replacements. If a construction contractor fails to pay before deadline
or fails to fully pay the selected contractors upon satisfying payment
procedures as per the law, the enterprises providing public services shall
report to Vietnam Maritime Administration for consideration and decision on
adoption of necessary measures based on relevant provisions of the law and agreement
in the signed construction contracts to ensure the payment is made to the
contractors selected as replacements;
i) in case a construction contractor fails to
dredge in a manner satisfactory to the standard design of navigation channels
ensuring construction progress and quality as agreed upon in contracts and
fails to dredge shallow water areas satisfactory to the standard design of
navigation channels within the time limit specified in Point dd of this Clause
despite being reported or complained for the third times or disposes dredged
materials at incorrect locations, illegally transfers contractors and conducts
dredging activities causing serious maritime incidents or environmental
pollution due to subjective errors of that contractor, the enterprises
providing public services must report to Vietnam Maritime Administration for
consideration of termination of signed contract and select other contractors
capable as per the law to continue with the construction;
k) apart from measures specified in Points g, h and
I of this Clause, a construction contractor is susceptible to contract penalty
clause, rectification of violations, responsibilities for incidents relating
ship operation due to shallow navigation channels and other responsibilities
according to regulations and law and agreement in signed construction
contracts.
2. The enterprises providing public services shall
a) regularly manage, examine and monitor
construction of contractors and process of survey, measurement and acceptance
testing occurring on site;
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c) publicize maritime notice based on survey and
measurement results as per the law;
d) periodically report the survey and measurement
results and maintenance dredging results to local Vietnam Maritime
Administration and Maritime Administration as prescribed in contracts for
provision of public services financed by state budget for dredging of
navigation channels;
dd) report results of environment quality monitor
during the process of maintenance dredging to Ministry of Transport and
relevant entities according to environmental protection laws.
e) examine and monitor compliance of construction
contractors during the construction process with provisions on environmental
protection and transport safety. Request developers to suspend the construction
to take actions against violations of contractors and relevant entities and
persons (if any).
3. Vietnam Maritime Administration shall
a) direct the enterprises providing public services
and relevant entities conduct periodic survey, measurement and issue maritime
notice as per the law to examine the maintenance of design standard of
navigation channels of the contractors and assist acceptance testing in each
phase or release acceptance testing;
b) direct consulting bodies to survey, measure and
irregularly examine the maintenance of design standard of navigation channels
of the contractors;
c) inspect maintenance dredging quality and
progress, and maritime safety during the constructions; suspend the
constructions and take actions against violations of contractors and relevant
entities and persons as per the law.
4. The examination and monitor shall comply with
Article 5 of this Circular.
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1. Acceptance testing of turnkey standard
maintenance dredging of navigation channels in a definite period shall comply
with Clauses 1, 4, 6 Article 21 of Decree No. 159/2018/ND-CP and relevant
provisions of the law.
2. The enterprises providing public services shall
issue maritime notice as per the law upon completion of the constructions.
Article 12. Payment and settlement of constructions
Payment and settlement of the constructions shall
be implemented as per the law.
Section 3. organization
of irregular maintenance dredging of public navigation channels
Article 13. Cases of irregular maintenance
dredging
Irregular maintenance dredging of public navigation
channels to ensure traffic safety is dredging on an irregular basis due to
force majeure which may cause unsafe maritime traffic or seriously impact
maritime activities.
Article 14. Assignment of implementation
Ministry of Transport assigns Vietnam Maritime
Administration to exercise authority of an investment decider with respect to
the constructions of maintenance dredging of public navigation channels.
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Irregular maintenance dredging of public navigation
channels shall follow steps below:
1. Irregular tasks presentation and appraisal.
2. Selection of contractors
3. Cleared site survey and handover, making of
construction design and cost estimates.
4. Implementation of construction and supervision,
examination.
5. Construction acceptance testing.
6. Construction settlement.
7. Handover of estimated state budget expenditure.
8. Construction payment.
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1. The enterprises providing public services shall
take charge and cooperate with local Maritime Administration, conduct initial
survey and report to Vietnam Maritime Administration regarding irregular task
of maintenance dredging of public navigation channels including disposal sites
of dredged materials approved by competent authorities.
2. Vietnam Maritime Administration shall appraise
and evaluate level of depletion, supply, and erosion of navigation channels and
maritime unsafe potential or any serious impact on maritime activities; serve
the role of an investment decider to approve the irregular task and decide to
conduct maintenance dredging of public navigation channels.
Article 17. Selection of contractors
1. The enterprises providing public services shall
assess and recommend (competent and experienced construction, monitor, survey,
design) contractors to promptly carry out contract package originating from
force majeure, request Vietnam Maritime Administration to approve such policy
before selecting contractors.
2. Within 15 days from the date on which contract
is awarded, the enterprises providing public services shall:
a) survey and transfer cleared sites, prepare
design and cost estimates as per the law and present Vietnam Maritime
Administration for approval; complete direct contracting procedures, including:
preparation and submission of draft contract to the contractors which specifies
scope and contents of work to be implemented, deadline thereof, work quality to
be satisfied and corresponding cost thereof for contract negotiation and
finalization;
b) based on results of the contract negotiation and
contractor acceptance of Vietnam Maritime Administration, the enterprises
providing public services shall approve direct contracting results and sign
contracts with directed contractors.
Article 18. Cleared site survey and handover,
making of construction design and cost estimates.
1. Cleared site survey and handover
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b) The enterprises providing public services,
supervision consulting services, design consulting services and construction
contractors shall examine and monitor implementation of cleared site survey and
measurement of survey consulting contractors and perform acceptance tasting
with respect to results of survey and transfer of cleared sites to the construction
contractors.
2. Construction drawings and cost estimates shall
be made based on the results of survey and transfer of cleared sites serving
dredging of navigation channels depleted, supplied or eroded due to force
majeure events.
3. The enterprises providing public services shall
prepare, appraise and present Vietnam Maritime Administration the construction
drawings and cost estimates for approval; inspect and present task outline and
technical methods for survey, measurement and transfer of cleared sites,
monitor outline, task outline and technical methods for monitor and acceptance
testing prepared by bodies providing supervision consulting services and survey
consulting services.
4. Vietnam Maritime Administration shall appraise
and approve contents presented by the enterprises providing public services
specified in Clause 3 of this Article.
Article 19. Implementation of construction and
supervision, examination
1. Implementation of construction
a) The enterprises providing public services are
assigned with responsibilities to manage and examine implementation of
construction and supervision consulting contractors during construction
process;
b) Vietnam Maritime Administration shall conduct
irregular examination (if necessary) to ensure construction quality and
progress;
c) The enterprises providing public services shall
prepare measures to ensure traffic safety and present local Maritime
Administration for approval as per the law.
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Article 20. Construction acceptance testing
1. Comply with Clauses 1 and 4 Article 21 of Decree
No. 159/2018/ND-CP.
2. The enterprises providing public services shall
issue maritime notice as per the law upon completion of the constructions.
Article 21. Payment and settlement of
constructions
Payment and settlement of the construction shall be
implemented as per the law.
Article 22. Handover of estimated state budget
expenditure.
Expenditure on implementation of irregular dredging
public navigation channels shall be allocated from state budget assigned for
maritime economic operations (irregular tasks guaranteeing traffic safety).
Section 4. contracts
for construction of maintenance dredging of navigation channels
Article 23. Contracts for construction of
maintenance dredging of navigation channels
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2. Contracts for construction of maintenance
dredging of navigation channels following quality maintenance (applicable to
turnkey standard maintenance dredging in a definite period) are contracts with
fixed rates during implementation period applied to all work contents included
in the contracts (package contracts).
Article 24. Principles for contract execution
1. Vietnam Maritime Administration shall act as
developer to assign the enterprises providing public services some tasks of the
developer regarding maintenance dredging of navigation channels via contracts
for provision of public services financed by state budget to conduct
maintenance dredging of navigation channels signed by Vietnam Maritime
Administration and the enterprises providing public services.
2. The enterprises providing public services shall
negotiate with construction contractors about contents of the contracts for
maintenance dredging of navigation channels based on contracts for provision of
public services financed by state budget to conduct maintenance dredging of
navigation channels specified in Clause 1 of this Article.
Article 25. Contents of construction contracts
Contents of the construction contracts for
maintenance dredging of navigation channels shall comply with regulations and
law of Government and guidelines of Ministry of Construction on management of
construction contracts. In addition, the construction contracts must include
following provisions:
1. In case a construction contractor fails to
complete construction satisfactory to construction progress and quality
requirements as agreed in a contract after having been expedited or complained
by the developer in writing for the third time, the contract will be terminated
and he/she will not receive acceptance testing or payment and is responsible for
paying construction damages and losses to the developer as prescribed in the
contract and relevant law provisions.
2. In case the construction contractor disposes
dredged materials in wrong places, causing environmental pollution or illegal
transfer of contract, he/she will be responsible for rectifying damage he/she
has caused and will be taken actions against according to relevant law
provisions.
3. With respect to construction contract for
maintenance dredging based on implementation quality:
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b) Contract contents must comply with Article 10 of
this Circular and must clarify range, scale, standard and duration of contract
execution, advances, payment, contract performance guarantee, actions, force
majeure and other necessary contents.
Chapter III
ORGANIZATION OF DREDGING OF
PORT WATERS UNDER MANAGEMENT OF MINISTRY OF TRANSPORT TOGETHER WITH PRODUCT
RECOVERY
Article 26. Compilation and publication of
dredging site list
1. On a yearly basis, Vietnam Maritime
Administration shall compile or revise list of dredging sites based on
provisions set forth under Clause 2 Article 4 of this Circular and following
information:
a) Name of dredging sites, design specification and
standards of the dredging sites;
b) Estimated amount of dredged materials for use,
type of dredged materials for use, implementation period;
b) Estimated initial investment and construction
budget.
2. The dredging site list must include mandatory
specified in Clause 3 Article 26 of Decree No. 159/2018/ND-CP.
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a) Vietnam Maritime Administration shall compile
the list dredging site and propose Ministry of Transport before June 15 each
year;
b) Ministry of Transport shall consult People’s
Committees of provinces or cities where the dredging sites are situated (if
necessary) before July 01 each year;
c) Ministry of Transport shall appraise and approve
the list of dredging sites.
4. Publication of the list of dredging sites shall
comply with Article 27 of Decree No. 159/2018/ND-CP.
Article 27. Initial investment
Based on the list of dredging sites approved by
Ministry of Transport, Vietnam Maritime Administration shall prepare initial
investment including expenditure specified in Points a, b and c Clause 1
Article 25 of Decree No. 159/2018/ND-CP and submit to Ministry of Transport for
consideration, appraisal and consolidation of the initial investment in annual
maritime infrastructure recovery plans.
Article 28. Necessary contents of project
contracts
A contract for project on promoting private sector
involvement in dredging of port waters shall comply with Article 35 of Decree
No. 159/2018/ND-CP and guidelines of Ministry of Construction on construction
contracts and following contents:
1. Information on parties of the contract
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Party B: An investor
Information on parties includes: information on
legal representatives, titles, address, phone number, account number, fax
number, TIN of each party of the contract.
2. Objectives and location of the project
a) Description of the project objectives;
b) Description of the project location.
3. Duration and progress of contract execution
a) The duration of contract execution including
duration of land clearance, commencement of construction and progress of each
work item in each site of the project, construction completion date shall be
made into detailed annexes specifying progress and duration of each work item
in each site;
b) Cases and eligibility of contract renewal or
early termination.
4. Scale and methods of construction
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b) Methods, process and plans of construction.
5. Contract price including:
a) Dredging expenditure (including payment made to
the state for activities specified in Points a, b and c Clause 1 Article 25 of
Decree No. 159/2018/ND-CP; compensation and land clearance expenditure);
b) Value of recovered products;
c) Difference in value between the dredging
expenditure and the value of recovered products;
d) Adjustment to the dredging expenditure, the
value of recovered products and the difference in value.
6. Handover of construction cleared sites
Vietnam Maritime Administration shall take charge
and organize transfer of cleared sites serving construction to investors before
dredging construction.
7. Construction technical and quality requirement
of the project, project acceptance testing and handover
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b) Criteria, basis and categories of the acceptance
testing;
c) Dossiers on acceptance testing and handover.
8. Disposal and transfer of project
The investors must not dispose or transfer the
project.
9. Prior to the signing of the construction
contract, Party B must:
a) Issue regulations on selection of consulting
contractors, goods suppliers and other contractors for joint adoption during
the project implementation satisfactory to equality, transparency and economic
efficiency;
b) Send the list of construction contractors
attached to dossiers on qualification of the construction contractors to Part A
for approval;
c) Party B must be accountable to Party A for
progress, quality, occupational safety, environmental protection, their errors
and activities performed by the construction contractors;
d) Party B must not assign the construction
contractors with workload under the contract that exceeds ratio specified in
bidding documents and relevant provisions of the law.
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a) Prior to contract effective date, Party B must
submit the contract performance guarantee to Party A ranging from 1% to 3% of
the total project investment, the contract performance guarantee may be either
a deposit or a margin or a bank guarantee of a bank or a financial institute in
Vietnam.
In case Party B includes partner contractors, each
partner must submit performance guarantee to Party A, amount of the performance
guarantee shall equal the contract value that each partner is responsible for.
If the partner contractors agree to let a leader thereof to submit the
performance guarantee, the leader shall submit the performance guarantee to
Party A then each partner shall submit the performance guarantee of the leading
contractor in the partnership an amount equivalent to contract value that each
partner is responsible for.
The performance guarantee must be valid and
effective until Party B has constructed and completed the construction
specified in the signed contract and tested for acceptance by Party A. If
clauses of the contract performance guarantee specify the expiry date and Party
B fails to satisfy obligations of the contract 10 days before the expiry date,
Party B shall extend value of the contract performance guarantee until the
construction is completed and all errors are rectified;
b) Party B shall not receive the contract
performance guarantee in case of rejection of executing a valid contract and
other cases (agreed upon by the parties). Party A must return the contract
performance guarantee to Party B once Party B has completed all works under the
contract.
11. Rights and obligations of Party A:
a) transfer navigation markers and cleared sites
for construction according to the contract to Party B.
b) examine and inspect construction process
according to applicable laws.
c) instruct the investor to choose a competent
independent supervision consulting body to supervise the project implementation
according to regulations on management of construction investment and
applicable laws.
d) examine, supervise and assess the compliance of
obligations of the investor in satisfying requirements regarding scale,
construction technical and quality standards, project progress, environmental
protection and fire prevention.
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e) assist Party B in contacting local authorities
to deal with issues (if any).
g) consider suggestions of reasonable revisions of
Party B regarding investment capital, technical design and other conditions to
ensure the project efficiency and propose competent authority.
h) other rights and obligations as per the law.
12. Rights and obligations of Party B:
a) complete procedures regarding resources,
environment, fire prevention and relevant procedures as per the law.
b) prepare and propose traffic safety assurance
plan as specified in Article 6 of Decree No. 159/2018/ND-CP.
c) select and sign contract with the competent
independent supervision consulting body (paid by Party B) after receiving
remarks of Party A to supervise the project implementation while conduct
acceptance testing, make payment and settlement of the contract according to
regulations on management of construction investment and applicable laws.
d) accept and transfer navigation markers and
cleared sites for dredging construction.
dd) manage or select and sign contract with the
competent independent consulting body (paid by Party B) to manage the
construction, conduct periodic survey and measurement activities, conduct
acceptance testing to bring the construction into use, make payment and
settlement of the contract according to regulations on management of
construction investment and regulations and law.
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g) fully comply with regulations on environmental
protection, fire prevention and measures to guarantee maritime traffic safety
during the construction. Be responsible for equipment and labor safety during
the project implementation.
h) fully satisfy taxes, duties, charges, fees and
other financial obligations as per the law.
i) comply with provisions on contract performance
guarantee specified in Clause 10 of this Article.
k) conduct periodic survey and measurement
activities with respect to results of the project implementation (based on
detailed project duration and progress to specify the periodic survey and
measurement time) under surveillance of representatives of Ministry of
Transport, Vietnam Maritime Administration, local Maritime Administration and
other relevant entities selected by Vietnam Maritime Administration. Figures of
the periodic survey and measurement upon completion must be submitted by Party
B promptly to competent agency and organization to issue maritime notice as
specified in Decree No. 58/2017/ND-CP dated May 10, 2017 of Government.
l) submit reports on a weekly basis to the local
Maritime Administration and on a monthly basis to Vietnam Maritime
Administration on project implementation conditions and results together with
photos of the operation diaries (of the reporting weeks). Operation diaries
must use form under Annex I attached to this Circular. Supervision consultants
shall examine and encourage construction contractors to keep operation diaries
using form under Annex I attached to this Circular.
m) request the supervision consulting body to
submit monthly reports on the project implementation results of the investor
and the supervision consulting body using form under Annex II attached to this
Circular together with photos of the operation diaries (of the reporting weeks)
to the local Maritime Administration and Vietnam Maritime Administration.
n) other rights and obligations as per the law.
13. Default clause
a) If Party A violates any terms or conditions of
the contract that leads to early termination of the contract, Party A is
responsible for compensating Party B for reasonable expenditure which Party B
has made by the time of contract termination but no more than 3% of the
dredging expenditure. Party A shall request the competent authority to consider
and approve the source of compensation in order to pay Party B;
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c) If Party B violates any terms or conditions of
the contract that directly impacts the project progress or quality, or leads to
early termination (except for force majeure specified in this contract), Party
B shall suffer the penalty clause (based on each project to specify the fine),
this fine shall be taken from the contract performance guarantee, if the
contract performance guarantee is not enough to cover the fine, the investor
shall make additional payment.
14. Contract termination
a) The contract termination shall occur on the
expiry date if both parties fail to reach an agreement to extend the contract
approved by the competent authority or when Party B finishes and transfers the
project to Party A (whichever case comes first);
b) Party A may terminate the contract early if:
Party B fails to make contract performance guarantee; Party B abandons the
construction of fails to continue to satisfy the obligations according to the
contract; Party B fails to conduct operations according to the contract for 15
consecutive days without valid reasons; Party B assigns subcontractors the
entire construction or dispose the contract without acceptance of Party A;
Party B goes bankrupt or insolvent, has their business license revoked and
assets administered.
c) Party B may terminate the contract early if:
Party A fails to fulfill their obligations according to the contract;
suspension of the project due to errors of Party A or regulations of Government
that lasts more than 45 days;
d) In case of early contract termination, the party
requesting the termination must send a notice to the other party regarding the
termination 10 days prior and follow procedures to terminate the contract,
except cases where one party goes bankrupt or insolvent, has their business
license revoked and assets administered, the contract may be terminated
immediately.
dd) The contract termination shall not affect nor
release any party from any debt, obligation or responsibility incurring or
arising prior to the date of contract termination.
15. Contract settlement
a) After record of completion inspection of all
work contents prescribed by the contract is signed by both parties, Party B
shall present Party A the contract settlement dossiers including: record of
completion inspection of all work contents under the contract; schedule of
contract settlement value (A-B settlement) which specifies the dredging
expenditure, value of recovered products, contract value; as-built documents,
construction operation diaries; other documents under the contract agreement
(if any).
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16. Contract finalization
a) A contract shall be finalized when: both parties
have satisfied their obligations under the signed contract; the contract is
terminated as specified in Clause 14 of this Article.
b) The contract finalization must be completed
within 30 days from the date on which parties to the contract satisfy their
obligations under such contract or the contract is terminated according to
Clause 13 of this Article. Unless either Party A or B goes bankrupt, insolvent,
has their business license revoked, the contract automatically expires without
finalization.
17. If either party encounters force majeure,
inform the other party in writing at earliest convenience and shall be excluded
from any liability due to the force majeure.
18. Documents attached to the contract
a) Documents attached to the contract are
inseparable parts of the contract, including: bid notice or direct contracting
documents; specific conditions of the contract; general conditions of the
contract; Bidding documents or request of Party A; design drawings and
technical instructions; bid or suggestion of Party B; contract negotiating
record, revisions of the contract; annexes of the contract; other relevant
documents.
b) Order of priority of application of documents
attached to the contract
The order of priority of application of documents
attached to the contract depends on mutual agreement between both parties. In
the event of no agreement between the parties, follow order specified in Point
a of this Clause.
19. Dispute resolution
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b) During the contract implementation, should there
be any difficulties, both parties must actively cooperate and prioritize
negotiation as a solution within 30 days from the date on which the dispute
occurs;
c) In the event of no negotiation between the
parties, report to the authority approving the project for consideration. If
mutual agreement is still not reached, the dispute shall be dealt with by an
arbitrator at Vietnam International Arbitration Center.
Chapter IV
IMPLEMENTATION
Article 29. Entry into force
1. This Circular comes into force from November 1,
2019.
2. The turnkey standard maintenance dredging of
navigation channels in a definite period starts from 2020.
3. Annuls Circular No. 25/2013/TT-BGTVT dated
August 29, 2013 of Minister of Transport on procedures for dredging of
navigation channels, waters, water areas in port waters together with product
collection, and scouting and extraction of minerals in port waters and
navigation channels without using state budget and state management on maritime
and Circular No. 28/2015/TT-BGTVT dated June 30, 2015 of Minister of Transport
on amendments to a number of Articles of Circular No. 25/2013/TT-BGTVT dated
August 29, 2013 of Minister of Transport.
Article 30. Implementation
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PP. MINISTER
DEPUTY MINISTER
Nguyen Van Cong