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THE GOVERNMENT
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SOCIALIST REPUBLIC OF VIET NAM
Independence - Freedom - Happiness
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No : 112/2006/ND-CP
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Hanoi, September 29, 2006
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DECREE
AMENDING AND SUPPLEMENTING A NUMBER OF ARTICLES OF DECRRE NO
16/2005/ND-CP ON MANAGEMENT OF INVESTMENT PROJECTS ON THE CONSTRUCTION OF WORKS
THE GOVERNMENT
Pursuant to
the December 25, 2001 Law on Organization of the Government;
Pursuant to the November 26, 2003 Construction Law;
At the proposal of the Construction Minister;
Article 1. To amend and supplement a number of articles of the Government's
Decree No. 16/2005/ND-CP of February 7,2005, on management of investment
projects on the construction of works as follows:
1. To
amend and supplement Clause 1 of Article 3 as follows:
"1. For
projects funded with state budget capital, investors of construction works
shall be decided by investment deciders before construction investment projects
are formulated in accordance with the provisions of the State Budget Law.
a) For
projects in which the investment is decided by the Prime Minister, investors
shall be ones of the following agencies or organizations: ministries,
ministerial-level agencies, government-attached agencies, other central-level
agencies (collectively referred to as ministerial-level agencies), People's
Committees of the provinces or centrally-run cities (collectively referred to
as provincial-level People's Committees) and state enterprises.
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When units
managing and/or using the works are yet identified or fail to meet the
conditions to act as investors, investment deciders shall select other
qualified units to act as investors. When units managing and/or using the works
fail to meet the conditions to act as investors, investment deciders shall
assign the units which will manage and/or use the works the task to norminate
persons to join investors in managing the investment in construction of works
and receive the works for management and use upon their completion."
2. To
amend and supplement Clause 1 of Article 4 as follows:
“1. For
important national projects defined in the National Assembly's Resolution No.
66/2006/QH11, investors shall have to make investment reports
and submit them to the Government for consideration and submission to the
National Assembly for adoption of investment undertakings and permission of
investment. For other projects, investors are not required to make investment
reports.
For group-A
projects not included in branch plannings already approved by competent
authorities, investors shall have to report them to the branchmanaging
ministries for consideration and addition to the plannings according to their
competence or submission to the Prime Minister for approval the planning
addition before formulation of construction investment projects.
The location
and size of construction works must conform with the construction plannings
already approved by competent authorities; if the works are not yet included in
the construction plannings, the approval by provincial-level People's
Committees is required."
3.
To amend and supplement Article 7 as follows:
"
Article 7.- Contents of the basic design of a project
1.
Contents of the basic design of a project shall comprise explanations and
drawings, reflecting designing solutions and serving as a basis for the
determination of total investment amount and for the implementation of
subsequent designing steps.
2.
Explanations on the basic design shall have the following contents:
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b) The
main force-bearing structures; the plan on fire and explosion prevention and
fighting and environmental protection; the technical system and the technical
infrastructure system of the works and points of connection with the technical
infrastructures outside fences;
c) The
description of load and impacts on the works;
d) The
list of applicable rules and standards.
3. The
basic design drawing shall be shown with major dimensions, including:
a) The
drawing of the total ground area, the plan on lines of works, for works to be
constructed in lines;
b) The
drawing of the architectural plan, for works with architectural requirements;
c) The
technological diagram, for works with technological requirements;
d)The
drawing of the main force-bearing structures of the works; the drawing of the
technical system and the technical infrastructure system of the works."
4.
To amend and supplement Article 8 as follows:
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The
dossier of a construction investment project to be submitted for approval shall
comprise:
1. The
report on the project applied for approval, made according to the form in
Appendix 2 to this Decree (not printed herein);
2. The
project documents, including the written explanations and the basic design;
3. The
evaluation documents of the competent authorities;
4. The
written permission of the investment, for imrortant national projects; the
written approval of planning addition, for group-A projects not yet included in
branch plannings."
5.
To amend and supplement Article 9 as follows:
"Article
9.- Competence to evaluate construction investment projects
1. Investment
deciders shall have to organize the evaluation of projects before approval.
Project evaluators shall be professional units of investment deciders. These
professional units shall have to send project dossiers to competent authorities
defined in Clause 6 of this Article for evaluation of basic designs and to
concerned agencies for comments for evaluation of projects.
2. The Prime
Minister shall set up the State Council for Evaluation of Investment Projects
to organize the evaluation of projects the investment in which is decided by
the Prime Minister and of other projects when deeming it necessary.
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a)
Ministerial-level agencies shall organize the evaluation of projects the
investment in which they decide. Project-evaluation organizers shall be professional
units of investment deciders.
b)
Provincial-level People's Committees shall organize the evaluation of projects
the invetsment in which they decide. Provincial/municipal Planning and
Investment Services shall act as organizers of the evaluation of those
projects.
People's
Committees of district or commune level shall organize the evaluation of
projects with investment therein being decided by themselves. The major project
evaluators shall be units attached to investment deciders which have the function
to manage budget plans.
4. For other
projects, investment deciders shall organize the evaluation of projects by
themselves.
5. For
investment projects on construction of particular works, the project evaluation
shall comply with the provisions of the Government's Decr~e No. 71/2005/ND-CP
of June 6, 2005.
6. Competence
to evaluate basic designs:
a) For
important national projects and group-A projects, the evaluation shall be
conducted as follows regardless of their capital sources:
The Industry
Ministry shall organize the evaluation of the basic designs of investment
projects on the building of mines or oil and gas works, power plants,
electricity transmission lines, transformer stations, production of chemicals
or industrial explosives, machine building, metallurgy or specialized
industrial works;
The Agriculture
and Rural Development Ministry shall organize the evaluation of the basic
designs of investment projects on the building of irrigation works and dykes;
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The
Construction Ministry shall organize the evaluation of the basic designs of
investment projects on the building of civil works, industrial works on
building materials, urban technical infrastructures and investment projects on
the building of other works as requested by the Prime Minister.
Particularly
for investment projects on the building of civil works of less than 20 stories
each, their basic designs shall be evaluated by provincial/municipal
Construction Services.
For investment
projects on the building of works of different types, the ministry assuming the
prime responsibility for evaluating their basic designs shall be the one
performing the state management over the work of the type decisive to the
nature and objective of the projects. Such ministry shall be responsible for
gathering written opinions of the specialized worksmanagement ministries and
branches as well as concerned agencies for the evaluation of the basic designs.
b) For group-B
or group-C projects, regardless of their capital sources and except for those
defined at Points c and d of this Clause, the evaluation of their basic designs
is conducted as follows:
Provincial/municipal
Industry Services shall organize the evaluation of the basic designs of
investment projects on the building of mines or oil and gas works, power
plants, electricity transmission lines, transformer stations, production of
chemicals or industrial explosives, machine building, metallurgy, and
specialized industrial works;
Provincial/municipal
Agriculture and Rural Development Services shall organize the evaluation of the
basic designs of investment projects on the building of irrigation works and
dykes;
Provincial/municipal
Transport Services shall organize the evaluation of the basic designs of
investment projects on the building of traffic works;
Provincial/municipal
Construction Services shall organize the evaluation of the basic designs of
investment projects on the building of civil works, industrial works on
building materials and investment projects on the building of other works as
requested by presidents of provincial/municipal People's Committees.
Particularly
for basic designs of investment projects on the building of urban technical
infrastructures, provincial/municipal Construction Services or Traffic and
Public Works Services or Transport Services shall organize the evaluation
thereof in accordance with their functions and tasks defined by
provincial-level People's Committees.
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c) For group-B
or group-C projects managed by the Industry Ministry, the Agriculture and Rural
Development Ministry, the Transport Ministry, the Construction Ministry,
economic groups or state corporations, they shall themselves organize the
evaluation of their basic designs after consulting localities on the
construction plannings and environmental protection.
d) For group-B
or group-C projects on the building of works in lines running through many
localities, the ministries defined at Point a of this Clause shall organize the
evaluation of their basic designs and be responsible for gathering opinions of
the localities where exist the construction works regarding the construction
plannings and environmental protection.
7. The agencies
organizing the evaluation of basic designs of projects shall have to send the
evaluation results to the units assuming the prime responsibility for project
evaluation. The time limit for the evaluation of basic designs shall not exceed
30 working days, for important national projects, 20 working days, for group-A
projects, 15 working days, for group-B projects, and 10 working days, for
group-C projects, counting from the date of receipt of complete and valid
dossiers."
6. To amend
and supplement Article 10 as follows:
“Article 10.-
Contents of evaluation of construction investment projects
1. Contents
of evaluation of construction investment projects by investment deciders:
a) Examining
factors which ensure the projects' efficiency, including the necessity of
investment; the input elements of the projects; the size, capacity,
technologies, duration of, and schedule for, project execution; analyzing the
financial status and socioeconomic efficiency of the projects;
b) Examining
factors which ensure the projects' feasibility, including their compatibility
with plannings; the land and natural resource use demand (if any); the
capability of ground clearance and mobilization of capital to ensure the
projects' schedules; the investors' . managerial experience; the results of the
evaluation of the basic designs; the capability of repaying loan capital; t~e
solutions to fire and explosion prevention and fighting; the factors which may
affect the projects such as defense, security and environment, based on the
written opinions of concerned agencies and relevant provisions of law.
2. Contents
of the evaluation of basic designs by competent authorities:
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b) The
application of rules and standards on construction, environment, fire and
explosion prevention and fighting;
c) The
operational capacity conditions of consultancy organizations, professional
capacity of individuals engaged in formulating basic designs according to
regulations."
7. To amend
and supplement Clauses 1 and 4 of Article 12 as follows:
a) To amend
and supplement Clause 1 as follows:
"1. When
investing in the construction of the following works, investors shall not have
to formulate investment projects but have to make economic and technical
reports on the construction of works and submit them to the investment deciders
for approval:
a) Works for
religious purposes;
b) Works to
be constructed, renovated, repaired or upgraded, each having a total investment
amount of under VND 7 billion, compatible with the socioeconomic development
plannings, branch plannings or construction plannings, except for cases where
investment deciders deem the formulation of construction investment projects
necessary and request it."
b) To amend
and supplement Clause 4 as follows:
"
Investors shall have to organize the evaluation of the construction drawing
designs for investment deciders to approve the economic-technical
reports."
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"1.
Construction investment projects for which investment decisions have been
issued may be adjusted in one of the following cases:
a) They are
affected by natural disasters such as earthquake, typhoon, flood, tsunami;
enemy sabotages or other force majeure events;
b) There
appear factors which may bring about higher benefits to the projects ;
c) The
construction plannings see changes which directly affect the locations, scale,
nature or objectives of the projects."
9. To amend
and supplement Clause 1 of Article 17 as follows:
"1.
Before commencing the construction of works, including works of which the basic
designs have been evaluated by competent authorities, investors must obtain
construction permits, except for the construction of the following works:
a) Works
involving state secrets, works built under urgent orders, make-shift works to
serve the construction of principal works;
b) Works to
be built in lines not running through urban centers but complying with the
approved construction plannings, works under construction investment projects
already approved by competent state agencies;
c) Works to
be built under projects on urban centers, industrial parks or residential
quarters with their 1/500scale detailed construction plannings already
approved by competent state agencies;
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®)
Small-sized technical infrastructure works located in deep-lying or remote
communes;
e) Separate
houses in remote or deep-lying areas outside concentrated population spots;
separate houses in rural population spots for which construction plannings are
not yet approved."
10.
To amend and supplement Clause 3 of Article 18 as follows:
"3. The
design drawing displaying the locations of the level ground, the typical cross
section and elevation and the foundation plan of the work; a plan on the
locations or lines of works; a diagram on the systems of electricity supply and
water drainage and supply and their technical connection points; photos of the
present state (for repair and renovation works for which construction permits
are required).
For works the
basic designs of which have been evaluated by competent authorities, investors
shall submit the results of evaluation of such basic designs instead of the
documents mentioned in this Clause."
11. To
amend and supplement Article 35 as follows:
“Article 35.-
Forms of project management
1. Investment
deciders shall decide on the forms of management of projects according to the
provisions of Clause 2, Article 45 of the Construction Law.
2. When investors
directly manage projects, they may set up project management units to assist
them in assuming the prime responsibility for the management of projects. The
project management units must be capable of organizing the management of the
projects according to the investors' requirements. They may hire consultants to
manage and supervise the performance of several tasks, which they do not have
enough conditions or capabilities to perform, but must obtain the investors'
consent.
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3. When
investors hire consultancy organizations for project management and
administration, such consultancy organizations must have full conditions and
capabilities to· organize project management, suitable to the projects' sizes
and characteristics. The responsibilities and powers of project management
consultancy organizations shall comply with the agreements between the two
parties. Project management consutancy organizations may hire other consultancy
organizations or consultants for project management but must get approval of
the investors and ensure the compliance with contracts signed with the latter.
In case of hiring consultancy organizations for project management, investors
shall still have to use their professional units or designate units to be
primarily responsible for inspecting and monitoring project management
consultants in the performance of contracts. "
12. To
amend and supplement Article 36 as follows:
"Article
36.- Tasks and powers of investors and project management units in cases where
investors set up project management units
1. Investors
shall perform tasks and exercise powers from the stages of project preparation
and execution till the after-test acceptance and hand-over of projects for
operation and use, ensuring the efficiency and feasibility of the projects as
well as the observance of the provisions of law. Investors shall have to set up
project management units to assist them in managing the execution of projects.
The assignment of tasks and delegation of powers to project management units
must be stated in their establishment decisions. Investors shall have to
direct, inspect and take responsibility for the results of performance of tasks
and exercise of powers by project management units.
2. Project
management units shall perform tasks assigned and exercise powers delegated by
investors. Project management units shall take responsibility before investors
and before law for their assigned tasks and delegated powers."
13. To
amend and supplement Article 37 as follows :
"Article
37.- Tasks and powers of investors and project management consultancy
organizations in cases where investors hire project management consultants
1. Investors
shall perform their tasks and exercise their powers from the stages of project
preparation and execution till the after-test acceptance and handover of
projects for operation and use, ensuring the efficiency and feasibility of the
projects as well as the observance of the provisions of law. Investors shall
select the form of and sign contracts with project management consultancy
organizations which meet all capability conditions for organizing project
management in order to assist them in managing the execution of projects.
Investors shall have to inspect and monitor project management consultants in
the performance of contracts.
2. Project
management consultants shall perform their tasks and exercise their powers
according to agreements in contracts between them and investors. Project
management consultanfs----sJ1all also take responsibility before law and
investors for the performance of contractual commitments."
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a) To
amend and supplement Clause 2 as follows:
"2.
The settled investment capital covers all lawful expenses made in the course of
construction investment and putting of the concerned project into operation and
use. Lawful expenses are those made in compliance with the approved designs and
cost estimates, including adjusted and supplemented expenses or expenses made
under signed contracts, in accordance with the provisions of law. For projects
funded with state budget capital, the settled investment capital must not
exceed the total investment capital amount already approved by competent
authorities."
b) To
amend and supplement Clause 5 as follows:
"5.
Investors shall be responsible for compiling investment capital settlement
dossiers for completed projects and submit them to competent persons for
approval within 12 months, for important national projects and group-A
projects, within 9 months, for group-B projects, and 6 months, for group-C
projects, counting from the time the completed works are put into operation and
use. Six months after decisions approving the final settlement of completed
projects are issued, investors shall have to pay debts and finalize accounts of
the projects at the payment and investment capital-lending agencies."
15. To
amend and supplement Clause 1 of Article 46 as follows:
"1.
Depending on the size, nature and implementation time requirements of each
project, investors may sign contract with one or more than one principal
contractor. Each principal contractor may work performance contract with one or
more than one subcontractor but must obtain the investor's approval in the
contract signed with the latter and ensure the compliance with the legal
provisions on bidding."
16. To
replace Appendix 1 on classification of construction investment projects,
promulgated together with the Government's Decree No. 16/2005/ ND-CP of
February 7, 2005, on management of investment projects on construction of
works, with the Appendix on classification of construction investment projects
promulgated together with this Decree.
Article
2. To annul Articles 24, 25, 26, 27, 28 and 29 on
selection of contractors in construction activities in the Government's Decree
No. 16/2005/ND-CP of February 7, 2005, on management of investment projects on
construction of works.
Article 3. Transition handling
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2.
Construction investment projects which have not yet been approved shall comply
with the provisions of this Decree.
Article 4. Implementation
provisions
This
Decree shall take effect 15 days after its publication in "CONG BAO”.
The
Finance Ministry shall have to guide the insurance in construction investment
activities. The Construction Ministry shall have to set up a system of
information on capabilities and operations of construction consultancy
organizations and individuals as well as construction contractors nationwide,
including foreign contractors involved in contruction in Vietnam.
Ministers,
heads of ministerial-level agencies, heads of government-attached agencies,
presidents of provincial/municipal People's Committees, chairmen of managing
boards of state enterprises, and concerned organizations shall have to
implement this Decree./.
ON
BEHALF OF THE GOVERNMENT
PRIME MINISTER
Nguyen Tan Dung
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