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THE MINISTRY OF
CONSTRUCTION
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SOCIALIST
REPUBLIC OF VIET NAM
Independence - Freedom - Happiness
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No.
03/2009/TT-BXD
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Hanoi, March 26,
2009
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CIRCULAR
DETAILING A NUMBER OF PROVISIONS OF THE GOVERNMENT'S DECREE
No. 12/2009/ND-CP OF FEBRUARY 12, 2009, ON MANAGEMENT OF INVESTMENT PROJECTS ON
THE CONSTRUCTION OF WORKS
Pursuant to the Government's
Decree No. 17/2008/ND-CP of February 4, 2008, defining the functions, tasks,
powers and organizational structure of the Ministry of Construction;
Pursuant to the Government's Decree No. 12/2009/ ND-CP of February 12, 2009, on
management of investment projects on the construction of works;
The Ministry of Construction details a number of provisions of the Government's
Decree No. 12/2009/ND-CP of February 12, 2009, on management of investment
projects on the construction of works (below referred to as Decree 12/CP), as
follows:
Chapter I
DETAILED PROVISIONS ON
THE IDENTIFICATION OF INVESTORS; AND EVALUATION AND APPROVAL OF INVESTMENT
PROJECTS ON THE CONSTRUCTION OF WORKS
Article 1.
Identification of investors of state budget-funded projects under Points b and
c. Article 3 of Decree 12/CP
1. For projects in which
investment is decided by ministers, heads of ministerial-level agencies or
presidents of People's Committees at all levels, investment deciders shall
assign managers or users of works to act as investors.
In case managers or users of
works cannot yet be identified or managers or users of works are ineligible for
organizing the implementation of projects, investment deciders shall assign
eligible units to act as investors. Managers or users of works shall appoint
their employees to join units assigned to act as investors in formulating
projects, designing, monitoring, managing, testing, receiving and putting works
into operation or use. The employees appointed to join investors are those who
will later participate in managing and using works or have professional
qualifications relevant to the nature of projects.
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2. If it is impossible to identify
units to be assigned to act as investors according to the above provisions,
investors shall be identified as follows:
a/ Investment deciders may
concurrently act as investors.
b/ Investment deciders may
assign project management units set up under their decisions to act as
investors if these project management units have the legal entity status and
are fully eligible for implementing projects, or investment deciders may
contract eligible organizations to act as investors.
Article 2.
Evaluation of investment projects on the construction of works under Article 10
of Decree 12/CP
1. For state budget-funded
projects:
a/ After receiving investors'
project dossiers, units in charge of project evaluation shall seek opinions of
agencies managing specialized construction works defined in Clause 3 of this
Article on basic designs and seek opinions of other agencies related to
projects.
b/ Units in charge of project
evaluation shall sum up evaluation contents and opinions on basic designs and
opinions of relevant agencies: make remarks, assessments and recommendations
and submit them to investment deciders for approval of projects.
c/ The time limit for evaluating
a project is specified in Clause 7, Article 10 of Decree 12/CP, of which the
time limit for examining and giving opinions on basic designs and seeking
opinions of relevant agencies thereon, counting from the date of receipt of a
complete dossier, is:
- 45 working days, for projects
of national importance;
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- 15 working days, for group-B
projects;
- 10 working days, for group-C
projects.
Past the above time limit, if
relevant agencies give no opinions, they will be deemed to have agreed with the
dossier and shall take responsibility for the fields under their management.
2. For projects funded with
capital of other sources:
a/ Investment deciders shall
themselves organize the evaluation of projects and may designate units in
charge of project evaluation.
b/ When evaluating a project,
the investment decider shall seek opinions of the agency managing specialized
construction works defined in Clause 3 of this Article on its basic design and
opinions of agencies related to the project in accordance with law.
c/ The time limit for examining
and giving opinions on basic designs and seeking opinions of relevant agencies
thereon is specified at Point c, Clause 1 of this Article.
3. Competence of agencies
managing specialized construction works to give opinions on basic designs:
a/ For projects of national
importance and group-A projects:
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- The Ministry of Agriculture
and Rural Development may give opinions on basic designs of investment projects
on the construction of irrigation works, dikes and other specialized
agricultural works.
- The Ministry of Transport may
give opinions on basic designs of investment projects on the construction of
transport works.
- The Ministry of Construction
may give opinions on basic designs of investment projects on the construction
of civil works, industrial works on construction materials and urban technical
infrastructure facilities, and other investment projects on the construction of
works at the request of the Prime Minister. Particularly for investment
projects on the construction of civil works of less than 20 stories,
provincial-level Construction Services of localities where projects exist may
give opinions on their basic designs.
For a project involving works of
different types, the Ministry in charge of giving opinions on its basic design
is one of the above Ministries having the function of managing works which arc
decisive to the nature and purposes of the project.
b/ For group-B and group-C
projects:
- Provincial-level Industry and
Trade Services may give opinions on basic designs of investment projects on the
construction of mines, oil and gas works, power plants, power transmission
lines, transformer stations, works on chemicals, industrial explosive materials,
machine manufacture, metallurgy, and other specialized industrial projects,
except industrial works on construction materials.
- Provincial-level Agriculture
and Rural Development Services may give opinions on basic designs of investment
projects on the construction of irrigation works, dikes and other specialized
agricultural works.
- Provincial-level Transport
Services may give opinions on basic designs of investment projects on the
construction of transport works.
- Provincial-level Construction Services
may give opinions on basic designs of investment projects on the construction
of civil works, industrial works on construction materials and urban technical
infrastructure facilities, and other investment projects on the construction of
works at the request of presidents of provincial-level People's Committees.
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c/ For group-B and group-C
projects in which investment is decided by the Ministry of Industry and Trade,
the Ministry of Agriculture and Rural Development, the Ministry of Transport or
the Ministry of Construction and which are in the specialized fields assigned
to them for management, these Ministries may themselves examine basic designs
without having to seek opinions of provincial-level Services managing
specialized construction works defined at Point b. Clause 3 of this Article, on
their basic designs.
d/ State economic groups which
are assigned by the Government to perform state management of certain fields
may themselves examine basic-designs of investment projects on the construction
of works in those fields in which investment is decided by themselves without
having to seek opinions of agencies managing specialized construction works on
basic designs. For projects in other fields in which investment is decided by
these groups, opinions of agencies managing specialized construction works
defined at Point a or b of this Clause, must be sought on their basic designs.
4. Responsibilities of agencies
giving opinions on basic designs:
a/ Agencies managing specialized
construction works shall examine, give opinions and take accountability for the
contents specified in Clause 3, Article 11 of Decree 12/CP.
b/ When giving opinions on basic
designs, agencies managing specialized construction works will not collect
charges or fees. Units in charge of project evaluation shall divide project
evaluation charges to agencies participating in project evaluation.
Article 3.
Evaluation and approval of econo-technical reports on the construction of works
under Article 13 of Decree 12/CP
1. For state budget-funded
works:
a/ Investors shall evaluate
working drawing designs and estimates of works and submit them to persons with
investment-deciding competence for approval. When necessary, investors may hire
consultants to conduct verification as a basis for evaluation of working
drawing designs and cost estimates of the construction of works. Construction
state management shall be performed through the grant of construction permits.
The results of evaluation of
working drawing designs and estimates shall be presented in the form provided
in Appendix 1 to this Circular (not printed herein).
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- A report on the econo-technical
report for evaluation, made according to a form provided in Appendix 2 to this
Circular (not printed herein);
- The econo-technical report:
- A report on the results of
evaluation of the working drawing design and cost estimates.
c/ Investment deciders shall
evaluate econo-technical reports before approving them. Units in charge of
evaluation of econo-technical reports are specialized units of investment
deciders.
d/ The time limit for evaluation
of an econo-technical report is 15 working days.
e/ The evaluation of an
econo-technical report covers:
- Examination of efficiency
assurance elements: necessity of investment; size; implementation period; total
investment capital and socio-economic benefits.
- Examination of feasibility
assurance elements: land use demand and ground clearance capability; elements
affecting the work, such as those related to defense, security, environment and
relevant regulations.
- Examination of the results of
evaluation of the working drawing design and estimate.
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- Units in charge of evaluation
of econo-technical reports shall send dossiers of econo-technical reports to
investment deciders for approval.
A dossier of an econo-technical
report submitted for approval comprises a report on the econo-technical report
for approval, made according to a form provided in Appendix 3 to this Circular
(not printed herein); and the investor's dossier of the econo-technical report
submitted for evaluation as mentioned at Point b. Clause 1 of this Article.
- A decision approving the
econo-technical report, made according to a form provided in Appendix 4 to this
Circular (not printed herein).
An approved econo-technical
report means that the person with investment-deciding competence has approved
the working drawing design and estimate; the investor is not required to
re-approve but only needs to sign for certification and append a seal
"approved" in the working drawing design before commencing
construction.
2. For works funded with capital
of other sources:
Persons with investment-deciding
competence shall evaluate and approve econo-technical reports by themselves and
take responsibility for their approval. Construction state management shall be
performed through the grant of construction permits.
Chapter II
DETAILED PROVISIONS ON
CONSTRUCTION PERMITS
Article 4.
Works not subject to construction permits under Point b. Clause 1, Article 19
of Decree 12/CP
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1. Works to be constructed in
lines not running through urban centers but conformable with approved
construction plannings.
2. Works under construction
investment projects in which investment has been decided by the Prime Minister,
ministers, heads of ministerial-level agencies or presidents of People's
Committees at all levels, except works only subject to formulation of
econo-technical reports.
Article 5.
Temporary construction permits under Clause 2. Article 19 of Decree 12/CP
1. Temporary construction
permits are only required in areas for which approved construction plannings
have been publicized but not yet implemented.
2. Based on the nature,
characteristics and period of implementation of a construction planning in each
region, the provincial-level People's Committee shall specify the size of works
to be granted temporary construction permits to suit the local practical
situation.
3. A temporary construction
permit must indicate the duration of existence of a work. Upon the expiration
of the duration indicated in the permit, if the ground has not yet been
cleared, such work is allowed to exist until the State clears the ground for
planning implementation. Then the investor shall voluntarily dismantle the work
or be coerced to do so and bear all expenses for dismantlement.
4. The competence to grant
temporary construction permits is similar to that for works subject to
construction permits under Article 23 of Decree 12/CP.
5. The compensation for ground
clearance for planning implementation must comply with current regulations;
particularly, compensation will not be paid for works constructed under
temporary construction permits.
Article 6.
Permits for the construction of rural houses
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2. The plan of the work
construction ground under Clause 3. Article 21 of Decree 12/CP shall be made
according to a form provided in Appendix 5 to this Circular (not printed
herein).
Such a plan must indicate sizes
and land-occupying area of the house, works on the land lot. distances to
surrounding works, and points for connecting electricity, communication, water
supply and drainage to outside public technical infrastructure facilities (if
any). The drawing must indicate the name of the house owner, address of residence
and construction location, and the name and address of the drawer.
Article 7.
Competence to grant construction permits under Clause 1. Article 23 of Decree
12/CP
Provincial-level People's
Committees may grant or authorize directors of provincial-level Construction
Services to grant construction permits for construction works mentioned in
Clause 1, Article 23 of Decree 12/CP.
Article 8.
Adjustment of construction permits under Article 24 of Decree 12/CP
1. When wishing to adjust
construction designs under granted construction permits regarding construction
location of the work or foundation level for construction of the work; red
marking lines or construction marking lines; construction area; total floor
area; height of the work; number of stories (for civil works) or other details,
investors shall apply for the modification of construction permits before
constructing works according to adjusted designs. For other changes, investors
are not required to apply for the modification of granted construction permits.
2. Agencies which have granted
construction permits have the competence to modify construction permits and
shall take responsibility for modifications. Modification of a construction
permit shall be written in the "extension, modification" section or
in an appendix to the construction permit already granted to the investor.
Article 9.
Construction management for works exempt from construction permits under Clause
1, Article 19 of Decree 12/CP
Before starting the construction
of works exempt from construction permits under Points b. c and d. Clause 1.
Article 19 of Decree 12/CP. investors shall notify in writing the dates of
starting construction, enclosed with drawings of construction plans, base plans
and main vertical sections of works, to agencies competent to grant
construction permits as decentralized and commune-level People's Committees for
information, monitoring and management under regulations. For works subject to
project formulation, apart from the above documents, written opinions of
agencies managing specialized construction works on their basic designs are
required.
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1. Competence to decide on the
dismantlement of works:
a/ People's Committees at all
levels may decide to dismantle works for ground clearance under construction
plannings and works subject to coercive dismantlement under law.
b/ Investors of projects or
owners, managers or users of works may decide to dismantle works mentioned in
Clause 1 Article 32 of Decree 12/ CP.
2. Work dismantlement plans:
a/ The dismantlement of a work
must have a dismantlement plan. The person deciding to dismantle a work shall
approve the dismantlement plan.
b/ The person deciding to
dismantle a work shall draw up the dismantlement plan or hire a consultant to
do so.
c/ A work dismantlement plan
must indicate dismantlement measures and process; dismantlement equipment and
shielding measures to ensure safety for people, property, security, order and environmental
sanitation, and dismantlement order, progress and funds.
d/ A work must be dismantled by
a capable and experienced unit under an approved dismantlement plan, ensuring
safety for people, property and adjacent works. Before dismantling a work, it
shall notify the commune-level People's Committee and owners of adjacent works
of the dismantlement.
Chapter
III
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For state budget-funded
projects, investors shall, based on the size and nature of projects and their
practical conditions and circumstances, select the forms and models of project
management below as appropriate.
Projects funded with capital of
other sources are encouraged to refer to and apply these forms and models of
project management.
Article 11.
Direct management of projects by investors under Articles 33 and 34 of Decree
12/ CP
1. Investors' direct management
of projects means that investors use their apparatuses to directly manage
project implementation or assign project management units established by them
to manage project implementation. Specifically:
a/ Model 1: Investors do not
establish project management units but use their existing apparatuses to
directly manage project implementation. This model is applicable to small
projects capitalized at under VND 7 billion each when investors' apparatuses
are capable of managing project implementation.
b/ Model 2: Investors set up
project management units to assist them in managing project implementation. Specifically:
- Investors shall assign
existing project management units to concurrently manage new projects.
- If existing project management
units are ineligible for managing new projects, investors shall set up new
project management units to manage project implementation.
2. In model 1, investors shall
use their legal persons to directly manage project implementation. Investors
shall issue decisions appointing their persons to participate in project
management with specific tasks, including persons directly in charge of project
management. Persons appointed to participate in project management may work on
a part-time or full-time basis.
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a/ Project management units are
set up and managed by investors, and have their powers and tasks assigned by
investors.
b/ Project management units have
the legal entity status or use the investor's legal entity status to manage
project implementation.
c/ The organizational structure
of a project management unit is composed of the director (or head), deputy
directors (or deputy heads) and professional staff members. This organizational
structure must suit assigned tasks and ensure the progress, quality and
efficiency of the project. Project management unit members may work on a
full-time or part-time basis.
d/ A project management unit may
be assigned to manage different projects provided that each project is
separately monitored and finalized in time in accordance with law.
e/ Project management units
shall operate under regulations promulgated by investors and take
accountability before investors and law for their assigned tasks and powers.
f/ Investors shall appoint
responsible persons to direct, urge and inspect project management units in exercising
their powers and performing their tasks in order to ensure that projects are
implemented according to approved contents and progress. Investors shall take
full responsibility for the jobs under their tasks and powers in accordance
with law, including jobs already assigned to project management units.
4. Investors (in model 1) or
project management units (in model 2), if having full capabilities as specified
in Decree 12/CP and relevant legal documents, may themselves perform such
project jobs as formulation and evaluation of designs and estimates; contractor
selection; construction supervision or quality inspection of construction
works. Investors and project management units may hire consultants to manage
the project implementation.
5. Project management units with
the legal entity status and professional capability may be assigned to manage
the implementation of projects of other investors in case agencies establishing
their project management units also decide on investment in those projects. In
this case, these agencies shall issue decisions assigning specific tasks and
promulgating mechanisms for coordination between investors and project
management units to ensure the progress, quality and efficiency of projects.
After the construction is completed, project management units shall hand over
the works to investors for operation or use. Those project management units may
be contracted to act as project management consultants for other investors if
they fully satisfy conditions specified by law and are so permitted by agencies
deciding on their establishment.
Article 12.
Investors' hiring of project management consultants under Articles 33 and 35 of
Decree 12/CP
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2. Project management
consultants must have full capabilities relevant to jobs they perform under
Decree 12/CP.
3. Project management
consultants shall perform project implementation management under contracts
signed with investors. Contracts on hiring project management consultants must
indicate the scope of jobs and management contents as well as powers and
responsibilities of consultants and investors.
4. Project management
consultants shall organize apparatuses and appoint persons in charge to
directly manage project implementation under contracts signed with investors.
Project management consultants shall notify in writing the tasks and powers of
their persons in charge and apparatuses directly managing projects to
investors, other contractors and concerned organizations and individuals.
5. Project management
consultants may hire other organizations or individuals to participate in some
jobs of project implementation management as approved by investors.
Chapter IV
TRANSITION PROVISIONS
Article 13.
Transition provisions on procedures for evaluating and approving investment
projects on the construction of works and subsequent jobs
1. Before the effective date of
Decree 12/CP. for investment projects on the construction of works which have
been evaluated but not yet approved, or which have been approved but not yet
implemented or are being implemented, evaluated procedures need not to be
re-evaluated. Subsequent jobs must comply with Decree 12/ CP and this Circular.
2. For projects approved before
the effective date of Decree 12/CP, in the course of their
implementation, investors shall report
adjustments to the projects which result in changes in evaluated basic designs,
if any, to investment deciders for decision. Units in charge of project
evaluation shall send dossiers of project adjustments to state management
agencies for opinions on basic designs under Decree 12/CP and this Circular.
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Article 14.
Transition provisions on the grant of construction permits
For works under investment
projects on the construction of works approved before the effective date of
Decree 12/CP which are subject to construction permits and for which dossiers
of application for construction permits had been submitted before the effective
date of Decree 12/ CP. dossiers of application for construction permits need
not to be made again under Decree 12/CP and this Circular.
Article 15.
Transition provisions on capability conditions for persons participating in
managing investment projects on the construction of works
Individuals who will participate
in project management under Clause 4. Article 36 of Decree 12/CP from January
1, 2010, shall obtain certificates of skills of managing investment projects on
the construction of works according to regulations.
Chapter V
IMPLEMENTATION PROVISIONS
Article 16.
This Circular replaces the Construction Ministry's
Circular No. 02/2007/TT-BXD of February 14, 2007, guiding a number of provisions
on the formulation, evaluation and approval of investment projects on the
construction of works: construction permits and management of investment
projects on the construction of works under the Government's Decree No.
16/2005/ND-CP of February 7,2005, and Decree No. 112/2006/ND-CP of September
29, 2006.
Article 17.
Effect
1. This Circular takes effect on
May 11,2009. To annul previous regulations on identification of investors:
evaluation and approval of investment projects on the construction of works:
grant of construction permits: dismantlement of works: and management of
investment projects on the construction of works which are contrary to Decree
12/CP and this Circular.
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THE MINISTER OF
CONSTRUCTION
Nguyen Hong Quan