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THE PRIME
MINISTER
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SOCIALIST
REPUBLIC OF VIETNAM Independence
- Freedom - Happiness
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No.
131/2007/QD-TTg
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Ha
Noi, August 09th, 2007
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DECISION
PROMULGATING THE
REGULATION ON HIRING OF FOREIGN CONSULTANTS IN CONSTRUCTION ACTIVITIES IN
VIETNAM
THE PRIME MINISTER
DECIDES:
Article 1.- To promulgate together
with this Decision the Regulation on hiring of foreign consultants in
construction activities in Vietnam.
Article 2.- This Decision takes effect 15
days after its publication in “CONG BAO.” To annul previous regulations
contrary to the Regulation promulgated together with this Decision.
Article 3.- Ministers, heads of
ministerial-level agencies, heads of government-attached agencies, presidents
of provincial/municipal People’s Committees, and concerned organizations and
individuals shall implement this Decision.
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Nguyen Tan Dung
REGULATION
ON HIRING OF FOREIGN CONSULTANTS IN
CONSTRUCTION ACTIVITIES IN VIETNAM
(Promulgated together with the Prime Minister’s Decision
131/2007/QD-TTg of
August 9, 2007)
Article 1.- Scope of regulation, subjects of application
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2.
When treaties to which the Socialist Republic of Vietnam is a contracting party
or has acceded provide for the use of construction consultancy services
differently, those treaties prevail.
Article 2.- Principles for hiring foreign
consultants
1.
Based on quality requirements on construction consultancy service products,
work construction project owners, agencies or organizations elaborating
construction planning schemes shall propose the hiring of foreign consultants
for provision of construction consultancy services when necessary.
2.
Hiring of foreign consultants for provision of construction consultancy
services must ensure the principles for competitiveness, cost saving and
efficiency.
3.
Hiring of foreign consultants is not permitted for provision of construction
consultancy services related to state secrets; when necessary, the hiring must
be approved by competent agencies.
4.
Foreign consultants must fully satisfy capacity conditions relevant to the
scope and content of hired construction consultancy services.
5.
Hiring of foreign consultants must comply with this Regulation and Vietnam’s
relevant laws.
Article 3.- Competence to decide on
hiring of foreign consultants
1.
Investment deciders shall decide on whether to hire and how to hire foreign
consultants to provide construction consultancy services related to work
construction investment projects.
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3.
Hiring of foreign consultants must be specified in the investment decision, for
work construction investment projects or in the decision to approve planning
tasks, for construction planning schemes.
Article 4.- Forms of hiring foreign
consultants
There
are two forms of hiring foreign consultants: hiring of experts and hiring of
organizations
1.
Hiring of experts is to hire foreign individuals to provide construction
consultancy services at the request of investment owners or agencies in charge
of elaborating construction planning schemes.
2.
Hiring of organizations is to hire foreign consultancy contractors or
partnerships between foreign consultancy contractors and domestic consultancy
contractors to provide construction consultancy services at the request of
investment owners or agencies organizing the elaboration of construction
planning schemes.
Article 5.- Requirements on foreign
consultants’ capacity
1.
Foreign consultants must provide and prove their legal person status and
professional capacity when they participate in the selection of foreign
consultants to provide construction consultancy services in Vietnam.
2.
Bidding invitation dossiers for foreign consultants, apart from specifying
capacity conditions required by Vietnam’s current law, must supplement the
following capacity conditions for consultancy experts and organizations:
a/
Hiring of experts: Experts must possess a construction consultancy practice
certificate; have at least 5 years of construction consultation practice and
have completed at least three construction consultancy services of the same
kind with that to be hired;
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Article 6.- Modes of selecting foreign
consultants
1.
Foreign consultants must be selected in compliance with Vietnam’s current
bidding law and this Regulation.
2.
For construction planning schemes which must be selected through a
contest, such contest must be organized prior to the selection of foreign
consultants. The contest form and content shall be determined by the person
competent to approve those construction planning schemes.
3. In
the selection of foreign consultants, when many foreign consultancy
organizations and individuals satisfy required capacity conditions, priority is
given to organizations or individuals that commit to training domestic
consultants that join them in providing construction consultancy services in
order to improve the latter’s professional level.
Article 7.- Management of expenses for
hiring foreign consultants
1.
Expenses for hiring foreign consultants for construction consultancy services
must be determined in conformity with the hiring party’s payment capacity,
ensuring reasonable production costs. These expenses are used within the
project’s total investment according to regulations.
2.
Expenses for hiring foreign consultants are determined according to
person-per-month estimates (according to international practice) or by
percentage. Estimates of costs to hire foreign consultants is the aggregate
expenses necessary to complete the hired construction consultancy service,
including expenses for experts and other related expenses, including payable
taxes according to current law.
a/
Expenses for experts are determined based on the number of experts and each
expert’s working time corresponding to his/her base salary and expenses
calculated based on the expert’s base salary such as social expense, management
expense, profit, allowance and insurance expense. The number of experts and
each expert’s working time are determined based on the volume of work to be
done, work schedule requirement, professional level and each expert’s
capability to handle work. The level of experts’ base salary and expenses
calculated based on their base salaries must be based on consultancy
organizations’ audited financial operation reports or on experts’ salary level
stated in expert hiring contracts which have been performed within the latest
three years;
b/
Other expenses cover travel expenses of experts, expenses for working offices,
expenses for meetings and workshops and other expenses (if any);
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The
Ministry of Construction shall guide the determination of expenses for hiring
foreign consultants in accordance with this Regulation.
3. In
case of designation of a foreign consultancy contractor, the investor shall
organize the calculation and appraisal of the expenses for hiring foreign
consultants and submit them to the investment decider (or the authorized
person, for projects to be decided by the Prime Minister) for approval.
Provincial/municipal People’s Committees shall approve expenses for hiring
foreign consultants to elaborate construction planning schemes in their
provinces or cities. Agencies in charge of elaborating construction planning
schemes to be approved by the Prime Minister shall approve expenses for hiring
foreign consultants.
4.
Investors of work construction projects and agencies in charge of elaborating
construction planning schemes may hire capable consultancy organizations to
appraise estimates of expenses for hiring foreign consultants prior to approval
of these estimates.
Article 8.- Management of contracts on
hiring of foreign consultants
1.
Foreign consultants must be hired through consultancy contracts signed between
consultancy contractors and investors of work construction investment projects
or agencies in charge of elaborating construction planning schemes.
2.
Contents of contracts on hiring of foreign consultants must comply with
Vietnamese law. Apart from main contents stipulating the scope of work,
implementation time, completed product, contracts on hiring of foreign
consultants must specify the number and quality of consultants.
3.
When a foreign consultancy contractor sets up a partnership with a domestic
consultancy contractor or employs a domestic consultancy contractor as a
subcontractor, in addition to prescribed contract contents, contracts on hiring
of foreign consultants must clearly state the scope and volume of work as well
as implementation costs of each contractor in the partnership or of the
principal contractor and the subcontractor.
4.
Investors of work construction investment projects and agencies in charge of
elaborating construction planning schemes are responsible for supervising the
consistency of the provisions of contracts on hiring of foreign consultants
with the actual use of experts, arrangement of experts’ working positions and
time; volume, progress and quality of completed construction consultancy
service products which are used as the basis for work take-over and payment for
contracts on hiring of foreign consultants.
5.
Contract prices for hiring foreign consultants and contract provisions serve as
the basis for investors of work construction investment projects or agencies in
charge of elaborating construction planning schemes to pay the consultant
contractor.
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Article 9.- Management of foreign
consultancy contractors
1.
After being selected to provide construction consultancy services in Vietnamese
territory, foreign consultancy contractors shall observe Clause 4, Article 7 of
the Construction Law and the Prime Minister’s Decision 87/2004/QD-TTg of May
19, 2004, on the Regulation on management of operation of foreign contractors
in the construction domain in Vietnam.
2. In
the course of providing construction consultancy services involving
construction criteria and norms, foreign consultancy contractors shall comply
with the provisions of Vietnamese law on application of construction criteria
and norms. When foreign construction criteria and norms are applied, such
application must comply with relevant current legal documents.
3.
Foreign consultancy contractors may not trade their contracts in any form. In
the course of supervising contract performance, if contract breach or trading
is detected, it shall be handled according to current regulations.
Article 10.- Organization of
implementation
1.
The Ministry of Construction shall guide, and handle problems arising in, the
implementation of this Regulation.
2.
Ministries, ministerial-level agencies, government-attached agencies, and
provincial/municipal People’s Committees shall send annual reports on the
implementation of this Regulation to the Ministry of Construction for sum-up
and report to the Prime Minister.
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Nguyen Tan Dung