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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. 07/VBHN-BXD
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Hanoi, August 16, 2023
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DECREE
ELABORATION OF CONSTRUCTION CONTRACTS
Government's Decree No.
37/2015/ND-CP dated April 22, 2015 on elaboration of construction contracts,
which comes into force from June 15, 2015 is amended by:
Government's Decree No.
50/2021/ND-CP dated April 01, 2021 on amendments to some Articles of
Government’s Decree No. 37/2015/ND-CP dated April 22, 2015 on elaboration of
construction contracts, which comes into force from April 01, 2021;
Government’s Decree No.
35/2023/ND-CP dated June 20, 2023 on amendments to some Articles of Decrees in
field of state management of the Ministry of Construction, which comes into
force from June 20, 2023.
Pursuant to the Law on
Government Organization dated December 25, 2001;
Pursuant to the Law on
Construction dated June 18, 2014;
At the request of the
Minister of Construction [1],
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Chapter I
GENERAL PROVISIONS
Article 1. Scope and
regulated entities
1. This Decree elaborates
construction contracts.
2. [2] This Decree
applies to organizations and individuals (hereinafter referred to as
“entities”) involved in formulation and management of the performance of
construction contracts belonging to construction projects funded by public
investment capital, state capital other than state investment capital, and
construction contracts between PPP project enterprises and construction
contractors performing contract packages belonging to investment projects in
the public-private partnership form (hereinafter referred to as “PPP
projects”).
Regarding projects funded
by other capital, entities shall refer to the regulations laid down in this
Decree to formulate and manage construction contracts.”
3. Regarding construction
contracts belonging to projects funded by official development assistance
(ODA), if an international treaty to which Vietnam is a signatory contains regulations
different from those set out in this Decree, the regulations of such
international treaty shall apply.
Article 2. Definition
of terms
In this Decree, the terms
below are construed as follows:
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2. “Party awarding a
contract” (hereinafter referred to as “the awarding party”) means an investor
or the representative of an investor or a general contractor or a head
contractor.
3. “Party receiving a
contract” (hereinafter referred to as “the receiving party”) means a general
contractor or head contractor if the awarding party is an investor; means a
sub-contractor if the awarding party is a general contractor or head
contractor. The receiving party may be a partnership of contractors.
4. “General conditions”
of a construction contract means a document attached to the contract providing
for basics rights, obligations and relationships of parties to the construction
contract.
5. “Specific conditions”
of a construction contract means a document attached to the contract
elaborating or supplementing several regulations of the general conditions of
the construction contract.
6. “Appendix” to a
construction contract means a document attached to the contract so as to
elaborate, clarify, amend or supplement several terms of construction contract.
7. “Working day” in this
Decree means any calendar day except any Sunday, public holiday or Tet holiday
as stipulated by the law.
8. “Technical
instructions” means a collection of technical requirements based on technical
regulations and standards applied to construction works and design of
construction works so as to provide instructions and regulations on materials,
products and equipment used for works of construction packages and tasks of
construction, supervision and commissioning of construction works.
9. “FEED” means a
front-end engineering design that is developed in conformity with international
practice as the basis for development of a detailed design.
10. “Scope of work” is
defined in Clause 1 Article 12 of this Decree.
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12. “Sub-contractor”
means a contractor that signs a construction contract with the head contractor
or general contractor.
13. “Foreign contractor”
means an organization established under foreign law or an individual holding
foreign nationality that is involved in the signing and management of the
performance of a construction contract in Vietnam. A foreign contractor may be
a head contractor, general contractor or sub-contractor.
Article 3. Types of
construction contracts
1. Depending on the
nature and contents of the work, types of construction contracts are as
follows:
a) Construction
consultancy contract (hereinafter referred to as “consultancy contract”) that
is a contract for implementation of one, some or all of the consultancy work in
construction and investment activities;
b) Contract for execution
of construction of works (hereinafter referred to as “execution contract”) that
is a contract for execution of construction of the works, work items or part of
construction work according to the design for construction of the works; and
general contract for execution of construction of works for implementation of
all works of a construction project;
c) [3] Contract
for procurement of materials and equipment that is a contract for procurement
materials and equipment to be installed in construction works according to the
technological design; general contract for procurement of materials and
equipment that is a contract for procurement of materials and equipment for all
works of a construction project;
d) Contract for
engineering and construction of works (Engineering – Construction abbreviated
as EC in English) that is a contract for engineering and construction of works
or work items; general contract for engineering and construction of works that
is a contract for engineering and construction of all works of a construction
project;
dd) [4] Contract for
engineering and procurement of materials and equipment (Engineering –
Procurement abbreviated as EP in English) that is a contract for engineering
and for procurement of materials and equipment to be installed in construction
works according to the technological design; general contract for engineering
and for procurement of materials and equipment that is a contract for
engineering and for procurement of materials and equipment for all works of a
construction project.
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g) [6] Contract for
engineering - procurement of materials and equipment - construction of works
(Engineering - Procurement - Construction abbreviated as EPC in English) that
is a contract for implementation of all work ranging from engineering and
procurement of materials and equipment to construction of works and work items
and test run, commissioning and transfer to the awarding party; EPC general
contract that is a contract for engineering - procurement of materials and
equipment - construction of all works of a construction project.
An EPC contract is
prioritized for a project that is complex, requires high technology and
strictly complies with the uniformity and consistency between the phases ranging
from the design to supply of equipment phase, execution of construction of
works and training in technology transfer. Before making a decision to apply an
EPC contract, the investment decision maker shall assess the requirements
concerning technology, shortening of the duration of the project, the
uniformity between the phases of design and supply of equipment, execution of
construction of works and training in operation and transfer of the works with
a view to satisfying the project's approved objectives and requirements and
ensuring the feasibility of applying the EPC contract type as compared to other
contract types.
h) Turnkey contract that
is a construction contract for implementation of the following work:
formulation of the project, design, supply of technological equipment and
execution of construction of works of a construction project;
i) Contract for supply of
human resources, machinery and equipment for execution that is contract for
supply of engineers and workers (hereinafter collectively referred to as “human
resources”), construction machinery and equipment, and other necessary means in
order to serve the construction of the works, work items, contract packages or
construction work according to the construction design;
l) [7] Simple and
small-scale construction contract that is a construction contract for the
performance of a contract package with a value not exceeding the limit on a
small-scale contract package in accordance with regulations of law on bidding.
The contents of the contractual work are of a simple technical nature and easy
to be conducted.
k) Other types of
construction contracts.
2. Depending on the
contract price, types of construction contracts are as follows:
a) Lump sum contract;
b) Fixed unit price
contract;
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d) Time-based contract;
d1) [8] Cost-plus
fee contract;
d2) [9] Other
construction contracts.
dd) [10] Combined
price contract that is a construction contract using a combination of the
contract prices prescribed in Points a through d2 of this Clause.
3. Depending on the
relationship of the parties involved, types of construction contracts are as
follows:
a) Head contract which is
a construction contract signed between the investor and the head contractor or
general contractor.
b) Sub-contract which is
a construction contract signed between the head contractor or general
contractor and a sub-contractor.
c) Internal fixed rate
contract which is a contract between the awarding party and the
receiving party that is affiliated to an agency or organization.
d) Construction contract
involving foreign elements which is a construction contract signed between a
foreign contractor and a domestic contractor or domestic investor.
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The signing of
construction contracts must adhere to the principles set out in Clause 2
Article 138 of the Law on Construction No. 50/2014/QH13 and the following
principles:
1. At the time of signing
a contract, the receiving party must satisfy all conditions regarding
capacity for practice and operation in accordance with regulations of law on
construction. Regarding partnership contractors, the division of the volume of
work quantity under the partnership agreement must be relevant to the operation
capacity of each member in the partnership. Regarding foreign head contractors,
an undertaking to hire domestic sub-contractor to perform the work under a
contract must be included when such sub-contractors meet the requirements of
the contract package.
2. The investor or their
representative is entitled to sign a contract with one or more head contractors
to perform the work. If the investor signs contracts with multiple head
contractors, the contents of such contracts must ensure consistency and comprehensiveness
during performance of the work under the contracts to meet the schedule and
ensure quality and investment efficiency of the construction project.
3. A general contractor
or head contractor is entitled to sign contracts with one or more sub-contractors
that must be approved by the investor. These sub-contracts must be consistent
and comprehensive with the head contract signed with the investor. The general
contractor or head contractor shall be responsible to the investor for schedule
and quality of the undertaken work including the work performed by the
sub-contractors.
4. The contract signing
price shall not exceed the winning bid price or the result of negotiation of
the construction contract, except for the volume of the extra-contractual work
permitted by the person that has the power to make the investment decision
(hereinafter referred to as “the investment decision maker”).
5. [11] Before
concluding an EPC contract, the parties must agree upon the following main
contents:
a) The scope of work
expected to be performed under the EPC contract;
b) The construction
location, the direction and route of the construction works, their type and
grade; the scale and capacity of and plan for the products to be selected, and
the capacity for exploitation and use of the works;
c) Information concerning
documents, data and figures on natural conditions, engineering geology,
hydro-geology and hydrology of the area where the works are expected to be
built;
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dd) Plans for technology,
engineering, equipment and commerce; origin of equipment and products;
solutions for connecting technology to current technical systems (if any);
e) Plan to connect
technical infrastructure both inside and outside of the works; fire safety
solutions within the scope of the EPC contract package;
g) Construction-related
solutions and primary materials to be used;
h) Requirements
concerning management of quality of the construction works, and testing,
commissioning, warranty and maintenance thereof.
i) Solutions to
architecture, construction site, cross sections and vertical sections of the
works, dimensions and main structure of the construction works within the scope
of the EPC contract package;
k) Lists and levels of
application of technical regulations and standards to be used during design,
supply of equipment and execution of construction of works;
l) Technical instructions
on supplies, equipment and technical services; processes for operating part or
whole of the works within the scope of the EPC contract package;
m) Environmental
protection and fire safety requirements, and other issues;
n) Requirements relating
to procedures for approval; the number of documents and deadlines for
submission thereof to the awarding party;
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p) Responsibilities
delegated to the awarding party and receiving party for electricity and water
supply, information and communications, internal roads and other services
available on site, and for processing of interfaces between contract packages
in the same construction project.
Article 5. Principles
of performing construction contracts
Upon performance of a
construction contract, the parties to the contract must adhere to the
principles set out in Clause 3 Article 138 of the Law on Construction No.
50/2014/QH13.
Article 6. Effect and
legality of construction contracts
1. A construction
contract becomes legally effective if the following conditions are met:
a) Signatories have
sufficient legal capacity;
b) The signing principles
set out in Article 4 hereof are adhered to;
c) The form of the
contract is in writing and the contract is signed by the authorized
representatives of the parties to the contract. If either party to the contract
is an organization, such party must sign and affix seal as prescribed by law.
2. The effective date of
the construction contract is the date on which it is signed (bears a seal, if
any) or another specific date as agreed upon by the parties in the contract and
the awarding party has received a performance security from the receiving party
(if the contract contains provisions on performance security).
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a) The effective
construction contract is the foremost legal basis for the obligations of the
awarding party, the receiving party and relevant parties to perform it;
b) The effective
construction contract is the foremost legal basis for resolution of any dispute
between the parties. If the parties to the contract have yet to agree upon the
method for dispute resolution, the dispute shall be resolved in accordance with
relevant regulations of law;
c) Regulatory bodies and
agencies that control and allocate capital and grant loans, carry out
inspections and audits, other relevant agencies shall, according to the
contents of the legally effective construction contract, exercise their
functions and tasks as prescribed without violating the legitimate rights and
interests of the parties to the contract.
Article 7. Management
of performance of construction contracts
1. Within their rights
and obligations, the parties should formulate a plan and measures for
organization of performance in conformity with the contents of the signed
construction contract to reach the agreements set out in the contract.
2. Depending on the type
of the construction contract, the management of performance of construction
contracts shall include:
a) Management of the
contract performance schedule;
b) Quality management;
c) Management of volume
and price of the contract;
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dd) Management of
adjustment of the contract and other contents of the contract.
3. Both awarding contract
and receiving contract must appoint and notify the other party of its
representative to manage performance of the construction contract. The parties’
representatives must hold full powers to make decisions and be responsible for
their decisions within their powers specified in the contract.
4. All proposals,
requests and feedback from the parties during the management of performance of
the construction contract shall be made in writing. The contents of the written
proposals and requests shall contain the grounds, bases and efficiency (if any)
of such proposals and requests, and the deadline for giving response as agreed
upon in the contract. Upon receipt of a proposal or request from one party, the
other party must give a written response to the approval or disapproval by the
deadline as agreed upon in the contract within seven (07) working days from the
receipt of such proposal or request unless agreed upon by the parties. By the
aforementioned deadline, if the party that receives proposal or request fails
to respond to it without a legitimate reason, thereby causing damage to the
other party, it shall take full responsibility and pay compensation for any
damage (if any).
5. Any proposal or
request from the parties during the management of performance of the
construction contract shall be sent to the correct transaction address or the
address as agreed upon by the parties in the contract.
6. For any matter that is
not prescribed in this Decree, the parties shall rely on relevant regulations
of law for performance.
7.[12] Regarding
an EPC contract:
a) Before procuring
materials and equipment for the EPC contract, the receiving party shall lay
down requirements pertaining to technical specifications, technology and origin
and submit them to the awarding party for approval prior to the procurement if
agreed upon by the parties in the contract. The approval by the awarding party
does not reduce the receiving party’s responsibility for procuring materials
and equipment for the EPC contract. If the parties do not specify any agreement
in the EPC contract, the receiving party shall comply with the approved design
documentation and technical specifications, technology and origin coming with
the materials and technological equipment in the EPC contract.
b) The receiving party
may directly procure or hire a sub-contractor to procure materials and
equipment for the EPC contract.
Chapter II
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Section 1. INFORMATION ABOUT, BASES FOR SIGNING, CONTENTS, DOCUMENTS,
APPLICABLE LAW AND LANGUAGE USED IN CONSTRUCTION CONTRACTS
Article 8. Information
about construction contracts
Information about a
construction contract must be specified in the contract, including:
1. Contract type and
number, name of contract package, project name, construction site and bases for
signing the contract;
2. Transaction name of
the parties to the contract, representatives of the parties, registered
business address or transaction address, tax identification number, business
registration certificate, account number, phone number, fax number, email, time
and location of signing the contract and other relevant information.
3. In the event that the
receiving party is a partnership of contractors, information about the members
of the partnership must be sufficiently specified as prescribed in Clause 2 of
this Article, clearly stating the leading member of the partnership.
Article 9. Bases for
signing construction contracts
1. The bases for signing
a construction contract shall be composed of the requirements pertaining to the
work to be done as agreed upon by the parties, the result of contractor
selection, result of negotiation and completion of the contract and relevant
applicable legal bases.
2. As for an EPC, EC or
EP contract, in addition to the bases specified in Clause 1 of this Article, a
feasibility study report for construction or an approved FEED is also required.
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Article 10. Contents
of construction contracts, construction contract documentation and order of priority
of construction contract documentation
Contents of construction
contracts, construction contract documentation and order of priority of
documents enclosed with a construction contract shall comply with Articles 141
and 142 of the Law on Construction No. 50/2014/QH13.
Article 11. Applicable
law and language used in construction contracts
1. Construction contracts
must apply the legal system of the Socialist Republic of Vietnam and comply and
comply with the regulations laid down in this Decree.
2. The language used in
construction contracts is Vietnamese.
3. As for a construction
contract involving foreign elements, the language used is Vietnamese and a
foreign language as agreed upon by the parties; in case no agreement on this is
reached, English shall be used.
Section 2. CONTENTS AND VOLUME OF WORK, QUALITY REQUIREMENTS AND PERFORMANCE
SCHEDULE
Article 12. Contents
and volume of work specified in construction contracts
1. Contents and volume of
work specified in a construction contract refer to the contents and volume of
work signed by the awarding party and the receiving party within the scope of
the work specified in the contract and clearly agreed upon by the parties in
the contract. The scope of work shall be determined on the basis of the bidding
documents, request for proposals or proposals, minutes of negotiation and
relevant legal documents. Depending on the specific type of the construction
contract, the scope of work shall be determined as follows:
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b) Regarding an execution
contract: supply of building materials, human resources, machinery and
equipment for construction and execution of construction of works according to
the approved design documentation.
c) Regarding a contract
for supply of technological equipment: supply of equipment; instructions on
installation, use, testing, operation, training and technology transfer (if
any) according to the approved design documentation.
d) Regarding an EPC
contract: design, supply of materials and equipment and execution of
construction of works; training, instructions on operation, maintenance and
repair; technology transfer; off-load and on-load testing; other work according
to the approved design documentation.
dd) Regarding a turnkey
contract: setting up of a construction project; design; supply of equipment and
execution of construction of works; training, instructions on operation,
maintenance and repair; technology transfer; off-load and on-load testing;
transfer of works that are ready for operation to the awarding party and other
work according to the approved design documentation.
2. The adjustment of
volume of work specified in contracts shall be made as set out in Article 37 of
this Decree.
Article 13.
Requirements pertaining to quality of product and commissioning and transfer of
products of construction contracts
1. Requirements
pertaining to quality of products of a construction contract:
a) The product quality
must meet the requirements of the contract, comply with and meet the quality
requirements according to regulations of law. The parties to the contract must
agree upon regulations and standards (national standards and regulations), technical
instructions applied to products of the construction contract.
b) Regarding imported
equipment and goods, in addition to the regulations mentioned in Point a of
this Clause, regulations on origin must be applied.
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a) Agreements on the
procedures for commissioning and transfer by the parties to the contract must
conform to regulations of the law on management of quality of construction
works.
b) Work to be
commissioned and transferred; bases for commissioning and transfer; procedures
and time of commissioning and transfer of products that are completed work;
personnel involved in commissioning and transfer; forms used for commissioning
and transfer; regulations on signatories, records and documents on
commissioning and transfer must conform to regulations of law and be agreed
upon by the parties to the contract.
c) Only products
that meet the quality requirements prescribed in Clause 1 of this Article are
commissioned and transferred.
d) As for the work
required to be commissioned before moving on to other work, the receiving party
must notify the awarding party in advance to carry out commissioning in
conformity with regulations of the law on management of quality of construction
works.
dd) As for faulty
products (which fail to meet the requirements of the contract), they must be
remedied or eliminated otherwise. The party at fault must incur all costs in
connection with the repair and re-inspection, and other relevant costs in
connection with the rectification of the fault as well as the contract
performance schedule.
Article 14. Time and
schedule for performing construction contracts
1. The time for
performing a contract begins from its effective date to the date on which the
parties have fulfilled their obligations under the signed contract.
2. The receiving party
shall prepare a detailed schedule for performing the contract and submit it to
the awarding party for approval as a basis for performance.
3. The contract
performance schedule must present the completion milestones and handover of the
work and major products.
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5. Regarding an EP
contract, the schedule for equipment supply must present the milestones for
transfer of equipment, including regulations on quantity and categories of
equipment for each phase of transfer.
6. Regarding an EPC
contract or turn-key contract, in addition to the execution schedule prepared
for each phase, a schedule for each type of work (setting up of the project,
design, supply of equipment and execution of construction) must be prepared.
7. It is encouraged to
accelerate the contract performance schedule on the basis of ensuring quality
of products of the contract. If the acceleration brings more efficiency to the
project, the receiving party may be considered to earn a bonus as agreed in the
contract.
8. Adjustment of the
schedule of the contract shall be made as set out in Article 39 of this Decree.
Section 3. CONTRACT PRICE, ADVANCE PAYMENT, PAYMENT, SETTLEMENT AND
LIQUIDATION OF CONSTRUCTION CONTRACTS
Article 15.
Construction contract price and conditions for application thereof
1. Construction contract
price means an amount which the awarding party undertakes to pay to the
receiving party to perform the work in accordance with the requirements
pertaining to the volume, quality, schedule, payment conditions, contract
advance and other requirements agreed upon in the contract.
2. Costs, taxes and
charges (if any) included or not included in the contract price must be
specified in a construction contract; the adjusted construction contract price
must be relevant to the contract type and form of contract price, and must be
agreed upon by the parties in the contract. As for a construction contract
under which payment in multiple currencies is agreed upon by the parties, the
contract price in proportion to each currency must be specified.
3. Forms of construction
contract prices are as follows:
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b) Price of a fixed unit
price contract is determined on the basis of the fixed unit price of each work
multiplied by the respective volume of work. Fixed unit price is a unit price
that remains unchanged during the performance of the contract, except for force
majeure events.
c) Price of an adjusted
unit price contract is determined on the basis of the unit price adjusted due
to the slippage according to the agreements in the contract and multiplied by
the respective volume of work. The method of adjusting unit price due to the
slippage shall comply with Clauses 3 and 4 Article 38 of this Decree.
d) The time-based
contract price is determined on the basis of remuneration for experts, costs
other than the remuneration and working time (volume) calculated by month,
week, day and hour.
- Remuneration for an
expert is the cost for the expert determined on the basis of the salary rate
applied to the expert and related costs as agreed upon by the parties in the
contract multiplied by the actual working time (on a monthly, weekly, daily and
hourly basis).
- Costs for an expert
other than the remuneration include travel costs, working office and other
reasonable costs.
d1) [13] Cost-plus
fee contract price is the contract price whose value has yet to be determined
at the time of signing the contract, and the parties only agree upon the
administrative costs, general costs and profits since there are insufficient
grounds for determining the scope of work and direct costs to carry out the
work specified in the contract.
The parties shall agree
upon the level of administrative costs, general costs and profits to be
expressed as a ratio (%) or as a specific value on the basis of the actual,
reasonable and valid costs to carry out the work specified in the contract;
The level of the
administrative costs, general costs and profits may be fixed or variable
(increased or decreased within a range or without limits) depending on the
actual level of direct costs agreed upon by the parties in the contract in
order to protect their interests.
dd) Price of a combined
price contract is the contract price that is used in combination with the types
of contract prices mentioned in Points a through d of this Clause in conformity
with the features of each type of work specified in the contract.
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5. Conditions for
application of types of construction contract prices are as follows:
a) Regarding a lump sum
contract:
The price of a lump sum
contract shall be applied to the contract packages which at the time of
contractor selection and negotiation of the contract have satisfied the
conditions for determining the volume and unit price for carrying out the work
in accordance with the requirements of the construction contract or in some
cases where the volume and unit price have yet to be determined (such as EC,
EP, PC, EPC and turnkey contracts) but the parties to the contract have
sufficient capacity and experience to calculate and determine the price of the
lump sum contract.
Upon application of the
price of the lump sum contract, it is required to consider the risk factors in
relation to the contract price such as volume and slippage risks which may be
posed to the price of the contract package or the contract during the
performance of the contract, and each party must assume responsibility for its own
risks.
b) Regarding a fixed unit
price contract:
The price of a fixed unit
price contract shall be applied to the contract packages which at the time of
contractor selection and negotiation of the contract have satisfied the
conditions for determining the volume and unit price for carrying out the work
in accordance with the requirements of the construction contract but the volume
of work has not been accurately determined. In such a case, it is required to
consider the risk factors in relation to the contract price such as slippage
risks which may be posed to the unit price for the contractual work during the
performance of the contract, and each party must assume responsibility for its
own risks. Then, the parties shall estimate the cost contingency for the
slippage and volume risk factors posed to the contract package price and
contract price.
c) Regarding an adjusted
unit price contract: The price of an adjusted unit price contract shall be
applied to the contract packages at the time of contractor selection and
negotiation of the contract when the parties to the contract have yet to
satisfy the conditions for determining the volume, unit price and risk factors
in relation to the contract price such as the slippage risk during the
performance of the contract. Then, the parties shall estimate the cost
contingency for the slippage and volume risk factors which may be posed to the
contract package price and contract price.
d) Price of a time-based
contract is normally applied to certain construction contracts involving
consultancy work in construction and investment activities. A construction
consultancy contract may apply all types of contract prices prescribed in this
Decree.
d1) [14] Regarding a
cost-plus fee contract
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Article 16.
Construction contract performance security
1. Construction contract
performance security means a receiving party adopting one of the methods of
leaving a deposit, depositing funds into escrow accounts or providing security
to secure the fulfillment of its obligations during performance of the
contract; the method of providing security is encouraged.
2. The contract
performance security must be submitted to the awarding party before the
effective date of the contract according to the agreement between the parties
on the value, currency and method of the security; must be submitted using the
form accepted by the awarding party and remain valid until the receiving party
has fulfilled its obligations specified in the contract or after the awarding
party has received the warranty bond with respect to contracts involving the
execution of construction of works and supply of equipment. Regarding construction
consultancy contracts, internal fixed rate contracts or construction contracts
of target programs performed by households, and construction contracts in the
form of self-performance, a contract performance security is not required.
3. If the receiving party
is a partnership contractor, every member must submit a contract performance
security to the awarding party and the level of security must be in proportion
to the value of the contract performed by each member. If the partnership has
agreed that the leading contractor of the partnership shall submit the contract
performance security, such leading contractor shall submit the security to the
awarding party and every member shall submit a contract performance security to
the leading contractor in proportion to the value of the contract performed by
it.
4. The value of the
contract performance security and method of security shall be specified in the
bidding documents or request for proposals. The level of contract performance
security is between 2% and 10% of the construction contract price; if it is
needed to prevent high risks, the value of the contract performance security
may be higher but must not exceed 30% of the contract price and must be
approved by the investment decision maker.
5. The receiving party is
not permitted to reclaim its contract performance security in case of refusal
to perform the contract after its effective date and in case of other
violations set out in the contract.
6. The awarding party
must return the contract performance security to the receiving party after the
latter has fulfilled all of its contractual obligations or has switched to
fulfilling the warranty obligations and the awarding party has received the
warranty security for the contracts involving execution of construction of
works and supply of equipment.
Article 17.
Construction contract payment security
1. Construction contract
payment security means an awarding party taking measures to prove its ability
to fulfill its payment obligations under the construction contract signed with
the receiving party in such forms as approved capital provision plan, bank or
credit institution guarantee, credit agreement or loan agreement with a
financial institution.
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Article 18.
Construction contract advance
1. Construction contract
advance means an interest free amount advanced by the awarding party to the
receiving party to make necessary preparations before carrying out the
contractual work.
2. The contract advance
payment shall be made only after the effective date of the construction
contract. For an execution contract, a land clearance plan must be included as
agreed upon in the contract and at the same time the awarding party has
received the advance payment security (if any) in proportion to the value of
each currency agreed upon by the parties.
3. [15] Level of
advance payment, number of advance payments, date of advance payment and
recovery of advance shall be specified in the invitation to bid, request for
proposals or a draft construction contract dispatched to the receiving party as
foundation for calculation of bid price and proposal price, and agreed
specifically in the contract according to regulations of law in conformity with
contract performance schedule.
4. Contract advance
payment security:
a) For a construction
contract with a contract advance value higher than 01 billion dong, before the
awarding party makes a contract advance payment to the receiving party, the
receiving party must submit to the awarding party an advance payment security
with a value and currency equivalent to the contract advance. Regarding
construction contracts with a contract advance value from 01 billion dong or
less and construction contracts in the form of self-performance including the
contracts performed by residential communities under the target programs,
contract advance payment security is not mandatory.
a1) [16] Regarding
a simple and small-scale construction contract, the investor shall consider and
decide to provide a contract advance payment security which is suitable for the
nature of the contractual work and reduce unnecessary procedures.
b) If the receiving party
is a partnership of contractors, every member must submit a contract advance
payment security with a value equivalent to the advance paid to each member,
except for the case where the members in the partnership agree that the leading
contractor of the partnership submits the contract advance payment security to
the awarding party.
c) The effective period
of the contract advance payment security must be prolonged until the awarding
party has recovered all advances. The value of the contract advance payment
security shall be decreased in proportion to the value of the recovered advance
upon each payment made by the parties.
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a) Regarding a
consultancy contract:
- 15% of the contract
price for a contract worth more than 10 billion dong.
- 20% of the contract
price for a contract worth up to 10 billion dong.
b) For an execution
contract:
- 10% of the contract
price for a contract worth more than 50 billion dong.
- 15% of the contract
price for a contract worth from 10 billion dong to 50 billion dong.
- 20% of the contract
price for a contract worth less than 10 billion dong.
c) For a contract for
supply of technological equipment, an EC, EP, PC or EPC contract, a turnkey
contract or any other construction contract: 10% of the contract price.
d) In the event that the
parties agree upon an advance higher than the minimum advance mentioned in
Points a, b and c of this Clause, the contract value in proportion to the
contract advance exceeding the minimum advance shall not be adjusted in price
from the time of advance payment.
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5a. [18] Regarding a
simple and small-scale construction contract, the awarding party and receiving
party shall consider and agree upon whether to make an advance payment as
requested by the receiving party in a manner that satisfies the requirements of
the contract package and reduces unnecessary procedures.
6. The receiving party
must use the contract advance for intended purposes and objects and in an
effective manner. It is prohibited to make an advance if it is not used for
intended purpose under the signed construction contract or not used at all.
7. In the case of
production of structural components or semi-finished products with a high value
or materials that have to be reserved depending on the season, the receiving
party and awarding party shall agree upon an advance payment plan and the
advances to make sure that the contract is performed on schedule.
Article 19.
Construction contract payment
1. The construction
contract payment shall be conformable with the type of contract, contract price
and the conditions set out in the contract signed by the parties. When the
payment is made under the contract, the parties are not required to sign any
appendix to the contract, except where any work is added to the contract.
2. The parties shall
agree upon the number of payments, stages of payment, date of payment, payment
period, payment documentation and payment conditions.
3. The awarding party
shall fully pay (100% of) the value of each payment to the receiving party
minus the advance and the warranty costs under the contract, unless otherwise
agreed upon by the parties.
4. If the two parties are
incapable of making a payment under the contract during the payment period
(there is no data for price adjustment or there is insufficient time to
determine product quality, etc.), provisional payment may be made. When the
parties are capable of determining the payment value, the awarding party must
make the payment to the receiving party as prescribed in Clause 3 of this
Article.
5. Regarding a lump sum
contract, the payment equals a percentage of the contract price or price of
construction works price, work items and volume of work corresponding to the
payment stage as agreed upon by the parties in the contract. Confirmation of detailed
volume of the work completed is not required when the payment is made.
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7. For a time based
contract, the payment shall be made as follows:
a) Costs paid to experts
shall be determined on the basis of the salary rate applied to the expert and
related costs as agreed upon by the parties in the contract multiplied by the
actual working time commissioned (on a monthly, weekly, daily and hourly
basis).
b) Costs other than
remuneration for experts shall be paid adopting the payment method set forth in
the contract.
8. Regarding a combined
price contract, the payment shall be made corresponding to the regulations on
payment of construction contracts specified in Clauses 5, 6 and 7 of this Article.
9. The payment of the
volume of extra-contractual work for which a unit price has yet to be specified
in the contract shall be made according to the agreements in the contract or
additional agreements on which the parties had reached prior to the performance
and in conformity with relevant regulations of law.
10. The payment period
shall be agreed upon by the parties in the contract in conformity with the
scale and nature of each contract. The payment period shall not exceed 14
working days from the date on which the awarding party receives sufficient and
valid payment documentation according to the agreements in the contract. To be
specific:
a) Within seven (07)
working days from the receipt of the sufficient and valid payment documents of
the receiving party, the awarding party must complete procedures and transfer
the payment request to the bank or the State Treasury in charge of payment.
b) Within seven (07)
working days from the receipt of the sufficient and valid payment documentation
of the awarding party, the bank or the State Treasury in charge of payment
shall fully transfer the value of such payment to the receiving party.
c) Regarding construction
contracts belonging to construction projects funded by ODA or loans from
foreign credit institutions, the payment period shall comply with the
international party. Upon negotiating the payment period, the parties shall
rely on the regulations of the international treaty and investment capital
payment procedures prescribed by law in order to reach an agreement in the
contract.
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Article 20. Construction
contract payment documentation
1. Contract payment
documentation shall be prepared by the receiving party in conformity with each
type of contract, contract price and agreements in the contract. Payment
documentation (including templates) must be clearly specified in the
construction contract and certified by the awarding party. The construction
contract payment documentation is composed of the following main documents:
a) Regarding a lump sum
contract:
- A record on
commissioning of the volume of work completed during the payment stage
certified by the representative of the awarding party or the consultancy (if
any) and representative of the receiving party. This commissioning record
serves as the certification of completion of works or work items and volume of
work in conformity with the scope of work to be performed under the contract
(in conformity with the scope of work to be performed according to the design
regarding an execution contract; in conformity with the consultancy duties to
be performed regarding a consultancy contract) without necessarily certifying
the detailed volume of work completed;
- A sheet showing the
value of the contents of extra-contractual work (if any) with certification by
the representative of the awarding party or the consultancy (if any) and
representative of the receiving party;
- A payment request from
the receiving party specifying the following contents: the value of the volume
of work completed under the contract, the value of the volume of
extra-contractual work (if any), deduction of advances, value requested to be
paid during the period after these items have been offset with certification by
the representatives of the awarding party and the receiving party.
b) Regarding a fixed unit
price contract:
- A record on
commissioning of the actual volume of work completed (increased or reduced as
compared to the volume specified in the contract) during the payment stage
certified by the representative of the awarding party or the consultancy (if
any) and representative of the receiving party;
- A sheet showing the
value of the work for which a unit price has yet to be specified in the
contract (if any), stating the volume and unit price for such work with
certification by the representative of the awarding party or the consultancy
(if any) and representative of the receiving party;
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c) Regarding an adjusted
unit price contract:
- A record on
commissioning of the actual volume of work completed (increased or reduced as
compared to the volume specified in the contract) during the payment stage
certified by the representative of the awarding party or the consultancy (if
any) and representative of the receiving party;
- A sheet showing the
unit price adjusted due to slippage (hereinafter referred to as payment unit
price) according to the agreements in the contract certified by the
representative of the awarding party or the consultancy (if any) and
representative of the receiving party;
- A sheet showing the
value of the work for which a unit price has yet to be specified in the
contract (if any), stating the volume and unit price for such work with
certification by the representative of the awarding party or the representative
of the consultancy (if any) and representative of the receiving party;
- A payment request from
the receiving party specifying the following contents: the value of the volume
of work completed under the contract, the value of the volume of
extra-contractual work (if any), deduction of advances, value requested to be
paid during the period after these items have been offset with certification by
the representatives of the awarding party and the receiving party.
d) Regarding a time-based
contract:
- A record on
commissioning of the actual working time or timesheet (on a monthly, weekly,
daily or hourly basis) corresponding to the results of performance during the
payment stage certified by the representative of the awarding party or the
consultancy (if any) and representative of the receiving party. If during
performance there is extra-contractual work requiring additional experts for
whom remuneration has not been specified in the contract, the parties shall
agree upon the remuneration prior to performance. In such as case, the payment
documentation must contain a sheet showing the value of the contents of
extra-contractual work (if any) to be performed under the contract and be
certified by the representatives of the awarding party or the consultancy (if
any) and the receiving party;
- A payment request from
the receiving party specifying the following contents: the value of the volume
of work completed under the contract, the value of the extra-contractual work
(if any), deduction of advances, value requested to be paid during the period
after these amounts have been offset with certification by the representatives
of the awarding party and the receiving party.
dd) Regarding a
construction contract involving supply of equipment, the volume of the
completed work may be determined based on the invoices, bills of lading,
commissioning record, equipment transfer record and other relevant documents.
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2. Regarding a combined
price contract, the payment documentation for each type of contractual work
shall be prepared in accordance with the corresponding regulations set out in
Clause 1 of this Article.
3. Upon agreeing upon the
contract payment documentation, the parties shall, according to the contract’s
scale and nature and sources of capital for the contract, agree upon the
documents necessarily included in the documentation to become the main documents
specified in Clause 1 of this Article.
4. For a construction
contract funded by ODA or loans from a foreign credit institution, the payment
documentation shall comply with the international party in addition to the main
documents specified in Clause 1 of this Article.
5. The awarding party,
organizations and individuals related to contract payment are prohibited from
laying down the payment documentation requirements that are contrary to the
agreements in the contract and the regulations in this Decree with a view to
prevention of the payment made according to the agreements in the legally
effective contract.
Article 21. Currency
and methods of construction contract payment
1. The currency used for
construction contract payment shall be Vietnamese dong; if a foreign currency
is to be used, the parties shall reach an agreement to use the foreign currency
provided that the agreement is not contrary to regulations of law on foreign
exchange.
2. For a construction
contract involving any work that requires payment to be made in a different
currency, the parties shall clearly agree thereupon in the contract but ensure
that the currency for payment conforms to the requirements set out in the
bidding documents or request for proposals.
3. Payment may be made in
cash, by bank transfer and by any other method as agreed upon by the parties in
accordance with regulations of law and the method used must be specified in the
contract.
Article 22.
Construction contract settlement
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2. The contract settlement
documentation shall be prepared by the receiving party in conformity with each
type of contract and contract price. Contents of the settlement documentation
must be conformable with the agreements in the contract. The following is
required:
a) A record on
commissioning of the completion of all contractual and extra-contractual work.
b) A sheet showing
contract settlement value (hereinafter referred to as “A-B settlement”) in
which the following must be stated: value of work completed under the contract;
value of volume of extra-contractual work (if any), the amount paid or
temporarily paid and remaining value payable by the awarding party to the
receiving party.
c) An as-built dossier,
construction diary for a contract covering execution of construction.
d) Other documents as
agreed upon in the contract.
3.[19] The time
limit for construction contract settlement shall comply with Clause 2 Article
147 of the Law on Construction No. 50/2014/QH13 amended by Point c Clause 64
Article 1 of the Law No. 62/2020/QH14 on amendments to the Law on Construction.
Article 23.
Liquidation of construction contracts [20]
The liquidation of
construction contracts shall comply with Clause 3 Article 147 of the Law on
Construction No. 50/2014/QH13 and Clause 4 Article 147 of the Law on
Construction No. 50/2014/QH13 amended by Point c Clause 64 Article 1 of the Law
No. 62/2020/QH14 on amendments to the Law on Construction.
Section
4. RIGHTS AND OBLIGATIONS OF PARTIES TO CONSTRUCTION CONTRACTS
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1. Rights and obligations
of the parties to a construction contract shall be agreed upon by the parties
in the contract provided that they are not contrary to regulations of law.
2. Either the awarding
party or the receiving party must notify the other party in writing of rights
and responsibilities of representatives for management of contract performance.
When either party changes its representative for management of contract
performance, a written notice must be given to the other party. If the
receiving party changes its representative to manage contract performance or
its key personnel, such change must be approved by the awarding party.
3. If the receiving party
is a Group or Corporation, when performing a construction contract, it may
directly assign work to its member units but must ensure openness, transparency
and suitability for qualifications of each member, and the assignment must be
approved in advance by the awarding party.
4. Depending on each
specific type of construction contract, rights and obligations of the awarding
and receiving parties are also specified in Articles 25 through 34 of this
Decree.
Article 25. Rights and
obligations of parties awarding consultancy contracts
1. Every party awarding a
consultancy contract has the right to:
a) Own and use
consultancy products under the contract.
b) Refuse to commission
consultancy products that fail to satisfy quality requirements under the contract;
c) Inspect quality of the
work carried out by the receiving party without hindrance to its normal
operation.
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2. Every party awarding a
consultancy contract has the obligation to:
a) Provide the receiving
party with information about the work requirements, documents, payment security
and means necessary to perform the work (if any) as agreed upon in the
contract.
b) Ensure the copyright
of any consultancy product having copyright under the contract.
c) Handle propositions of
the receiving party within its power during execution of the contract on
schedule as agreed upon by the parties in the contract.
d) Make full payment to
the receiving party according to the payment schedule agreed upon in the
contract.
dd) Other obligations
prescribed by law.
Article 26. Rights and
obligations of parties receiving consultancy contracts
1. Every party receiving
a consultancy contract has the right to:
a) Request the awarding
party to provide information and documents (if any) relating to the consultancy
duties and working equipment as agreed upon in the contract.
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c) Refuse to perform
unreasonable extra-contractual work and refuse to satisfy the illegal
requirements imposed by the awarding party.
d) Ensure copyright in
accordance with regulations of law (for the consultancy products having
copyright).
dd) Other rights
prescribed by law.
2. Every party receiving
a consultancy contract has the obligation to:
a) Complete the work on
schedule and according to quality requirements as agreed upon in the contract.
b) For an engineering
contract: participate in construction work commissioning together with the
investor in accordance with regulations of the law on management of quality of
construction works, supervise the author and respond to the contents related to
the design documentation at the request of the awarding party.
c) Archive and return to
the awarding party documents and working equipment provided by the awarding
party under the contract after the work is completed (if any).
d) Immediately notify the
awarding party of insufficient information and documents, and working equipment
that fails to satisfy quality requirements to complete the work
dd) Keep confidential
information relating to consultancy services as prescribed in the contract or
the law.
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Article 27. Rights and
obligations of parties awarding execution contracts
1. Every party awarding
an execution contract has the right to:
a) Suspend the execution
of construction of works and request remedy of any consequence if the receiving
party violates regulations on quality of works, occupational safety,
environmental protection and fire safety;
b) Inspect quality of the
work carried out and manufacturing and processing facilities of the receiving
party without hindrance to normal operation of the receiving party;
c) Other rights
prescribed by law.
2. Every party awarding
an execution contract has the obligation to:
a) If the awarding party
is an investor, the construction permit must be obtained as prescribed.
b) Transfer whole or part
of the construction site to the receiving party for management and use in line
with the schedule and agreements specified in the contract.
c) Appoint and notify the
receiving party in writing of key personnel participating in management of
contract performance.
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d) Make full payment to
the receiving party according to the payment schedule agreed upon in the
contract.
e) Organize supervision
of execution of works.
g) Inspect the
implementation of measures to ensure occupational safety, environmental
protection and fire safety by the receiving party.
h) Commission, pay and
settle the contract on schedule as prescribed.
i) In case of hiring an
entity to provide consultancy services, clearly specify duties and rights of
the consultant during management of contract performance and notify the
receiving party thereof.
k) Consider and promptly
grant written approval for the receiving party’s proposals concerning
engineering and construction during execution of construction of works.
l) Other obligations
prescribed by law.
Article 28. Rights and
obligations of parties receiving execution contracts
1. Every party receiving
an execution contract has the right to:
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b) Change the
construction measures after obtaining approval from the awarding party in order
to accelerate the progress and ensure quality, safety and efficiency of the
construction works on the basis of the signed contractual price.
c) Request the awarding
party to pay loan interests due to late payment as agreed upon in the contract;
claim compensation for any damage when the awarding party delays the transfer
of construction site and any other damage caused by the fault of the awarding
party.
d) Other rights
prescribed by law.
2. Every party receiving
an execution contract has the obligation to:
a) Provide human
resources, materials, construction machinery and equipment, other related
material conditions with adequate quantity and type under the contract; make
shop drawings (if the receiving party makes the shop drawings) to perform the
work under the signed contract.
b) Receive and manage the
construction site, preserve the centerline, altitude and boundary markers of
the construction works.
c) Execute the
construction of works according to the design, technical instructions,
regulations and standards in a manner that ensures quality, schedule, safety,
environmental safety and fire safety.
d) Keep a construction
diary.
dd) Test materials and
verify construction equipment and product according to the State regulations on
management of quality of construction works, technical instructions,
construction standards and regulations;
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g) Prepare measures to
organize the execution and as-built dossiers, and participate in work
commissioning.
h) Take responsibility
for quality of construction works as undertaken. Rectify errors of works for
the work performed by the receiving party.
i) Cooperate with other
contractors for joint execution of construction at the construction site.
k) Submit periodic
reports to the awarding party on the execution schedule, human resources and
main equipment for execution of construction of works.
l) Move materials,
machinery, equipment and other assets out of the construction site within a
defined time limit after the works have been commissioned or transferred or the
contract is terminated according to Article 41 hereof, unless otherwise as
agreed upon in the contract.
m) Return the site as
agreed upon in the contract.
n) Keep confidential
information relating to the contract or as prescribed by the law.
o) Other obligations
prescribed by law.
Article 29. Rights and
obligations of parties awarding contracts for supply of technological equipment
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2. Cooperate with the
receiving party during training, technology transfer and provision of
instructions on installation, use and operation.
3. Refuse commissioning
of technological equipment and be entitled not to receive technological
equipment that is inconsistently with the agreements in the contract in terms
of quantity, quality, type and origin.
4. If the awarding party
produces a technological design for the receiving party, the awarding party
must take full responsibility for quality and intellectual property right of
this design.
5. Other rights and
obligations prescribed by law.
Article 30. Rights and
obligations of parties receiving contracts for supply of technological
equipment
1. Transfer technological
equipment to the awarding contract according to the agreements in the contract
in terms of quantity, quality, place, time, method of packaging and storage,
origin and other agreements in the contract.
2. Provide the awarding
party with all necessary information about technological equipment; instructions
on installation, use, operation, storage and maintenance of technological
equipment; provide training to management officers and workers operating the
works (if agreed upon in the contract).
3. Cooperate with the
awarding party in testing technological equipment.
4. In the case of
intellectual property for technological equipment:
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b) If the technological
equipment is manufactured according to the design or figures provided by the
awarding party, the receiving party shall not be responsible for any complaint
related to any violation of intellectual property rights arising from such
technological equipment.
c) Either party shall be
responsible for failure to immediately notify the other party of any complaint
filed by a third party about the intellectual property right for technological
equipment after such party knew or should have known the complaint.
5. Other rights and obligations
prescribed by law.
Article 31. Rights and
obligations of parties awarding EPC contracts
1. Every party awarding
an EPC contract has the right to:
a) Refuse commissioning
of products that fail to satisfy quality requirements under the contract; not
to commission the technological equipment that is inconsistently with the
agreements in the contract in terms of quantity, quality, type and origin and
products that violate the intellectual property right.
b) Inspect the
performance of work by the receiving party under the signed contract without
hindrance to its normal operation.
c) Suspend the
performance of work under the contract and request remedy of any consequence if
it is found that the receiving party performing the work violates the contents
in the signed contract or state regulations.
d) Request the receiving
party to transfer documents relating to products of the contract under the
signed contract.
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e) Other rights
prescribed by law.
2. Every party awarding
an EPC contract has the obligation to:
a) Make full payment to
the receiving party according to the payment schedule agreed upon in the
contract.
b) Appoint and notify the
receiving party in writing of key personnel participating in management of
contract performance.
c) Provide the receiving
party with information, documents and means necessary to perform the work (if
agreed upon in the contract).
d) [21] For an EPC
contract established by selecting an EPC contractor immediately after the
fundamental design is approved: carry out commissioning, appraisal and approval
or request a competent authority to promptly appraise and approve the designs
implemented after the fundamental design has been approved by the investment
decision maker in accordance with regulations of law, excluding the estimated
costs of constructing works or work items covered by the EPC contract.
If the EPC contract is
established by selecting an EPC contractor immediately after the FEED is
approved: carry out commissioning, appraisal and approval or request a
competent authority to promptly appraise and approve the designs implemented
after the FEED has been approved by the investment decision maker in accordance
with regulations of law, excluding the estimated costs of constructing works or
work items covered by the EPC contract.
dd) Apply for a
construction permit as prescribed; transfer a cleared site to the receiving
party according to the contract performance schedule.
e) Supervise the
performance of work under the signed contract; inspect the implementation of
measures to ensure occupational safety, environmental protection and fire
safety as prescribed.
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h) Commission, pay and
settle the contract on schedule as prescribed.
i) Ensure the copyright
of consultancy products under the contract.
k) Provide training to
management officers and workers operating the works.
l) Other obligations
prescribed by law.
Article 32. Rights and
obligations of parties receiving EPC contracts
1. Every party receiving
an EPC contract has the right to:
a) Request the awarding
party to provide information, documents and working equipment (if agreed upon
in the contract) relating to the contractual work under the signed contract.
b) Propose the volume of
extra-contractual work to the awarding party; refuse to perform the
extra-contractual work if the two parties have yet to reach an agreement
thereon or refuse to satisfy the illegal requirements imposed by the awarding
party.
c) Organize and manage performance
of work under the signed contract.
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2. Every party receiving
an EPC contract has the obligation to:
a) Provide adequate human
resources, materials, machinery and other necessary means to perform the work
under the contract.
b) Receive, manage, store
and transfer documents and means provided by the awarding party (if agreed upon
in the contract).
c) Notify the awarding
party of inadequate information and documents and unqualified working equipment
which affect performance of work under the signed contract.
d) Keep confidential
information relating to the contract as agreed upon in the contract or as
prescribed by the law.
dd) Perform work under
the contract in a manner that ensures safety, quality, schedule and other
agreements in the contract.
e) [22] For an EPC
contract established by selecting an EPC contractor immediately after the
fundamental design is approved: produce the designs to be implemented after the
fundamental design has been approved by the investment decision maker when
approving the project in conformity with the approved fundamental design,
excluding the estimated costs of constructing works or work items covered by
the EPC contract.
If the EPC contract is
established by selecting an EPC contractor immediately after the FEED is
approved: produce the designs to be implemented after the FEED has been
approved by the investment decision maker when approving the project in
conformity with the approved FEED, excluding the estimated costs of constructing
works or work items covered by the EPC contract.
g) Organize procurement,
manufacturing and supply of technological equipment in a way that meets the
requirements and schedule mentioned in the contract; select a sub-contractor
(if any) via bidding or direct contracting and request the investor to grant
approval therefor; approve and agree with the investor about contents of the
bidding documents for procurement of technological equipment (if agreed upon in
the contract).
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i) Carry out testing,
adjustment and overall trial operation of the works and transfer the completed
works to the awarding party as agreed upon in the contract and as prescribed by
the applicable law.
k) Ensure that the
products provided by the receiving party do not violate the intellectual
property rights as prescribed by law.
l) Transfer documents
relating to products of the contract to the awarding party under the signed
contract.
m) Other obligations
prescribed by law.
Article 33. Rights and
obligations of parties awarding turnkey contracts
In additions to the
rights and obligations mentioned in Article 31 of this Decree, every party
awarding a turnkey contract also has the obligation to commission the
construction project to be submitted to a competent authority in accordance
with regulations of law on construction and the investment decision maker for
appraisal and approval or for appraisal and approval within power.
Article 34. Rights and
obligations of parties receiving turnkey contracts
In additions to the
rights and obligations mentioned in Article 32 of this Decree, every party receiving
a turnkey contract also has the obligation to set up a construction project,
participate in defending the project together with the awarding party before
the investment decision maker and complete the project as requested by the
awarding party in accordance with agreements in the contract.
Section
5. ADJUSTMENT OF CONSTRUCTION CONTRACTS
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1. The adjustment of a
contract includes adjusting the volume, unit price, contract performance
schedule, contract price and other contents (if any) as agreed upon by the
parties in the contract.
2. [23] A
construction contract shall be only adjusted in the cases specified in Clause 2
Article 143 of the Law on Construction No. 50/2014/QH13 and Clause 3 Article
143 of the Law on Construction No. 50/2014/QH13 amended by Point c Clause 64
Article 1 of the Law No. 62/2020/QH14 on amendments to the Law on Construction.
Where the State changes a policy resulting in a direct effect on performance of
the construction contract, the adjustment of the contract shall only apply to
part of the work affected by such change and be made under the regulations of
the authority promulgating such policy and providing guidelines for
implementation thereof.
Article 36. Principles
of adjusting construction contracts [24]
1. The adjustment of a
construction contract shall only apply during the period of contract
performance including the extended period in accordance with regulations of
law.
2. For contract based on
a fixed unit price or a contract unit price, the adjustment shall be only made
in the cases specified in Points b, c and d Clause 2 Article 143 of the Law on
Construction No. 50/2014/QH13.
3. For a lump sum
contract, the contract shall be only adjusted in terms of the volume of additional
work outside the scope of work under the signed contract (outside the scope of
work to be performed according to the design or requirements in the bidding
documents or request for proposals, for an execution contract and contract for
equipment supply; outside the consultancy duties to be performed, for a
consultancy contract) and in the cases specified in Points b, c and d Clause 2
Article 143 of the Law on Construction No. 50/2014/QH13.
4. If the adjusted
contract price does not exceed the approved contract package price or estimated
cost (including the cost contingency for such contract package), the investor
is entitled to make an adjustment decision; if the approved contract package
price or estimated cost is exceeded, the guidelines for adjusting the contract
price must be approved by the investment decision maker or the Minister of the
line ministry and the Chairman/Chairwoman of the provincial People’s Committee
when assigned to execute an investment project in which investment is decided
by the Prime Minister before the adjustment is made, and adequate capital must
be provided to make payment to the awarding party as agreed upon in the
contract. The adjustment of the estimated cost of construction, estimated cost
of the contract package or contract package price shall be made in accordance
with regulations of law on construction cost management and law on bidding.
Article 37. Adjustment
of volume of work specified in construction contracts
1. The parties to a
contract must specifically agree upon the cases of adjustment of the volume,
scope and procedures for adjusting the volume.
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a) For a lump sum
contract: in the event that there is any reasonable additional work outside the
scope of work under the signed contract (outside the scope of work to be
performed according to the design, for an execution contract and contract for
equipment supply; outside the consultancy duties to be performed, for a
consultancy contract).
In this case, if the
adjustment of the volume does not result in the approved contract package price
being exceeded, the investor and contractor shall consider, agree and sign an
appendix to the contract; if the adjustment results in the approved contract
package price being exceeded, it must be considered and decided by the
investment decision maker; in case of failure to reach an agreement, the volume
of such additional work shall form a new contract package and the selection of
contractor to perform this contract package shall comply with applicable
regulations.
b) For a fixed unit price
contract or an adjusted unit price contract: if the addition of volume of
reasonable work for which a unit price has yet to be specified in the contract
does not result in the approved contract package price being exceeded, the
investor and contractor shall consider, agree and sign an appendix to the
contract; if the addition results in the approved contract package price being
exceeded, it must be considered and decided by the investment decision maker;
the volume of work for which a unit price has been specified in the contract
shall be determined according to the actual volume of the completed work
commissioned (increased or decreased as compared to that specified in the
signed contract).
3. [25] For the
volume of the extra-contractual work for which a unit price or method of
determining the unit price has yet to be set out in the contract, the parties
to the contract shall agree upon the unit price or principles and method of
determining the unit price to perform such work prior to performance.
Article 38. Adjustment
of unit price and construction contract price
1. In a construction
contract, the parties shall specifically agree upon the cases in which the
adjustment of the unit price and construction contract price is permitted;
procedures, scope, method and bases for adjusting the contract price; the
method of adjusting the contract price must be conformable with the type of the
contract price and the nature of work in the construction contract.
2. The adjustment of the
contract unit price shall be made as follows:
a) The adjustment of the
unit price for contract performance shall only apply to the adjusted unit price
contract and time-based contract if the parties so agree in the contract.
b) [26] If the
actual increased or decreased volume of work exceeds 20% of the corresponding
volume of work specified in the contract and results in a change of over 0.25%
of the contract value and over 1% of the unit price for such work or a unit
price for the volume of additional work has yet to be specified in the
contract, the parties shall agree to determine a new unit price according to
the principles agreed upon in the contract with respect to the unit price for
such volume so as to make a payment.
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If the actual decreased
volume of work exceeds 20% of the corresponding volume of work specified in the
contract, the new unit price shall only apply to the entire volume of work
actually completed and commissioned.
c) If the actual
increased or decreased volume of work is less than or equal to 20% of the
corresponding volume of work specified in the contract, the unit price
specified in the contract shall apply, including the adjusted unit price
according to the agreements (if any) in the contract so as to make a payment.
d) The adjustment of the
contract unit price for the volume of work for which at the time of signing the
contract the awarding party and receiving party agree to adjust the unit price
shall be made according to Clause 3 of this Article and guidelines provided by
the Ministry of Construction.
3. Method of adjusting
the construction contract price:
a) [27] The
methods of adjusting the contract price comprise direct offsetting method and
method of applying the formula mentioned in Point b of this Clause. The method
of adjusting the price shall be adopted in conformity with the nature of work,
type of contract price and payment currency and be agreed upon by the parties
in the contract. The price index for adjusting the construction contract price
using the formula in Point b Clause 3 of this Article is the construction price
index.
b) The input database for
adjusting the price must be conformable with contents of the contractual work.
The contract shall specify the use of sources of price information or sources
of price index of competent authorities to adjust the contract price according
to the formula below:
GTT =
GHD x Pn
Where:
- “GTT”: the
payment price in proportion to the volume of completed work commissioned.
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- “Pn”: the
adjustment coefficient (increased or decreased) intended for the payment of the
contract regarding the volume of completed work commissioned during the “n”
period.
4. The Ministry of
Construction shall provide specific guidelines for adjusting construction
contracts.
Article 39. Adjusting
construction contract performance schedule
1. In a construction
contract, the parties shall agree upon the cases in which the adjustment of
schedule is permitted. If the duration of completion is later than the schedule
prepared for the contract, the parties must clearly determine their
responsibilities for any damage caused by the schedule delay.
2. The contract
performance schedule shall be adjusted in the following cases:
a) Under the influence of
an earthquake, storm, flood, tsunami, fire, conflict or another force majeure
event.
b) Any change or
adjustment to the project, scope of work, design or construction measures is
made as requested by the awarding party, thereby affecting the contract
performance schedule;
c) The transfer of the
site is not made in accordance with the agreements in the contract, the
contract has to be suspended due to the fault of the awarding party or the
relevant procedures affect the contract performance schedule through no fault
of the receiving party.
d) The performance of
work is suspended as requested by the competent authority through no fault of
the awarding party.
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Section
6. SUSPENSION, TERMINATION, BONUSES, AND PENALTIES FOR BREACHES OF CONSTRUCTION
CONTRACTS
Article 40. Suspension
of performance of work specified in construction contracts
1. The cases in which
suspension of performance of work in the contract is permitted, the right to
suspend performance of work; the suspension procedures, the compensation for
damage caused by the suspension shall be agreed upon by the awarding party and
receiving party in the construction contract.
2. The parties to the
contract are entitled to suspend performance of a construction contract in the
following cases:
a) The awarding party is
entitled to suspend performance of the construction contract if the receiving
party fails to satisfy requirements concerning quality, occupational safety and
schedule under the signed contract.
b) The receiving party is
entitled to suspend performance of the construction contract and extend the
schedule when the awarding party violates agreements on payment such as failure
to fully pay the receiving party the value for the payment stage agreed upon by
the parties after 28 days from the payment deadline as prescribed in Clause 10
Article 19 of this Decree, unless otherwise agreed upon by the parties; no
payment security for the volume of work to be performed is provided.
3. Before either party
suspends performance of contractual work, it shall notify the other party in
advance by giving 28 days’ notice specifying the reasons for suspension; the
awarding party and receiving party shall carry out negotiations to continue to
correctly implement the agreements under the signed contract, except force
majeure events.
If the party suspending
performance of the contract fails to give a notice or the reason for suspension
is found unconformable with the contract, it shall compensate for any damage to
the other party.
Article 41.
Termination of construction contracts
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2. Each party has the
right to terminate the contract without compensating for any damage in the
cases specified in Clauses 7 and 8 of this Article.
3. If the contract
performance has been suspended and the defaulting party fails to rectify its
fault within fifty-six (56) days from the date of suspension as notified
without any legitimate reason unless otherwise agreed upon the by parties, the
suspending party is entitled to terminate the contract.
4. If either party
unilaterally terminates the construction contract through no fault of the other
party, the party unilaterally terminating the contract shall compensate for any
damage to the other party.
5. Before either party
terminates the contract, it shall give a written notice to the other party a
certain period of time in advance as agreed upon in the contract but not less
than twenty-eight (28) days unless otherwise agreed upon by the parties,
specifying the reason for termination. If the party terminating the contract
fails to give a notice resulting in any damage to the other party, the former
shall compensate the latter.
6. The construction
contract shall cease to have effect from the date of termination and the
parties shall complete the contract liquidation procedures within a certain
time limit as agreed upon in the contract but not exceeding fifty-six (56) days
from the date on which the notice of contract termination is given unless
otherwise agreed upon by the parties. Upon the expiry of the said time limit,
if either party fails to follow the liquidation procedures, the other party has
full powers to decide the liquidation.
7. The awarding party is
entitled to terminate the contract in the following cases:
a) The receiving party is
bankrupt or dissolved or transfers the construction contract to another person
or organization without approval by the awarding party.
b) The receiving party
refuses to perform work under the contract or fails to perform work under the
contract for a period of fifty-six (56) straight days, resulting in violation
of the performance schedule as agreed upon in the contract unless otherwise
permitted by the awarding party.
8. The receiving party is
entitled to terminate the contract in the following cases:
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b) The work is suspended
for more than 56 straight days due to the fault of the awarding party unless
otherwise agreed upon by the parties.
c) The awarding party
fails to make the payment to the receiving party after fifty-six (56) days from
the receipt of the sufficient and valid payment documentation unless otherwise
agreed upon by the parties.
9. Within two (02)
working days from the date on which the construction contract is terminated,
the receiving party must move all materials, employees, machinery, equipment
and other assets under its ownership out of the construction site. If upon the
expiry of the said time limit the receiving party has yet to make the move, the
awarding party reserves the right to handle such assets unless otherwise agreed
upon by the parties.
Article 42.
Contractual bonuses and penalties for contractual breaches [28]
Contractual bonuses and
penalties for contractual breaches shall comply with Clause 1 Article 146 of
the Law on Construction No. 50/2014/QH13 and Clause 2 Article 146 of the Law on
Construction No. 50/2014/QH13 amended by Point c Clause 64 Article 1 of the Law
No. 62/2020/QH14 on amendments to the Law on Construction.
Article 43.
Responsibilities for breaches of construction contracts
1. Responsibilities for
breaches of construction contracts are specified in Clauses 3 through 7 Article
146 of the Law on Construction No. 50/2014/QH13, regulations of this Decree and
relevant regulations of law.
2. If the awarding party
fails to make timely and adequate payment as agreed upon in the contract, it
must compensate the receiving party at the interest rate charged on overdue
debts announced by the commercial bank where the receiving opened its payment
account corresponding to the late payment periods. The interest on overdue
debts starts being chargeable from the first date of late payment up until the
awarding party has made a full payment to the receiving party unless otherwise
agreed upon by the parties.
Section 7. COMPLAINTS AND SETTLEMENT OF CONSTRUCTION CONTRACT DISPUTES
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1. For the purposes of
this Decree, any complaint during performance of a construction contract means
that either party detects that the other party has incorrectly fulfilled or
failed to fulfill its obligations under the contract, then the former reserves
the right to request the latter to correctly implement the contents of the
signed contract. In such a case, the detecting party reserves the right to file
a complaint against the other party about this matter.
2. When one party files a
complaint against the other party, it must provide specific grounds and proof
to clarify the complaint.
3. Within fifty-six (56)
days from the date on which an issue arises that the other party has performed
the contract inconsistently with the signed agreements, the detecting party
shall immediately notify the other party thereof and file a complaint about
this matter. Upon the expiry of the said time limit, if neither party files a
complaint, the parties shall perform the contract in accordance with the signed
agreements.
4. Within twenty-eight
(28) days from the receipt of the complaint, the party receiving the complaint
shall provide grounds and proof to prove such complaint is consistent with the
signed contract. If the grounds and proof are unpersuasive and unreasonable,
the intent of the complaint filed by the party receiving the complaint must be
accepted. Upon the expiry of the said time limit, if the party receiving the
complaint does not respond, it shall be deemed to have accepted the complaint
filed by the detecting party.
5. Complaints filed by
either party shall be sent to the correct transaction address or the address as
agreed upon by the parties in the contract. Any complaint which is not handled
by the parties to the contract shall be handled as prescribed in Article 45
hereof.
Article 45. Settlement
of construction contract disputes
1. When settling disputes
during performance of a construction contract, the parties must follow the
principles and procedures prescribed in Clause 8 Article 146 of the Law on
Construction No. 50/2014/QH13.
2. If the parties to the
contract agree that the contract dispute is settled via conciliation by an
organization or one or more expert individuals (hereinafter collectively referred
to as the “dispute settlement committee”), the settlement via this committee
shall be prescribed as follows:
a) The dispute settlement
committee may be specified in the contract at the time of signing or
established after the dispute arises. The number of members of the dispute
settlement committee shall be agreed upon by the parties. Members of the
dispute settlement committee are required to have expertise in the content of
the matters under dispute, experience in dispute settlement and a good knowledge
of regulations of law on construction contracts.
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c) The costs paid to the
dispute resolution committee shall be included in the contract price and
incurred equally by both parties unless otherwise agreed upon by the parties.
3. The prescriptive
period for filing a complaint to binding arbitration or to a court for
settlement of a construction contract shall comply with relevant regulations of
law.
Section
8. OTHER CONTENTS OF CONSTRUCTION CONTRACTS
Article 46. Insurance
and warranty under construction contracts
1. Insurance
a) The investor shall buy
insurance for the works during the construction period regarding the works that
affect community safety or the environment and works applying sophisticated
construction techniques and complicated conditions for execution of
construction. If the insurance premium has been included in the contract price,
the receiving party shall buy construction insurance as regulated.
b) Consultancy
contractors shall buy professional indemnity insurance for construction
consultants regarding construction survey or construction design of Grade II
construction works or higher.
c) The receiving party
shall buy different types of insurance (insurance for employees on the
construction site, equipment insurance, third-party insurance, etc.) necessary
for ensuring its operations according to regulations of law.
2. Warranty
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b) Warranty security may
be provided adopting the method of guarantee or another method agreed upon by the
parties, but priority shall be given to the method of guarantee.
c) The receiving party is
only permitted to return the work warranty security after the warranty period
expires and the investor certifies the completion of warranty.
d) During the warranty
period, the receiving party shall provide the warranty within twenty-one (21)
days from the receipt of the notice of repair from the awarding party; if
within the said time limit the receiving party fails to provide the warranty,
the awarding party is entitled to use the warranty money to hire another entity
to carry out the repair.
Article 47.
Sub-contracts
1. A head contract may
have multiple sub-contracts. When signing a sub-contract, the general
contractor, head contractor or foreign contractor must comply with the
following regulations:
a) Only qualified
sub-contractors are permitted to sign the sub-contract.
b) Any foreign contractor
performing a construction contract within Vietnam’s territory as a head
contractor must hire domestic sub-contractors that meet requirements of the
contract package and is permitted to sign sub-contracts only when domestic
sub-contractors do not meet the requirements of the contract package. Materials
and equipment temporarily imported for re-export must be specified in the
contract on the principle that priority is given to the use of domestic
materials and equipment that meet the requirements of the contract package.
c) Any sub-contractor not
included in the list of sub-contractors attached to the contract must be approved
by the investor.
d) The general contractor
and head contractor must be responsible to the investor for the schedule,
quality, occupational safety, environmental protection, mistakes and work
performed by sub-contractors.
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2. Sub-contractors
appointed by the investor (if any)
a) A sub-contractor
appointed by the investor means a sub-contractor appointed by the investor for
the head contractor or a sub-contractor employed by the general contractor to
act as sub-contractor to perform some parts of the demanding job or when the
head contractor or general contractor fails to meet the requirements concerning
safety, quality and contract performance schedule as requested by the investor.
b) For a construction
contract employing any sub-contractor appointed by the investor, the parties to
the contract shall specifically agree upon the cases in which the investor is
permitted to appoint a sub-contractor.
c) The head contractor or
general contractor is entitled to refuse a sub-contractor appointed by the
investor if the work being performed by the sub-contractor still correctly
complies with the agreements in the contract or there are sufficient grounds
for believing that the sub-contractor appointed by the investor fails to
satisfy the contractual requirements.
3. The investor shall
make payment directly to the sub-contractor on the basis of the payment
proposal of the head contractor or general contractor unless otherwise agreed
upon by the parties.
4. Sub-contractors have
all rights and obligations of the receiving party in accordance with
regulations of this Decree and other relevant regulations of law.
Article 48.
Occupational safety, environmental protection and fire safety
1. Responsibilities of
the parties for occupational safety must be agreed upon in the contract and are
prescribed as follows:
a) The contractor for
execution of construction of works (hereinafter referred to as “the
construction contractor”) must adopt measures to ensure safety of people,
machinery, equipment and works on the construction site, including neighboring
works. If safety measures concern multiple parties, they must be agreed upon by
such parties.
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c) The construction
contractor, the investor and other parties concerned shall regularly inspect
and supervise the implementation of occupational safety regulations work on the
construction site. Construction must be suspended if any violation of
occupational safety regulations is found. Any person who fails to prevent a
violation against the regulations on occupational safety under his/her
management must take legal responsibility for the violation.
d) The construction
contractor shall provide training and instructions on occupational safety
regulations and disseminate them to its employees. As for some work subject to
strict occupational safety requirements, employees performing such work must
obtain a certificate of occupational safety training.
dd) The construction
contractor shall provide adequate personal protective equipment to employees
when employing them to work on the construction site.
e) If an occupational
safety incident occurs, the construction contractor and the parties concerned
shall handle it and notify the occupational safety authority as prescribed by
law, take remedial actions and compensate for any damage caused by its failure
to ensure occupational safety.
2. Responsibilities of
the parties for environmental protection must be agreed upon in the contract
and are prescribed as follows:
a) The construction
contractor must take measures to protect the environment for employees on the
construction site and ambient environment, including measures to control dust
and noise and to clean the construction site; wastewater, solid waste and other
types of waste must be collected and treated according to environmental
technical regulations and standards on environment. For construction works in urban
areas, measures should be in place to cover such works and transport waste to
the designated place.
b) During the transport
of building materials and waste, measures to cover them must be taken to ensure
environmental safety.
c) The construction contractor
and investor shall inspect and supervise the protection of construction
environment and are at the same time subject to inspection and supervision by
the environment authority. If the construction contractor fails to comply with
regulations on environmental protection, the investor and environment authority
reserve the right to suspend construction and request the contractor to
correctly implement environmental protection measures.
d) Any entity whose act
harms the environment during the construction shall take legal responsibility
and compensate for any damage caused by such act.
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Article 49.
Electricity, water and security on construction sites
The parties must agree in
the contract upon their rights and obligations regarding the electricity and
water supply, security on construction sites, and payment of costs thereof.
Article 50. Transport
of technological equipment
1. The receiving party
must notify the awarding party a certain period of time in advance of time of
equipment delivery but not less than twenty-one (21) days.
2. The receiving party
shall assume responsibility for packaging, handling, transporting, warehousing
and storing equipment, unless otherwise agreed upon by the parties.
3. The receiving party
must compensate the awarding party for any damage and costs incurred in
connection with transport of equipment by the receiving party.
Article 51. Risks and
force majeure
1. Risk refers to a danger
which exert negative effects on performance of a construction contract in the
future. In the construction contract, the parties must define their
responsibilities for managing and dealing with risks; their responsibilities
for rectifying consequences in the event of risk.
2. Force majeure refers
to an event of risk which occurs objectively, is unforeseeable before signing a
construction contract and is irremediable when it occurs even though all
necessary measures are taken and all capabilities are employed such as a
natural disaster, environmental emergency, conflict, conflagration and other
irresistible factors.
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4. The parties must agree
to deal with force majeure in the contract such as notice of force majeure;
responsibilities of the parties for force majeure; termination and payment of
the construction contract in the event of force majeure (if any).
Chapter III
IMPLEMENTATION PROVISIONS
Article 52. Entry into
force [29]
1. This Decree comes into
force from June 15, 2015.
2. The Government’s
Decree No. 48/2010/ND-CP dated May 07, 2010 on contracts in construction
activities and Decree No. 207/2013/ND-CP dated December 11, 2013 shall cease to
have effect from the effective date of this Decree.
Article 53. Transition
provisions [30]
1. Any construction
contract which has been signed and is being performed before the effective date
of this Decree shall be performed in accordance with regulations on
construction contracts before the effective date of this Decree.
2. Where any construction
contract which is under negotiation and has not been signed contains any
content unconformable with regulations of this Decree, it must be reported to
the investment decision maker for consideration and decision on the principle
that quality, schedule and efficiency of the construction project are ensured
and the lawful rights and interests of the parties are not infringed.
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Article 54.
Implementation
1. Upon formulation,
appraisal and approval for bidding documents or requests for proposal whose
contents are related to construction contracts; upon negotiation, signing and
management of performance of construction contracts, entities must comply with
the regulations laid down in this Decree.
2. [31] The
Ministry of Construction shall inspect and provide guidance on the implementation
of regulations of law on construction contracts; provide guidance on adjusting
construction contracts, methods of adjusting construction contract prices,
types of construction contracts, forms of construction contracts; on EPC
contract form; simple and small-scale construction contract form and other
necessary contents of this Decree with a view to satisfaction of requirements
for state management of construction works.
3. Organizations and
individuals are encouraged to use the set of model contract conditions of the
International Federation of Consulting Engineers (FIDIC) and model construction
contracts to formulate and perform construction contracts. Upon using model
construction contracts, the parties must consider adjusting their contents to
make them conformable with regulations of Vietnamese law.
4. Ministers, heads of
ministerial agencies, heads of Governmental agencies, Chairmen/Chairwomen of
People’s Committees of provinces and central-affiliated cities, heads
of political organizations, socio-political
organizations, socio-occupational-political organizations, Presidents
of Boards of Directors of Economic Groups and State Corporations and relevant
entities are responsible for the implementation of this Decree./.
CERTIFIED BY
PP. MINISTER
DEPUTY MINISTER
Bui Hong Minh
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[1] * Government's Decree
No. 50/2021/ND-CP on amendments to some Articles of Government’s Decree No.
37/2015/ND-CP dated April 22, 2015 on elaboration of construction contracts,
which comes into force from April 01, 2021, is promulgated pursuant to:
“The Law on Government
Organization dated June 19, 2015;
The Law on Local
Government Organization dated June 19, 2015;
The Law on amendments
to some Articles of Law on Government Organization and Law on Local Government
Organization dated November 22, 2019;
The Construction Law
dated June 18, 2014; the Law on amendments to some Articles of the Construction
Law dated June 17, 2020;
The Law on Public
Investment dated June 13, 2019;
The Law on Public –
Private Partnership Investment dated June 18, 2020;
The Law on Bidding
dated November 26, 2013;
The Law on Management
and Use of State Capital Invested in Manufacturing and Business Activities of
Enterprises dated November, 26 2014;
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At the request of the
Minister of Construction;”
* Government’s Decree No.
35/2023/ND-CP dated June 20, 2023 on amendments to some Articles of Decrees in
field of state management of the Ministry of Construction, which comes into
force from June 20, 2023, is promulgated pursuant to:
“The Law on
Promulgation of Legislative Documents dated June 22, 2015; the Law on
amendments to the Law on Promulgation of Legislative Documents dated June 18,
2020;
The Law on Urban
Planning dated June 17, 2009;
The Law on Judicial
Expertise dated June 20, 2012; the Law on amendments to the Law on
Judicial Expertise dated June 10, 2020;
The Construction Law
dated June 18, 2014; the Law on amendments to some Articles of the Construction
Law dated June 28, 2020;
The Law on Housing
dated November 25, 2014;
The Law on Real Estate
Trading dated November 25, 2014;
The Law on
Architecture dated June 13, 2019;
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The Law on Product and
Goods Quality dated November 21, 2007;
The Law on Investment
dated June 17, 2020;
The Law on Public –
Private Partnership Investment dated June 18, 2020;
The Law on amendments
to some Articles concerning planning of 37 Laws dated November 20, 2018;
The Law on amendments
to certain Articles of the Law on Public Investment, the Law on Public-Private
Partnership Investment, the Law on Investment, the Law on Housing, the Law on
Bidding, the Law on Electricity, the Law on Enterprises, the Law on Special
Excise Duties and the Law on Civil Judgment Enforcement dated January 11, 2022;
At the request of the
Minister of Construction;”
[2] This Clause is amended by Clause 1 Article 1 of Decree No.
50/2021/ND-CP on amendments to some Articles of Government’s Decree No.
37/2015/ND-CP dated April 22, 2015 on elaboration of construction contracts,
which has been effective since April 01, 2021.
[3] This Point is amended by Point a Clause 2 Article 1 of
Decree No. 50/2021/ND-CP on amendments to some Articles of Government’s Decree
No. 37/2015/ND-CP dated April 22, 2015 on elaboration of construction
contracts, which has been effective since April 01, 2021.
[4] This Point is amended
by Point b Clause 2 Article 1 of Decree No. 50/2021/ND-CP on amendments to some
Articles of Government’s Decree No. 37/2015/ND-CP dated April 22, 2015 on
elaboration of construction contracts, which has been effective since April 01,
2021.
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[6] This Point is amended by Point d Clause 2 Article 1 of
Decree No. 50/2021/ND-CP on amendments to some Articles of Government’s Decree
No. 37/2015/ND-CP dated April 22, 2015 on elaboration of construction
contracts, which has been effective since April 01, 2021.
[7] This Point is added by Point dd Clause 2 Article 1 of
Decree No. 50/2021/ND-CP on amendments to some Articles of Government’s Decree
No. 37/2015/ND-CP dated April 22, 2015 on elaboration of construction
contracts, which has been effective since April 01, 2021.
[8] This Point is added by Point e Clause 2 Article 1 of Decree
No. 50/2021/ND-CP on amendments to some Articles of Government’s Decree No.
37/2015/ND-CP dated April 22, 2015 on elaboration of construction contracts,
which has been effective since April 01, 2021.
[9] This Point is added
by Point e Clause 2 Article 1 of Decree No. 50/2021/ND-CP on amendments to some
Articles of Government’s Decree No. 37/2015/ND-CP dated April 22, 2015 on
elaboration of construction contracts, which has been effective since April 01,
2021.
[10] This Point is amended by Point g Clause 2 Article 1 of
Decree No. 50/2021/ND-CP on amendments to some Articles of Government’s Decree
No. 37/2015/ND-CP dated April 22, 2015 on elaboration of construction
contracts, which has been effective since April 01, 2021.
[11] This Clause is added by Clause 3 Article 1 of Decree No.
50/2021/ND-CP on amendments to some Articles of Government’s Decree No.
37/2015/ND-CP dated April 22, 2015 on elaboration of construction contracts,
which has been effective since April 01, 2021.
[12] This Clause is added by Clause 4 Article 1 of Decree No.
50/2021/ND-CP on amendments to some Articles of Government’s Decree No.
37/2015/ND-CP dated April 22, 2015 on elaboration of construction contracts,
which has been effective since April 01, 2021.
[13] This Point is added by Point a Clause 5 Article 1 of
Decree No. 50/2021/ND-CP on amendments to some Articles of Government’s Decree
No. 37/2015/ND-CP dated April 22, 2015 on elaboration of construction
contracts, which has been effective since April 01, 2021.
[14] This Point is added by Point b Clause 5 Article 1 of Decree
No. 50/2021/ND-CP on amendments to some Articles of Government’s Decree No.
37/2015/ND-CP dated April 22, 2015 on elaboration of construction contracts,
which has been effective since April 01, 2021.
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[16] This Point is amended by Point a Clause 6 Article 1 of
Decree No. 50/2021/ND-CP on amendments to some Articles of Government’s Decree
No. 37/2015/ND-CP dated April 22, 2015 on elaboration of construction
contracts, which has been effective since April 01, 2021.
[17] This paragraph is amended by Clause 2 Article 9 of
Government’s Decree No. 35/2023/ND-CP dated June 20, 2023 on amendments to some
Articles of Decrees in field of state management of the Ministry of
Construction, which comes into force from June 20, 2023.
[18] This Clause is added by Point b Clause 6 Article 1 of
Decree No. 50/2021/ND-CP on amendments to some Articles of Government’s Decree
No. 37/2015/ND-CP dated April 22, 2015 on elaboration of construction
contracts, which has been effective since April 01, 2021.
[19] This Clause is amended by Clause 7 Article 1 of Decree No.
50/2021/ND-CP on amendments to some Articles of Government’s Decree No.
37/2015/ND-CP dated April 22, 2015 on elaboration of construction contracts,
which has been effective since April 01, 2021.
[20] This Article is amended by Clause 8 Article 1 of Decree No.
50/2021/ND-CP on amendments to some Articles of Government’s Decree No.
37/2015/ND-CP dated April 22, 2015 on elaboration of construction contracts,
which has been effective since April 01, 2021.
[21] This Point is amended by Clause 9 Article 1 of Decree No.
50/2021/ND-CP on amendments to some Articles of Government’s Decree No.
37/2015/ND-CP dated April 22, 2015 on elaboration of construction contracts,
which has been effective since April 01, 2021.
[22] This Point is amended by Clause 10 Article 1 of Decree No.
50/2021/ND-CP on amendments to some Articles of Government’s Decree No.
37/2015/ND-CP dated April 22, 2015 on elaboration of construction contracts,
which has been effective since April 01, 2021.
[23] This Clause is amended by Clause 11 Article 1 of Decree No.
50/2021/ND-CP on amendments to some Articles of Government’s Decree No.
37/2015/ND-CP dated April 22, 2015 on elaboration of construction contracts,
which has been effective since April 01, 2021.
[24] This Article is amended by Clause 12 Article 1 of Decree
No. 50/2021/ND-CP on amendments to some Articles of Government’s Decree No.
37/2015/ND-CP dated April 22, 2015 on elaboration of construction contracts,
which has been effective since April 01, 2021.
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[26] This Point is amended by Point a Clause 14 Article 1 of
Decree No. 50/2021/ND-CP on amendments to some Articles of Government’s Decree
No. 37/2015/ND-CP dated April 22, 2015 on elaboration of construction
contracts, which has been effective since April 01, 2021.
[27] This Point is amended by Point b Clause 14 Article 1 of
Decree No. 50/2021/ND-CP on amendments to some Articles of Government’s Decree
No. 37/2015/ND-CP dated April 22, 2015 on elaboration of construction
contracts, which has been effective since April 01, 2021.
[28] This Article is amended by Clause 15 Article 1 of Decree
No. 50/2021/ND-CP on amendments to some Articles of Government’s Decree No.
37/2015/ND-CP dated April 22, 2015 on elaboration of construction contracts,
which has been effective since April 01, 2021.
[29] * Article 3
of Decree No. 50/2021/ND-CP on amendments to some Articles of Government’s
Decree No. 37/2015/ND-CP dated April 22, 2015 on elaboration of construction
contracts, which has been effective since April 01, 2021, stipulates that:
“Article 3. Effect
and implementation
1. This Decree comes
into force from the date on which it is signed.
2. Ministers, heads of
ministerial agencies, heads of Governmental agencies, Chairmen/Chairwomen of
People’s Committees of provinces and central-affiliated cities, heads
of political organizations, socio-political
organizations, socio-occupational-political organizations, Presidents
of Boards of Directors of Economic Groups and State Corporations and relevant
entities are responsible for the implementation of this Decree./.
* Article 17 of
Government’s Decree No. 35/2023/ND-CP dated June 20, 2023 on amendments to some
Articles of Decrees in field of state management of the Ministry of Construction,
which comes into force from June 20, 2023, stipulates that:
“Article 17.
Implementation
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2. Ministers, heads of
ministerial agencies, heads of Governmental agencies, Presidents of People’s
Committees of provinces and central-affiliated cities and relevant
organizations and individuals shall be responsible for the implementation of
this Decree./.
[30] * Article 2 of Decree No. 50/2021/ND-CP on amendments to some
Articles of Government’s Decree No. 37/2015/ND-CP dated April 22, 2015 on
elaboration of construction contracts, which has been effective since April 01,
2021, stipulates that:
“Article 2.
Transitional provisions
1. Any construction
contract which has been signed and is being performed before the effective date
of this Decree shall be performed in accordance with regulations on
construction contracts before the effective date of this Decree and contents of
the signed contract.
2. Where any
construction contract which is under negotiation and has not been signed
contains any content unconformable with regulations of this Decree, it must be
reported to the investment decision maker for consideration and decision on the
principle that quality, schedule and efficiency of the construction project are
ensured and the lawful rights and interests of the parties are not infringed;
3. Any content
regarding construction contracts in the approved but unreleased bidding
documents or request for proposals which is unconformable with regulations of
this Decree must be adjusted to make it conformable; if bidding document or
request for proposal has been released, any adjustment to the contents relating
to construction contracts with a view to conformity with regulations of this
Decree must be notified to all bidders that have bought the bidding documents
or request for proposals; if the bid has closed, the regulations set out in
Clause 2 of this Article shall be implemented.
* Clause 6 Article 16 of
Government’s Decree No. 35/2023/ND-CP dated June 20, 2023 on amendments to some
Articles of Decrees in field of state management of the Ministry of
Construction, which comes into force from June 20, 2023, stipulates that:
“6. Transitional
provisions on amendments to Decree No. 37/2015/ND-CP (amended by Decree No.
50/2021/ND-CP)
a) Any construction
contract which has been signed and is being performed before the effective date
of this Decree shall be performed in accordance with regulations on
construction contracts before the effective date of this Decree and contents of
the signed contract.
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c) Any content
regarding construction contracts in the approved but unreleased bidding
documents or request for proposals which is unconformable with regulations of
this Decree must be adjusted to make it conformable; if bidding document or
request for proposal has been released, any adjustment to the contents relating
to construction contracts with a view to conformity with regulations of this
Decree must be notified to all bidders that have bought the bidding documents
or request for proposals; if the bid has closed, the regulations on
construction contracts which are under negotiation and have not been signed
shall be applied.
[31] This Clause is amended by Clause 16 Article 1 of Decree No.
50/2021/ND-CP on amendments to some Articles of Government’s Decree No.
37/2015/ND-CP dated April 22, 2015 on elaboration of construction contracts,
which has been effective since April 01, 2021.