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MINISTRY
OF CONSTRUCTION OF VIETNAM
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SOCIALIST
REPUBLIC OF VIETNAM
Independence - Freedom – Happiness
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No.
02/2023/TT-BXD
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Hanoi,
March 03, 2023
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CIRCULAR
Guiding certain contents of construction
contracts
Pursuant to the Construction Law
dated June 18, 2014; the Law amending certain Articles of the Construction Law
dated June 17, 2020;
Pursuant to Decree No.
52/2022/ND-CP dated August 08, 2022 of the Government on functions, tasks,
powers and organizational structure of the Ministry of Construction of Vietnam;
Pursuant to Decree No.
37/2015/ND-CP dated April 22, 2015 of the Government elaborating construction
contracts;
Pursuant to Decree No.
50/2021/ND-CP dated April 01, 2021 on amendments to Decree No. 37/2015/ND-CP
dated April 22, 2015 of the Government elaborating construction contracts;
At the request of the Director
of the State Authority of Construction Economics;
The Minister of Construction
hereby promulgates a Circular guiding certain contents of construction
contracts.
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This Circular provides detailed
guidance on certain contents of the construction contract; provides model
performance contracts, consulting contracts, engineering, procurement, and
construction (EPC) contracts.
Article 2. Regulated entities
1. This Circular applies to
entities involved in setting and management of the execution of construction
contracts applicable to investment and construction projects funded by public
investments and non-public investment state funds, and construction contracts
between project enterprises and contractors for performing tasks of contract
packages of the public-private partnership (PPP) projects.
Organizations and individuals may
apply regulations in this Circular to preparation and management of
construction contracts for other financed projects.
2. In case construction
contracts of projects financed by official development assistance (ODA)
capitals and concessional loans arising from International Treaties to which
Vietnam is a signatory are constituted by provisions different from the
provisions specified in this Circular, such international treaties shall be
applied.
Article 3. Payment, advance
payment and dossiers on advance payment for construction contracts
1. The payment for a construction
contract shall comply with the regulations in Article 19 of Decree No.
37/2015/ND-CP.
2. In case production of structural
elements and semifinished products with great values and building materials
reserved by season is eligible for advance payment as prescribed in Clause 7
Article 18 of Decree No. 37/2015/ND-CP, the application for advance payment
must list names, unit prices and total values of each type of materials,
structural elements and semifinished products. When payment is made, the value
of completed quantity which has been inspected and accepted must be reduced by
an amount corresponding to the advanced value under the contract.
3. The advance payment as prescribed in Clause 4 Article
19 of Decree No. 37/2015/ND-CP shall be based on specific conditions of each
advance payment to decide the advance payment value and guarantees for advance
payments, thereby ensuring the efficiency and avoiding loss of capital. Some
specific cases:
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b) For products and works which are
in progress or unfinished as agreed upon in the contract, the degree of
completion of each specific case and detailed unit prices of such products and
works specified in the contract shall be bases for making advance payment.
4. For products and works which are
unfinished due to reasons including termination of their contracts or failure
to check and take over products by one of parties to the contract,
responsibilities and obligations of each relevant entity must be specified
before making payment.
5. An advance payment dossier
includes: Final Acceptance Certificate (FAC) or workload confirmation record
(if products or works fail to satisfy requirements for acceptance), Valuation
table of workload generated out of contract for payment (increase or decrease);
Valuation table of workload generated out of contract for advance payment and
Request for advance payment.
Article 4. Adjustments to
workloads prescribed in construction contracts
1. Adjustments to workloads
specified in construction contracts shall comply with the regulations in
Article 37 of Decree No. 37/2015/ND-CP which are amended by Clause 13 Article 1
of Decree No. 50/2021/ND-CP.
2. If adjustments to workloads
between members of a consortium of contractors of a contract do not affect
prices of the contract, the investor shall make a decision on the basis of the
agreement and unification of members of the consortium and qualifications of
each member in a manner that ensures safety, quality, efficiency and progress
of the contract.
Article 5. Adjustments to
progress of construction contracts
1. Adjustments to progress of
construction contracts shall comply with regulations in Article 39 of Decree
No. 37/2015/ND-CP.
2. When adjustments to progress of
construction contracts prescribed in Point a Clause 2 Article 39 of Decree No.
37/2015/ND-CP are made, contracting parties and contractors shall be
responsible for evaluating impacts of cases of force majeure on the progress of
construction contracts for determining and deciding adjustments accordingly.
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a) Contracting parties and
contractors shall, on the basis of the requests for suspension of state
competent authorities, evaluate impacts on the progress of construction
contracts to be the basis for determining and coming to agreements to adjust
the progress of such contracts.
b) If there are incurred expenses
due to an extension of contract period, contracting parties and contractors
shall, based on terms of their contracts and instructions of state competent
authorities on events leading to the suspension from execution of construction
contracts, reasonably determine and come to agreements concerning items of
incurred expenses.
Article 6. Adjustments to unit
prices and prices of construction contracts
1. Adjustments to unit prices of
construction contracts shall comply with the regulations in Article 38 of
Decree No. 37/2015/ND-CP which are amended by Clause 14 Article 1 of Decree No.
50/2021/ND-CP.
2. If adjustments to prices of
construction contracts result in adjustments and additions to such contracts,
appendices must be signed as the basis for adjusting prices of such contracts.
Investors shall be responsible for approving or appealing to approve revised
and supplementary estimates according to regulations of law on management of
work construction investment expenses and construction contracts to be the
basis for addition of the signed appendices to such contracts.
3. Methods for adjusting prices of
construction contracts
a) Methods for adjusting prices of
a construction contract shall comply with the instructions in Appendix I
enclosed herewith. The application of methods for adjusting prices must be
satisfactory to nature of works, types of prices of the contract, currencies
and must be agreed upon in the contract.
b) For time-based consulting
contracts (months, weeks, days and hours), adjustments to salary levels for
experts shall be made on the basis of the formula for adjusting labor costs
specified in section I Appendix I enclosed herewith.
Article 7. Instructions for
using and applying model construction contracts
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2. The model construction contracts
enclosed with this Circular shall be applied to investors and contractors. If
contracting parties are the general contractors or prime contractors, parties
shall study and apply necessary contents of these model contracts to establish
and manage the contract performance.
3. The model construction contracts
enclosed herewith includes:
a) Model consulting contract
specified in Appendix II enclosed herewith which is applied to consulting
contracts for preparation of feasibility study reports, construction surveys,
construction designs and construction supervision.
b) Model performance contract
specified in Appendix III enclosed herewith.
c) Model EPC
contract specified in Appendix IV enclosed herewith which is applied to
lump-sum contracts. If prices of a contract are based on fixed unit prices,
adjusted unit prices or combination of types of prices of the contract, parties
shall, on the basis of regulations of law and this Circular, amend terms of
their EPC contract templates for establishing the contract.
4. For simple and small-scale contracts,
types of consulting contracts and other combined contracts, parties shall refer
and apply the model construction contracts enclosed with this Circular for
adjusting and amending terms of their contract templates for establishing
contracts.
5. When using the model
construction contracts enclosed herewith for dealing and signing construction
contracts, specific requirements and conditions of packages, projects and the
regulations of Decree No. 37/2015/ND-CP which are amended by Decree No.
50/2021/ND-CP, other regulations of law and the instructions in this Circular
shall be based on. For contents of a contract, the following contents must be
agreed specifically:
a) Specific regulations on time
limit for payment, time limit for contract execution, deadline for response,
expiry date of the contract and similar cases must be agreed upon.
b) If the contractor is a
consortium, the performance guarantee - advance payment guarantee must be
agreed upon as prescribed by law.
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d) If the price of the construction
contract is based on adjusted unit prices, methods for price adjustments, price
data sources and pricing basis must be agreed upon but not be contrary to
bidding documents and law on construction contracts.
dd) The contents of the contract
shall be adjusted and supplemented accordingly on the basis of the nature and
conditions of the package.
Article 8. Transition provisions
1. Construction contracts which
have been signed and executed before the date on which this Circular comes into
force shall comply with regulations on construction contracts which are
applicable before the date on which this Circular takes effect.
2. For construction contracts that
are under negotiation and have not been signed, any contents that are not
conformable with the regulations of this Circular should be reported to the
persons competent to decide investment for consideration and decision on the
principle of ensuring the quality, progress and efficiency of construction
investment projects and not prejudicing legitimate rights and interests of the
parties.
3. Contents of construction contracts
in bidding documents and requests for proposals which are approved but not
issued must be adjusted in conformity with the regulations of this Circular. If
the bidding documents and requests for proposals have been issued, any
adjustments to contents relating to the contracts must be notified to all
contractors that have purchased such bidding documents and requests for
proposals. Clause 2 of this Article shall be applied in case of bid closing.
Article 9. Effect
1. This Circular comes into force
from April 20, 2023.
2. This Circular replaces Circular
No. 07/2016/TT-BXD dated March 10, 2016 of the Minister of Construction guiding
adjustments to prices of construction contracts, Circular No. 08/2016/TT-BXD
dated March 10, 2016 of the Minister of Construction guiding certain contents
of consulting contracts, Circular No. 09/2016/TT-BXD dated March 10, 2016 of
the Minister of Construction guiding performance contracts and Circular No.
30/2016/TT-BXD dated December 30, 2016 of the Minister of Construction guiding
engineering - procurement and construction contracts./.
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PP.
MINISTER
DEPUTY MINISTER
Bui Hong Minh