Circular No. 04/2019/TT-BXD dated August 16, 2019 of the Ministry of Construction on amending and supplementing a number of provisions of the Minister of Construction’s Circular No. 26/2016/TT-BXD of October 26, 2016, detailing a number of regulations on quality management and maintenance of construction works

CIRCULAR

Amending and supplementing a number of provisions of the Minister of Construction’s Circular No. 26/2016/TT-BXD of October 26, 2016, detailing a number of regulations on quality management and maintenance of construction works[1]

Pursuant to the June 18, 2014 Construction Law;

Pursuant to the Government’s Decree No. 46/2015/ND-CP of May 12, 2015, on quality management and maintenance of construction works (below referred to as Decree No. 46/2015/ND-CP);

Pursuant to the Government’s Decree No. 81/2017/ND-CP of July 17, 2017, defining the functions, tasks, powers and organizational structure of the Ministry of Construction;

At the proposal of the Director of the State Authority for Construction Quality Inspection;

The Minister of Construction promulgates the Circular amending and supplementing a number of provisions of the Minister of Construction’s Circular No. 26/2016/TT-BXD of October 26, 2016, detailing a number of regulations on quality management and maintenance of construction works.

Article 1.To amend and supplementa number of provisions of the Minister of Construction’s Circular No. 26/2016/TT-BXD of October 26, 2016, detailing a number of regulations on quality management and maintenance of construction works (below referred to as Circular No. 26/2016/TT-BXD)

1. To amend Clause 4 of, and add Clauses 5 and 6 to, Article 6 as follows:

a/ To amend Clause 4 as follow:

“4. Organizations or individuals that supervise the construction of works shall make and send construction supervision reports to project owners and take responsibility for the accuracy, truthfulness and objectivity of these reports. These reports must be made in the following cases:

a/ Periodical reports or reports for construction stages are required. Project owners shall decide to make periodical reports or reports for construction stages, and the time of making reports. The principal contents of a report are specified in Form No. 04 provided in Appendix V to this Circular;

b/ Reports are required for pre-acceptance test of construction stages, completed bidding packages, construction work items or works. The principal contents of a report are specified in Form No. 05 provided Appendix V to this Circular”.

b/ To add the following Clauses 5 and 6:

“5. Responsibilities and powers of chief supervisors

a/ To perform the comprehensive management and administration of construction supervision in accordance with Clause 1, Article 26 of Decree No. 46/2015/ND-CP, contents of contracts, jobs assigned by project owners, the quality management system and relevant regulations;

b/ To assign tasks and define responsibilities of supervisors for construction supervision, and inspect and urge their performance;

c/ To carry out supervision and sign written records of pre-acceptance test of jobs in conformity with their practice certificates in case they directly supervise construction jobs; to inspect, review and sign as-built drawings made by construction contractors against actual state of construction under regulations;

d/ To participate in, and sign written records of, pre-acceptance test of completed construction stages (if any) or construction bidding packages, items or works; to refuse to carry out pre-acceptance test of construction work items or works if their quality fails to meet requirements of designs, technical regulations and applicable standards; to notify in writing project owners of reasons for refusal;

dd/ To take responsibility before construction supervision organizations and law for jobs they perform; to refuse in writing to carry out the supervision if construction jobs fail to comply with construction master plans, construction permits, for construction works subject to construction permits, construction designs and construction contracts between project owners and contractors, and relevant regulations;

e/ To coordinate with related parties in solving problems in the course of construction;

g/ To disapprove supervision opinions and results of supervisors if the construction fails to comply with construction permits, for construction works subject to construction permits; construction designs, technical regulations, applicable standards, technical instructions, approved construction methods and safety assurance measures, construction contracts between project owners and contractors, and relevant regulations;

h/ To propose in writing to project owners the suspension of the construction if work sections or items or construction works show signs of likelihood to become unsafe and cause partial or complete collapse of works;

i/ To propose project owners to organize observation, testing and inspection of construction work items or works when necessary and contents related to changes in designs in the course of construction (if any).

6. Responsibilities and powers of supervisors

a/ To supervise construction jobs as assigned by chief supervisors in conformity with contents of their practice certificates; to take responsibility before chief supervisors and law for jobs they perform;

b/ To supervise construction jobs according to construction permits, for construction works subject to construction permits, construction designs, technical regulations, applicable standards, technical instructions, approved construction methods and safety assurance measures;

c/ To directly participate in, and sign written records of, pre-acceptance test of construction jobs; to inspect and review as-built drawings made by construction contractors against actual performance of construction jobs under their supervision;

d/ To reject requests in contravention of construction contracts between project owners and contractors and relevant regulations;

dd/ To promptly report to chief supervisors on other violations of construction permits, for construction works subject to construction permits; construction designs, technical regulations, applicable standards, technical instructions, approved construction methods and safety assurance measures, construction contracts between project owners and contractors, and relevant regulations; to propose in writing to chief supervisors the refusal of pre-acceptance test of construction jobs;

e/ To propose in writing to chief supervisors the construction suspension when detecting work sections or items or construction works show signs of likelihood to become unsafe and cause partial or complete collapse of works; to promptly notify such to project owners;

g/ To propose to chief supervisors the observation, testing and inspection of construction work items or works when necessary and contents related to changes in designs in the course of construction (if any).”

2. To amend and supplement Points b and c, Clause 2 of, and add Clause 3 to, Article 9 as follows:

a/ To amend and supplement Points b and c, Clause 2 as follows:

“b/ At-law representative of the construction supervision contractor, chief supervisor;

c/ At-law representatives and commanders of construction principal contractors or general contractor in case of application of general contracts; at-law representatives and commanders of all partnership members, in case of partnership contractors;”

b/ To add the following Clause 3:

“3. In case many principal contractors participate in the construction of construction work items or works, the project owner may organize, and make written records of, pre-acceptance test of construction work items and works for each construction principal contractor.”

3. To amend and supplement Clause 3 of, add Point d to Clause 1 of, and add Clause 3a to, Article 13 as follows:

a/ To amend and supplement Clause 3 as follows:

“3. Project owners shall organize pre-acceptance test of construction work items or works that are conditionally commissioned while some finishing jobs remain undone under Clause 3, and Point b, Clause 4, Article 31 of Decree No. 46/2015/ND-CP.

Project owners shall organize the construction and pre-acceptance test of remaining jobs according to approved designs. The construction must ensure safety and cause no impact on normal operation of construction work items or works for which pre-acceptance test results have been approved.”

b/ To add the following Point d to Clause 1:

“d/ The specialized agency in charge of construction shall carry out the inspection of the contents specified at Points a, b and c, Clause 3a of this Article.”

c/ To add the following Clause 3a below Clause 3:

“3a. The specialized agency in charge of construction mentioned in Clause 2, Article 32 of Decree No. 46/2015/ND-CP shall inspect:

a/ The actual construction of works against construction permits, for works subject to construction permits, construction designs, technical regulations, applicable standards, technical instructions, and approved safety assurance measures;

b/ The compliance with the regulations on occupational safety management in the construction of works;

c/ The compliance with the regulations on quality management of construction works by project owners and relevant contractors in survey, designing and construction of works;

d/ Conditions for pre-acceptance test of completed construction work items and works.”

4. To amend Clause 2, Article 14 of Circular No. 26/2016/TT-BXD as follows:

“2. Expenses for the inspection of pre-acceptance test of construction works constitute an item among other expenses and shall be estimated in the total construction investment.

The expenses mentioned in Clause 1 of this Article shall be estimated based on characteristics and nature of the work, construction site and duration, number of employees and experts (if any) participating in the inspection of pre-acceptance test, and work volume to be performed. For works using state funds, the expenses specified at Point c, Clause 1 of this Article much not exceed 20% of expenses for construction supervision consultancy. The making, appraisal and approval of expense estimates for inspection of pre-acceptance test of construction works must comply with Clause 5, Article 32 of Decree No. 46/2015/ND-CP.”

5. To add the following Articles 15a and 15b below Article 15 of Circular No. 26/2016/TT-BXD:

“Article 15a. Management of field experimentation in the course of construction

1. Project owners shall inspect capacity conditions, and accredit laboratories and field experiment stations proposed by contractors in accordance with law with sufficient specialized construction tests for the quality management of works before the construction is organized.

2. Contractors shall make experimentation plans prescribed in Clause 3 of this Article, and submit them to project owners for approval before the construction of works is organized.

3. An experimentation plan must contain:

a/ Experiments to be conducted; frequency and number of tests for each type of experiment in accordance with construction designs, technical regulations, applicable standards, technical instructions, and volume of construction jobs;

b/ Sampling, maintenance, experimentation, sample retention and processing of experiment results;

c/ Responsibilities of contractors and supervision divisions of project owners.

4. In the course of construction, supervision divisions of project owners shall periodically inspect operation of laboratories and field experiment stations, specifically as follows:

a/ Regarding laboratories, to inspect capacity dossiers of experimenters directly conducting experiments, process of conducting experiments and calibration of experiment equipment under regulations;

b/ Regarding field experiment stations, the inspection must comply with the Minister of Construction’s Circular No. 06/2017/TT-BXD of April 25, 2017, guiding specialized construction experimentation.

5. Contractors in charge of experimentation shall conduct experiments under experimentation plans approved by project owners. In case of a change or an adjustment, contractors shall make adjusted experimentation plans and submit them to project owners for approval before conducting experiments.

Article 15b. Observation of works or work sections in the course of construction

1. The observation of construction works in the course of construction shall be carried out in the following cases:

a/ It is stated in approved construction designs, technical instructions and construction methods;

b/ The works show any abnormal signs (subsidence, sliding, sinking, tilt, cracking, etc.) that require observation for the assessment and identification of reasons for taking remedial measures or preventing possible incidents in the course of construction.

2. Work construction contractors shall carry out the observation under Clause 1 of this Article and construction contracts. A project owner may select a contractor independent from the construction contractor to carry out a number of observation jobs in the course of construction.

3. For works using state funds, if the project owner has selected an observation contractor independent from the construction contractor to carry out a number of observation jobs in the course of construction, the construction contractor shall refuse to carry out such jobs and use independent observation results in accordance with the agreement with the project owner.

4. An observation plan must state contents, frequency and time of observation; human resources, observation machinery and equipment; benchmark used for the observation; observation process; contents of reports and assessment of observation results.

5. Responsibilities of construction contractors and independent contractors in charge of work observation (below referred to as observation contractors):

a/ To make and submit observation plans to project owners for approval;

b/ To organize the observation under approved observation plans; to make reports on, and assess, observation results.

6. Responsibilities of project owners:

a/ To approve observation plans made by observation contractors. Project owners may request supervision consultancy contractors and construction designing contractors to examine observation plans or hire consultants to examine such plans when necessary before approving them;

b/ To supervise and assess results of the observation carried out by contractors. To specify cases and request designing contractors to assess and give opinions on observation results of such cases in the course of construction;

c/ To request construction contractors to use observation results in the course of construction in accordance with construction designs, technical instruction and approved construction methods.

7. Responsibilities of designing contractors:

a/ To consider and examine observation plans made by contractors when so requested by project owners to ensure that they conform to observation contents stated in design dossiers, technical instructions and construction methods;

b/ To assess observation results obtained for observation contents stated in design dossiers and technical instructions and other observation contents in the course of construction when so requested by project owners.

8. In the course of observation and assessment of observation results, if observation data show possible incidents of works or factors that might impact construction quality, contractors carrying out the observation and assessment of observation results shall immediately notify such to project owners in writing for timely handling”.

6. To amend and supplement Point b, Clause 2, Article 18 as follows

“b/ In case inspection is requested by the specialized agency in charge of construction or state management agency in charge of construction specified at Point dd, Claus 2, Article 29 and Point dd, Clause 5, Article 40 of Decree No. 46/2015/ND-CP (below collectively referred to as requesters), project owners, owners, managers or users of construction works shall select inspection organizations under Point a, Clause 2 of this Article and obtain approval of requesters for their selection.”

7.To replace Appendix V to Circular No. 26/2016/TT-BXD with Appendix I to this Circular.

Article 2.Effect

1. This Circular takes effect on October 1, 2019.

2. Any problems arising in the course of implementation of this Circular should be reported to the Ministry of Construction for consideration and settlement.-

For the Minister of Construction
Deputy Minister
LE QUANG HUNG

* The appendices to this Circular are not translated.