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THE GOVERNMENT
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SOCIALIST REPUBLIC
OF VIET NAM
Independence - Freedom - Happiness
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No. 99/2007/ND-CP
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Hanoi, June 13,
2007
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DECREE
ON MANAGEMENT OF WORK CONSTRUCTION INVESTMENT EXPENDITURES
THE GOVERNMENT
Pursuant to the December 25,
2001 Law on Organization of the Government;
Pursuant to the November 26, 2003 Law on Construction;
At the proposal of the Construction Minister,
DECIDES:
Chapter I
GENERAL PROVISIONS
Article 1.-
Subjects of application
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Organizations and individuals
involved in the management of investment expenditures on construction of works
financed by other capital sources are encouraged to apply this Decree.
Article 2.-
Governing scope
This Decree provides for the
management of work construction investment expenditures, including the total
investment; work construction cost estimates; construction norms and prices;
contracts in construction activities; payment and settlement of investment
capital for construction of works financed by state capital, including state
budget capital, official development assistance, development investment credit
of the State, State-guaranteed credit and other investment capital of the
State.
For works financed by official
development assistance (referred to as ODA for short) sources, if the treaties
concluded by competent agencies or organizations of the Socialist Republic of
Vietnam contain provisions on work construction investment expenditure
management different from those of this Decree, those treaties prevail.
Article 3.-
Principles for management of work construction investment expenditures
1. The management of work
construction investment expenditures must ensure the objectives and efficiency
of investment projects on construction of works and objective requirements of
the market economy.
2. The management of work
construction investment expenditures is conducted for each construction work in
accordance with stages of work construction investment, designing steps, types
of capital sources and the States regulations.
3. The total investment and work
construction cost estimates must be accurately and fully calculated and suit
the duration of work construction. The total investment means the maximum
expenditure, which an investor is allowed to use for investment in work
construction.
4. The State performs the
function of managing the work construction investment expenditures through the
promulgation, guidance and inspection of the implementation of regulations on
management of work construction investment expenditures.
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Chapter II
TOTAL WORK CONSTRUCTION
INVESTMENT
Article 4.-
Contents of total work construction investment
1. The total work construction
investment (hereinafter referred to as total investment) means a projects
estimated expenditure determined under the provisions of Clause 1, Article 5 of
this Decree. The total investment serves as a basis for investors to formulate
plans and manage capital when making investment in construction of works.
2. The total investment covers
the construction expenses; the equipment expenses; the expenses for ground
clearance compensation and resettlement; the project management expenses; the
construction investment consultancy expenses; other expenses and reserve
expenses.
3. The expenses of the total
investment are specified as follows:
a/ The construction expenses
include the expenses for construction of works, work items; expenses for
demolition and dismantlement of old architectural objects; expenses for
construction ground leveling and fill-up; expenses for construction of
temporary and support facilities in service of the construction; makeshifts at
construction sites for dormitory and construction administration purposes;
b/ The equipment expenses
include expenses for procurement of technological equipment; expenses for
training and technology transfer, if any; expenses for installation, experiment
and adjustment; expenses for transportation and insurance; taxes and relevant
charges;
c/ The expenses for ground
clearance compensation and resettlement include expenses for compensation for
houses, architectural objects and cultivation plants on land and other
expenses; expenses for resettlement; expenses for organization of ground
clearance compensation; expenses for use of land in the construction duration,
if any; expenses for investment in construction of technical infrastructure, if
any;
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e/ The construction investment consultancy
expenses include expenses for consultancy on surveys, designing, construction
supervision, verification and other construction investment consultancy
expenses;
f/ The other expenses include
working capital in the course of trial production for investment projects on
construction for commercial purposes; loan interests in the construction
duration and other necessary expenses;
g/ The reserve expenses include
reserve expenses for arising work volumes and reserve expenses for drift of
prices in the work construction duration.
Article 5.-
Estimation of total investment
1. The total investment is
determined by one of the following methods:
a/ Calculating it according to
the projects base design, in which the construction expenses are calculated
according to the volume mainly from the base design, the other volumes
estimated and construction cost suitable to the market; the equipment expenses
are calculated according to the equipment quantity and categories suitable to
technological designs, the market prices of equipment and other elements, if
any; the expenses for ground clearance compensation and resettlement are
calculated according to the compensation and resettlement volume of the project
and relevant state regulations; other expenses are determined by way of making
estimates of provisional calculation in percentage (%) of the total
construction and equipment expenses; the reserve expenses are calculated
according to provisions of Clause 3 of this Article;
b/ Calculating it according to
the works flooring space and use capacity and the general construction cost by
structural parts, flooring space, utility (hereinafter called the general
construction cost), the corresponding investment capital ration for work
construction at the time of project formulation with adjustment and addition of
expenses not yet included in the general construction cost and the investment
capital ration for determination of the total investment;
c/ Calculating it on the basis
of figures of executed projects with similar econo-technical norms. Upon the
application of this method, the figures of similar projects must be calculated
in conversion to the time of formulating the projects and adjusting expenses
not yet determined in the total investment;
d/ Combining the methods specified
at Points a, b and c, Clause 1 of this Article.
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3. The reserve for arising work
volume is calculated in percentage (%) of all the expenses specified at Points
a, b, c, d, e and f, Clause 3, Article 4 of this Decree. The reserve for drift
of prices is calculated on the basis of length of the work construction
duration and the annual construction price indexes, suitable to types of
construction works with possible fluctuation of domestic and world market
prices taken into account.
Article 6.-
Appraisal and approval of total investment
1. Appraisal of total investment
constitutes a content of the appraisal of work construction investment
projects. Contents of total investment appraisal include:
a/ The suitability of the method
of determining the total investment with technical characteristics and nature
as well as technological requirements of work construction investment projects;
b/ The completeness,
reasonability and compliance with practical market requirements of the expense
items in the total investment;
c/ The calculations on
efficiency of work construction investment, risks, financial plans, loan
capital repayment plans, if any;
d/ Determination of the total
investment value, ensuring the efficiency of work construction investment.
2. Investment deciders shall
decide on the organization of appraisal of the total investment or may hire
organizations or individuals fully meeting the capability and experience
conditions to verify. The appraisal charges or verification expenses are
calculated into other expenses in the total investment. Organizations and
individuals performing the appraisal or verification of the total investment
shall bear responsibility before law for the reasonability and accuracy of the
appraisal or verification results.
3. The total investment stated
in an investment decision is approved by the investment decider.
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1. The approved total investment
is adjusted only in the following cases:
a/ There appear force majeure
circumstances: earthquakes, storms, floods, whirlwinds, tsunami, landslides;
wars or war dangers, which exert direct impacts on construction works;
b/ The approved planning is
adjusted, thus directly affecting the total investment in work construction;
c/ The investment deciders
change or adjust the work sizes upon emergence of new elements which bring
about higher socio-economic efficiency.
2. Competence to adjust total
investment:
a/ For construction works financed
by state budget capital: Investors shall report to and ask for permission of
investment deciders before adjusting the total investment;
b/ For construction works
financed by State-guaranteed credit sources, development investment credit
capital of the State and other investment capital of the State: Investors may
make decisions by themselves and take responsibility for the adjustment of the
total investment.
3. The difference between the
adjusted total investment and the approved total investment must be appraised
according to the provisions of Article 6 of this Decree.
Chapter
III
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Article 8.-
Contents of work construction cost estimates
1. The work construction cost estimates
(below referred to as work cost estimates) are determined according to specific
construction works and serve as a basis for investors to manage work
construction investment expenditures.
2. The work cost estimates are
formulated on the basis of work volumes determined according to technical
designs or construction drawing designs, the works tasks to be performed and
work construction unit price, the expenditure norms calculated in percentage
(%) (below referred to as percentage norms) necessary for the performance of
such work volumes and tasks.
3. The work cost estimate
contents include the construction expenses, equipment expenses, project
management expenses, construction investment consultancy expenses, other
expenses and reserve expenses.
Article 9.-
Work cost estimation
1. Work cost estimates are
formulated as follows:
a/ The construction expenses are
estimated for the works, principal work items, tasks of specific works and
determined by cost estimation. For supporting works, temporary works in service
of construction, makeshifts for dormitory and construction administration, the
construction expenses are determined by way of cost estimation or percentage
norms;
The construction expenses
include direct expenses, general expenses, pre-calculated taxable incomes and
value-added tax, expenses for construction of makeshifts at construction sites
for dormitory and construction administration;
b/ The equipment expenses in the
work cost estimates include expenses for equipment procurement, including expenses
for training and technology transfer, if any; expenses for equipment
installation, expenses for experiment, adjustment and other relevant expenses,
if any;
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c/ The project management
expenses include expenses necessary for investors to organize the project
management. The project management expenses are determined by percentage norms;
d/ The construction investment
consultancy expenses include expenses for consultancy on construction
investment project formulation, designing, construction supervision,
verification consultancy and other construction investment consultancy
expenses. The construction investment consultancy expenses are determined by
percentage norms or estimation;
e/ Other expenses include
expenses not yet specified at Points a, b, c and d, Clause 1 of this Article
and are determined by estimation or percentage norms;
f/ The reserve expenses for
arising work volumes are calculated in percentage of all the expenses specified
at Points a, b, c, d and e, Clause 1 of this Article. The reserve expenses for
drift of prices are calculated on the basis of the length of the work
construction duration and annual construction price indexes suitable to types
of construction works.
2. For small-sized works only
requiring the formulation of econo-technical reports, the total investment is
the work cost estimates.
3. For projects with many works,
investors may determine the total cost estimates of the projects to serve the
project management. The total cost estimates of projects are determined by way
of aggregating all estimates of works under the projects.
Article
10.- Verification and approval of work cost estimates
1. Investors shall organize the
verification of work cost estimates before approval. The verification covers:
a/ Examination of the
consistency of the key estimated volume with the designed volume;
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c/ Determination of value of
work cost estimates.
2. If investors have no
conditions or capability to conduct the verification, they may hire
organizations or individuals that satisfy the capability and experience
conditions to verify the work cost estimates. Consultancy organizations and
individuals verifying work cost estimates are answerable to law and investors for
the verification results.
3. Investors approve work cost
estimates after making verification and are answerable to law for the approval
of work cost estimates. Approved work cost estimates serve as a basis for
determining bidding package prices, construction costs and as a basis for
negotiation and conclusion of contracts with, and payment to, contractors in
case of appointment of contractors.
4. Works or work items financed
by state budget capital must be accompanied with approved designs and cost
estimates when their construction starts.
Article
11.- Adjustment of work cost estimates
1. Work cost estimates are
adjusted in the following cases:
a/ The cases provided for in
Clause 1, Article 7 of this Decree;
b/ Cases the alteration or supplementation
of designs, which does not contravene the base design, is permitted or the
structure of expenses in the cost estimate changes but does not exceed the
approved work cost estimate, including reserve expenses.
2. Investors organize the
verification and approval of adjusted work cost estimates.
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CONSTRUCTION NORM AND
WORK CONSTRUCTION PRICES
Article
12.- Construction norms
1. The construction norms
include econo-technical norms and percentage norms.
2. The econo-technical norms
serve as a basis for formulation of work construction unit prices, general
construction prices.
3. The percentage norms are used
for determination of costs of some types of job, expenses in construction
investment, including construction investment consultancy, supporting works,
site preparation, general expenses, pre-calculated taxable incomes and a number
of other jobs and expenses.
Article
13.- Formulation and management of construction norms
1. The Construction Ministry
shall guide the methods of formulating construction norms, establishes and
promulgates construction norms.
2. Based on the methods of
formulating the construction norms as provided for in Clause 1 of this Article,
ministries and provincial-level Peoples Committees shall organize the
establishment and promulgation of construction norms for particular works and
jobs of their respective branches or localities.
3. For construction activities
already included in the system of promulgated construction norms which are,
however, not suitable to construction methods and conditions or technical
requirements of the works, investors, contractors and consultancy organizations
shall adjust such norms properly for application to the works.
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5. Investors may hire
consultancy qualified and experienced organizations to guide, formulate or
adjust the construction norms defined in Clauses 3 and 4 of this Article. The
consultancy organizations shall bear responsibility for the rationality and
accuracy of these construction norms.
6. The application of new
construction norms defined in Clause 4 of this Article to the formulation of
unit prices for payment to works financed by state budget capital must be
agreed upon by competent state management agencies.
Article
14.- System of work construction prices
1. The work construction price
system covers work construction unit prices and general construction prices. A
work construction unit price is formulated for a specific work. The general
construction price is synthesized from work construction unit prices.
2. The work construction price
system is used for determination of construction expenses in the total
investment and work cost estimates.
Article
15.- Formulation of work construction unit prices
1. The work construction unit
prices are formulated on the basis of econo-technical norms and the following
expenses:
a/ The prices of construction
materials determined as suitable to standards, categories and quality of
materials used for specific construction works. The construction materials
prices are determined on the basis of the market prices notified by supplying
organizations of producers, suppliers, or the prices applicable to other works
of similar standards and quality. The prices of materials transported to
construction sites are calculated by the method of formulating work
construction unit prices;
b/ The prices of construction
labor are determined according to the popular labor market price in each region
or province and according to branch or occupation. The construction labor
prices are calculated on the basis of the minimum wage level promulgated by
competent state agencies; capital sources and payment capability of investors
and other requirements;
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2. For construction works
financed by ODA capital, employing foreign laborers and using imported supplies,
materials and construction equipment, and subject to other particular
requirements, the construction unit prices are formulated with addition of
expenses under practical and particular conditions of the works.
Article
16.- Management of work construction prices
1. Investors base themselves on
the method of formulating the work construction unit prices, technical
requirements and specific construction measures of works to organize the
formulation of work construction unit prices and general construction prices
for use as bases for determination of the total investment and work
construction cost estimates in order to manage the work construction investment
expenditures.
2. Work construction investors
may hire qualified and experienced consultancy organizations or individuals to
perform jobs or part of jobs related to the formulation of work construction
prices. The consultancy organizations and individuals shall bear responsibility
before investors and law for the reasonability and accuracy of work construction
prices they have formulated.
3. Provincial-level Peoples
Committee shall base themselves on the requirements of work construction
investment expenditure management to guide the formulation and management of
construction prices for construction works in their localities.
Article
17.- Construction price indexes
1. The construction price
indexes are indicators of fluctuation of work construction prices in a given
period and serve as a basis for the determination of the total investment and the
management of work construction investment expenditures. The construction price
indexes are determined according to types of works, regions and promulgated by
each time.
2. The Construction Ministry
shall promulgate the construction price indexes and methods of formulating the
construction price indexes. Construction investment consultancy organizations
fully meeting the capability conditions shall determine and promulgate
construction price indexes for application reference.
Article
18.- Consultancy on construction investment expenditure management
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2. An organization providing
consultancy on construction investment expenditure management must have at
least three persons possessing the certificate of construction valuation
engineer. Organizations providing consultancy on management of work
construction expenditures are classified into two grades as follows:
a/ Grade 1: Having at least 5
grade-1 construction valuation engineers;
b/ Grade 2: Having at least 3
grade 2- construction valuation engineers or one grade-1 construction valuation
engineer.
3. Individuals independently
providing consultancy on management of construction investment expenditures
must possess certificates of construction valuation engineer.
4. Organizations and individuals
providing consultancy on management of construction investment expenditures can
only provide consultancy within their prescribed operation scopes and bear
responsibility before law and investors for their consultancy activities.
5. The Construction Ministry
defines the scopes of operation of individuals and organizations providing
consultancy on management of construction investment expenditures and grades of
construction valuation engineers, guides the training, the grant and management
of certificates of construction valuation engineers.
Chapter V
CONTRACTS IN WORK
CONSTRUCTION ACTIVITIES
Article
19.- Contracts in construction activities
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2. Construction contracts cover
the following principal contents: jobs and tasks to be performed; types of
guarantee; quality and other technical requirements of jobs; implementation
duration and progress; contractual prices and payment modes; pre-acceptance
test and hand-over conditions; warranty duration; liability for contractual
breaches; contractual adjustment; other agreements according to types of
contract; languages used in contracts.
3. Construction contracts shall
be concluded only when the principals complete the selection of contractors
according to regulations and the contracting parties have concluded the process
of negotiations on contracts.
4. The construction contracts
include the following major types:
a/ The consultancy contract
means a construction contract for the performance of one, several or all
consultancy jobs in construction activities;
b/ The equipment and material
supply contract means a construction contract for supply of materials,
technological equipment for a work construction investment project;
c/ The construction contract
means a construction contract for the execution of construction, equipment
installation for work, work items or construction parts according to work
construction designs;
d/ The engineering-provision-construction
contract (the EPC contract) means a construction contract for the performance
of all jobs from designing, supply of materials and equipment to construction
of works, work items;
e/ The turn-key contract means a
construction contract for the package performance of all jobs: project
formulation; designing; supply of materials and equipment; work construction.
Article
20.- Construction contract dossiers
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2. The documents accompanying a
construction contract constitute an integral part of the contract. Depending on
the scale and nature of jobs, the documents accompanying the construction
contracts comprise all or some of the following documents:
a/ Notice on contract winning or
contractor appointment document;
b/ Contractual conditions (
exclusive and common conditions of the contract);
c/ The contractors proposals;
d/ Technical instructions,
reference conditions;
e/ Design drawings;
f/ Written amendments and
supplements;
g/ Contract performance
security, down-payment guarantee and other guarantees, if any;
h/ Other relevant documents.
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Article
21.- Construction contract prices
A construction contract price is
an amount of money paid by a principal to a contractor for the performance of a
work volume under the progress, quality and other requirements provided in the
construction contract. Depending on the characteristics and nature of
construction works, the contracting parties shall agree on the construction
contract prices in one of the following form:
1. The package contract price:
a/ The package contract price
means a contract price, which remains unchanged throughout the course of
contract performance, excluding cases of permitted adjustment provided for in
the contract, if any;
b/ The package contract price is
applied to the following cases:
Works or bidding packages with
work volumes, quality or implementation duration being clearly identified or in
a number of cases with work volume being unidentifiable but the contractors
have full capability, experience and documents for calculation and
determination of the package prices and accept risks related to the
determination of the package prices.
Bidding packages or consultancy
jobs are ordinary and simple, for which the contract prices are determined in
percentages of the value of works or work volumes.
2. Contract prices based on
fixed unit prices:
a/ The fixed unit price-based
contract price is a contract price determined on the basis of temporarily
calculated work volume and the unit price of each contractual job is fixed and
remains unchanged throughout the course of contract performance, except cases
of permitted adjustment provided for in contracts, if any;
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c/ The fixed unit prices remain
unchanged throughout the course of contract performance, except for cases of
permitted adjustment clearly stated in the construction contracts.
3. Contract prices based on
adjusted prices:
a/ The adjusted price-based
contract price is a contract price, where work volume and unit price for
contractual jobs are allowed for adjustment in cases provided for in the
contract;
b/ The adjusted price-based
contract price applies to works or bidding packages, which, at the time of
concluding the contract, have no conditions for accurate determination of work
volumes to be performed or expenses for determination of unit prices for
performance of jobs;
c/ The adjusted prices will be
adjusted when all conditions for determination of work volume and execution
unit prices prescribed in the contracts are fully met.
4. The combined contract price
is a contract price determined in the forms specified in Clauses 1, 2 and 3 of
this Article. The combined contract price applies to large-sized works or
bidding packages with complicated techniques and prolonged implementation
duration. The principal and the contractor base on types of contractual jobs to
reach agreement on, and determine types of jobs to which the package contract
price, the fixed unit price- based contract price or the adjusted price-based
contract price is applied.
Article
22.- Adjustment of unit prices in construction contracts
The adjustment of unit prices in
construction contracts must be stated in such contracts and made in the
following cases:
1. Upon conclusion of contracts,
temporarily calculated unit prices were used for jobs or work volumes for which
the principal and the contractor, at the time of contract conclusion, had not
yet acquired full conditions for accurate determination of the unit prices and
agreed to adjust them when conditions permit.
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3. The unit prices which the
investor and contractor agreed to consider and readjust after given durations
as from the time the contracts are performed and which are clearly stated in
the contracts.
4. When the prices of fuel,
supplies and equipment stated in the contracts greatly fluctuate, directly
affecting the contract performance or when the state changes relevant policies,
which must be reported to competent persons for consideration and decision.
5. When there appear force
majeure circumstances provided for in the contracts.
Article
23.- Adjustment of construction contract prices
1. The construction contract prices
are adjusted only in the following cases:
a/ Addition of jobs not
specified in the signed contracts;
b/ It is so provided for in
Article 22 of this Decree;
c/ There appear price
fluctuations prescribed in the contracts. The grounds for price fluctuation
calculation are determined within 28 days before the contractor submits the
payment dossiers.
2. Within the bidding package
prices stated in the approved bidding plans, the adjustment of construction
contract prices must be clearly stated in the construction contracts by the
principal and the contractor.
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4. Where the adjusted
construction contract price exceeds the price of a bidding package stated in
the approved bidding plan, investors shall report thereon to persons competent
to consent before approving the adjusted contractual prices.
5. The adjustment of
construction contract prices of a project must not exceed the total investment
in the project already approved by competent authorities.
Article
24.- Advance of capital for performance of construction contracts
1. The advance of work
construction investment capital must be stipulated in construction contracts
and effected immediately after the contracts take effect. The advance levels of
work construction investment capital are provided as follows:
a/ For consultancy contracts,
the minimum capital advance level is 25% of the contractual price;
b/ For construction contracts,
the minimum capital advance level is 10% of the contractual price, for
contracts valued at over VND 50 billion; 15%, for contracts valued at between
VND 10 billion and 50 billion, and 20%, for contracts valued at below VND 10
billion.
c/ For materials and equipment
supply contract, the advance level is not lower than 10% of the contractual
price, depending on the contractual values;
d/ For EPC contracts, the
advance of capital for purchase of equipment is based on the supply progress
stated in the contracts; other jobs such as engineering, the elaborated minimum
advance level is 15% of the value of such contractual jobs.
2. The advance of capital for
ground clearance is made under the ground clearance plans.
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Article
25.- Construction contract payment
1. The contractual payment must
accord the types, prices and terms of contracts concluded by the contracting
parties. The number of payments, the payment period and payment conditions must
be clearly stated in the contracts.
2. For package contract prices:
the payment is made in percentage (%) of the contractual price or prices of
completed works, work items corresponding to the payment periods stated in the
contracts after the payment dossiers are examined and certified by investors.
The contractor will be fully paid with prices of the contracts signed with the
principal and adjusted money amounts (if any) after the completion of the
contracts and the pre-acceptance test and hand-over of works.
3. For fixed unit price-based
contract prices: the payment is made on the basis of the completed work volume
(including arising volume, if any) tested and accepted in the payment periods
and the unit prices corresponding to such works stated in contracts or contract
annexes.
4. For adjusted price-based
contract prices: the payment is made on the basis of the completed work volume
(including arising volume, if any) tested and accepted in the payment periods
and unit prices already adjusted under the contracts. Where upon the mature of
payment periods, there still lack conditions for adjustment of unit prices, the
unit prices temporarily calculated when the contracts were signed will be used
for making the payment and the payment value will be adjusted upon the
availability of unit prices adjusted under the contractual provisions.
5. Where the combined
contractual price is applied as provided for in Clause 4, Article 21 of this
Decree, the payment shall correspondingly comply with the provisions of Clauses
2, 3 and 4 of this Article.
6. The advance capital is
recovered gradually through payments. The recovery of advance capital starts
immediately after the first payment and concludes when the paid work volume
reaches 80% of the contract value. For the ground clearance, the recovery of
advance capital will conclude after the completion of the ground clearance.
7. Within 10 working days after
the contractor submits the valid payment dossiers, investors shall make payment
for the performed work volume to the contractor. For construction works
financed with state budget capital, within 3 working days after the receipt of
complete and valid payment dossiers of the contractor, the investors must
complete all procedures and transfer the payment requests to capital-allocating
or -lending agencies. In the year of construction completion or the year of
work commissioning, investors shall make payments to contractors for the
completed work volume minus the money amounts retained for work warranty
according to regulations.
Article
26.- Construction contract payment dossiers
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a/ The written record on
acceptance of the work volume performed in the payment period with
certifications of representatives of the contractor, the principal and the
supervision consultant, if any;
b/ The written certification of
the volume increase or decrease over the contract with certification of
representatives of the contractor, the principal and the supervision
consultant, if any;
c/ The list of proposed payments
based on the completed work volume, which has been certified, and the unit
price stated in the contract;
d/ The contractors payment
proposal, clearly stating the completed work volume and completed value, the
increase (decrease) value against the contract, the advanced value, the value
proposed for payment in the period.
2. For cases of contractual
payment at package contract prices: The written record certifying the volume at
Point a, Clause 1 of this Article, means the certification of completion of
works, work items, construction jobs suitable to designs (certification of
detailed completed volume is not required).
Article
27.- Unit prices of work volume arising outside construction contracts
1. The work volumes arising
outside a construction contract include:
a/ The work volume added to the
prescribed work volume, for contracts to which the mode of package contract
price is applied;
b/ The work volume without unit
price or the work volume with unit price, which is arising, added volume, for
contracts to which the mode of fixed unit price- or adjusted price-based
contract price prescribed in Clauses 2 and 3, Article 21 of this Decree, is
applied.
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3. For arising work volume
larger than 20% of the corresponding work volume stated in the contract or
arising work volume without contract unit price, the contractor and the
principal shall agree to determine it according to the principles specified in
the contract regarding the unit prices of arising work volumes.
4. For the added work volume
outside the work volume prescribed by the contract to which the mode of package
contract price is applied, the additional value will be included in cost
estimate. The principal and the contractor shall negotiate and agree to sign a
contract on addition of this arising value.
5. Investors may approve unit
prices for the arising work volumes, make payments for arising volumes and take
responsibility for such approval and payments. For works financed by state
budget capital, investors shall report thereon to investment deciders before
approving the unit prices of the arising work volumes and making payments for
the arising volumes.
Article
28.- Construction work insurance and work warranty
1. The insured objects, insurance
sums, insurance duration and insurance liabilities of the principal and the
contractor must be clearly stated in construction contracts.
2. Insurance for construction
works and assets of the principal will be purchased by the principal. Where
this insurance premium has been already included in the contract-winning price,
the contractor shall buy the insurance.
3. The contractor shall buy
necessary insurances to secure his/her activities.
4. The principal and the
contractor shall agree on and provide for in the contract the warranty
conditions and duration and the parties liabilities for construction work
warranty as well as the money amounts retained for performance of work warranty
obligations. If agreed by the principal, the contractor may pay work warranty
guarantee instead of the money amounts to be retained by the principal for work
warranty.
Article
29.- Rewards, fines and settlement of contractual disputes
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2. The reward level must not
exceed 12% of the value of the over-fulfilled contractual portion; the fine
level must not exceed 12% of the value of the breached contractual portion.
3. Disputes between contracting
parties must be settled through negotiation and conciliation between the
parties or settled by arbitrators or courts according to provisions of law.
Article
30.- Construction contract settlement
1. The principal and the
contractor shall settle their construction contract within 30 days after the
contractor has fulfilled contractual obligations (except for the work warranty
obligation according to regulations) and proposed the contract settlement.
2. The contractor shall make the
contract settlement and send it to the principal. The contract settlement must
clearly determine the value of the signed contract, the value already paid, the
value to be paid and other obligations to be performed by the principal under
the contractual provisions. The principal shall examine and make settlement
with the contractor and take responsibility for the contractual value already
settled.
3. Immediately after fulfilling
the work warranty obligations under provisions of the signed contract, the
principal (or investor) shall repay the money amounts retained for work
warranty (if any) to the contractor and settle the contract, terminating all
obligations between the contracting parties.
Chapter VI
PAYMENT, SETTLEMENT OF
WORK CONSTRUCTION INVESTMENT CAPITAL
Article
31.- Payment of work construction investment capital
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2. Investors (or their lawful
representatives) bear responsibility before law for the value of their payment
proposals made to the capital-allocating or -lending agencies. In the course of
making construction investment capital payments, if detecting errors or
irrationalities in the value of payment proposals of investors (or their lawful
representatives), the investment capital-allocating or -lending agencies shall
immediately notify the investors thereof for the latter to make explanations,
supplementation and completion of the dossiers.
3. Investors may demand
compensations or file lawsuits to administrative or economic tribunals to claim
compensations for the damage caused to them due to the delayed payment by
investment capital- allocating or - lending agencies. The investment capital-
allocating or - lending organizations and investors are strictly forbidden to
set illegal regulations on payment of construction investment capital.
Article
32.- Settlement of work construction investment capital
1. The settled investment
capital means the total lawful expenditures invested in the construction
and commissioning of works. Lawful expenditures mean expenditures made within
the scope of approved design and cost estimates, including adjusted or added
portions or the expenditures made in strict accordance with signed contracts
and with provisions of law. For works financed by state budget capital, the
settled investment capital must lie within the total investment limits already
approved by competent authorities.
Depending on the size, nature
and construction duration of works, investors may settle the construction
investment capital for each work item or the entire work immediately after this
work item or work is completed and put into exploitation and use at the request
of investment deciders.
2. Investors shall compile
dossiers on settlement of investment in completed works, work items for
submission to investment deciders for approval, within 12 months for national
important projects and group-A projects, 9 months for group-B projects and 6
months for group-C projects, as from the time the works are completed and put
to use. Six months after the issuance of decisions approving the settlement of
investment capital for completed projects, investors shall settle debts and
settle the projects accounts at investment capital-paying,
-lending or -allocating agencies.
3. For construction works
financed with ODA capital sources, investors shall unified the investment
capital according to the regulations of the State and the regulations of
donors, if any.
Chapter
VII
STATE MANAGEMENT OF WORK
CONSTRUCTION INVESTMENT EXPENDITURES
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The Construction Ministry is the
body responsible for performing the unified state management of work
construction investment expenditures and has the responsibilities:
1. To guide the formulation and
management of construction investment expenditures, including the total
investment, work construction cost estimates, work construction norms and
prices; the methods of measuring and separating work volumes; and the methods
of determination of prices of construction machine and equipment working
shifts.
2. To announce the construction
norms, investment capital ration, construction price indexes, methods of
determining the construction price indexes; to guide contracts on work
construction and other contents defined in this Decree.
3. To inspect and examine the
implementation of provisions on management of work construction investment
expenditures.
Article
34.- The Finance Ministry
1. To guide the payment and
settlement of work construction investment capital.
2. To guide and promulgate
expenditures on consultancy insurance, construction work insurance.
3. To inspect and examine the
settlement and final settlement of state budget-financed projects.
Article 35.-
Ministries and provincial-level Peoples Committees
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2. Provincial-level Peoples
Committees guide the setting and management of work construction prices in
their respective provinces or cities; inspect the implementation of provisions
on management of work construction investment expenditures in their localities.
Chapter
VIII
IMPLEMENTATION PROVISIONS
Article
36.- Transitional handling
1. Work construction investment
projects, which have been approved before the effective date of this Decree but
not yet implemented or are being implemented, comply with the provisions on
management of construction investment expenditures of the Governments Decree
16/2005/ND-CP of February 7, 2005, on management of work construction
investment projects, Decree 112/2006/ND-CP of September 29, 2006, amending and
supplementing a number of articles of Decree 16/2005/ND-CP on work construction
investment projects, and other relevant legal documents.
In case of necessity to adjust
the total investment under the provisions of this Decree, investment deciders
shall consider and decide on the adjustment and ensure the non-interruption of
the implementation of work construction investment projects.
2. Work construction investment
projects, which have been formulated and appraised but not yet approved before
the effective date of this Decree, comply with the provisions of this Decree.
3. Organizations and individuals
performing the jobs of consultancy on management of work construction
investment expenditures may carry on their activities until December 31, 2008.
As from January 1, 2009, these organizations and individuals shall fully
satisfy the conditions prescribed in this Decree if they continue providing
consultancy on management of work construction investment expenditures.
Article
37.- Implementation effect
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Article
38.- Organization of implementation
1. Ministers, heads of
ministerial-level agencies, heads of government-attached agencies, presidents
of provincial/municipal Peoples Committees, and relevant organizations and
individuals shall implement this Decree.
2. This Decree replaces the
provisions on management of work construction investment project expenditures,
on contracts in construction activities of the Governments Decree 16/2005/ND-CP
of February 7, 2005, on management of work construction investment projects,
and Decree 112/2006/ND-CP of September 29, 2006, amending and supplementing a
number of articles of Decree 16/2005/ND-CP of February 7, 2005, and the
provisions in other legal documents, which are contrary to this Decree.
3. The Construction Ministry
shall assume the prime responsibility for, and coordinate with relevant
ministries and branches in, guiding the implementation of this Decree.
ON BEHALF OF THE
GOVERNMENT
PRIME MINISTER
Nguyen Tan Dung