Circular No. 08/2019/TT-BXD dated November 11, 2019 of the Ministry of Construction on prescribing the supervision and quality management of construction investment works in the form of public-private partnership

Circular

Prescribing the supervision and quality management of construction investment works in the form of public-private partnership^[1]

Pursuant to the June 18, 2014 Law on Construction;

Pursuant to the Government’s Decree No. 63/2018/ND-CP of May 4, 2018, on investment in the form of public-private partnership (below referred to as Decree No. 63/2018/ND-CP);

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 prescribing the supervision and quality management of construction investment works in the form of public-private partnership.

Article 1.Scope of regulation and subjects of application

1. Scope of regulation

This Circular details the supervision and quality management of construction works under contracts prescribed in Clauses 3, 4, 5, 6, 7, 8 and 10, Article 3 of Decree No. 63/2018/ND-CP.

2. Subjects of application

This Circular applies to competent state agencies and authorized agencies defined in Clause 4, Article 8 of Decree No. 63/2018/ND-CP, investors and project enterprises (below collectively referred to as investors) and agencies, organizations and individuals involved in the investment and construction of works in the form of public-private partnership.

Article 2.Responsibilities of competent state agencies in supervision and quality management

1. To comply with regulations on quality management of construction works prescribed in legal documents on construction and provisions in Clauses 2, 3, 4 and 5 of this Article.

2. For construction investment works that do not apply BT contracts

a/ To examine the requirements for contractors’ capacity and experiences in bidding dossiers or requirement dossiers, and contractor selection results of bidding packages of projects (if any) during the project implementation before approved by project enterprises as stated in project contracts;

b/ To inspect the compliance with regulations on quality management of investors and contractors participating in building works in accordance with the law on construction and project contracts. Upon implementation, to draw and approve inspection outlines covering inspection scope, contents and frequency and other requirements of works that need to be done;

c/ To suggest investors requesting supervision consultants and construction contractors to replace their personnel that fail to meet capacity requirements stated in bidding dossiers, requirements dossiers and the law on construction;

d/ To propose investors to suspend or stop the construction of works upon the detection of an incident causing unsafety to works or signs of violating regulations on force-bearing safety and fire prevention and fighting or environmental regulations, affecting people’s life and community safety and the safety of adjacent works, and request contractors to take remedial measures before resuming the construction of works;

dd/ To inspect the quality of construction work parts and items and whole construction works when having suspicion about their quality or at the request of state management agencies. To organize the selection of inspection contractors and approval of inspection contractor selection results in accordance with the bidding law; examine the implementation of inspection under regulations. The order of inspection and inspection outlines must comply with the law on construction;

e/ To examine the conditions for pre-acceptance test upon the completion of work items or construction works as prescribed in Clause 2, Article 31 of Decree No. 46/2015/ND-CP and project contracts;

g/ To inspect the quality of works to serve as a basis for transfer as stated in project contracts for BOT and BLT contracts upon the completion of the operation or service  provision period;

h/ To coordinate with investors to make project handover dossiers;

i/ To inspect the organization of construction work warranty and maintenance in accordance with law and project contracts.

3. For construction investment works applying BT contracts

a/ To comply with Points a, dd and h, Clause 2 of this Article;

b/ To assign project management units or project management boards prescribed in Clause 6, Article 8 of Decree No. 63/2018/ND-CP or hire fully capable consultancy organizations as prescribed in the law on construction to supervise the construction of works in accordance with Clause 1, Article 26 of Decree No. 46/2015/ND-CP.

In case of necessity, competent state agencies shall assign investors to organize the implementation of a number of contents prescribed in Clause 1, Article 26 of Decree No. 46/2015/ND-CP. The contents of works shall be assigned to investors for implementation based on the agreements between investors and competent state agencies and not include  those prescribed at Points b, d, e, h, n and o, Clause 1, Article 26 of Decree No. 46/2015/ND-CP.

c/ To suspend or stop the construction of works upon the detection of an incident causing unsafety to works or signs of violating regulations on force-bearing safety, and fire prevention and fighting or environmental regulations, affecting people’s life and community safety and the safety of adjacent works, and request contractors to take remedial measures before resuming the construction of works;

4. Competent state agencies may assign specialized construction agencies to perform the jobs prescribed at Points a, b, e and i, Clause 2 of this Article; assign project management boards and project management units to perform the jobs prescribed at Points dd, g and h, Clause 2 of this Article. In all cases, competent state agencies shall be responsible for the obligations stated in the signed contracts.

5. The assignment of responsibilities for agencies competent to sign project contracts and project enterprises in supervision and quality management of construction works must be clearly stated in project contracts.

Article 3.Investors’ responsibilities in supervision and quality management

1. To perform investors’ responsibilities for supervising and managing the quality of construction works prescribed in the law on construction.

2. To perform the obligations stated in project contracts to manage the quality of construction works.

3. To supervise the construction quality of works under the agreements signed with competent state agencies as prescribed at Point b, Clause 3, Article 2 of this Circular.

4. To perform other responsibilities stated in project contracts and other relevant laws.

5. To conduct technology transfer and provide training, warranty, maintenance, management and use of construction works in compliance with project contracts’ requirements.

Article 4.Expenses for inspection, supervision and quality management of the construction of works

1. Inspection expenses are prescribed at Points dd and g, Clause 2, Article 2 of this Circular and responsibility for payment of inspection expenses shall be determined according to Clause 4, Article 29 of Decree No. 46/2015/ND-CP.

2. Expenses for construction supervision prescribed at Point b, Clause 3, Article 2 of this Circular shall be determined according to regulations on management of construction investment expenses.

In case a competent state agency organizes the construction supervision or assigns part of the construction supervision work to an investor under Point b, Clause 3, Article 2 of this Circular, the total expense for work construction supervision by the competent state agency and the investor must not exceed the prescribed construction supervision expense.

3. Expenses for competent state agencies to inspect the supervision and quality management prescribed at Point b, Clause 2, Article 2 of this Circular are included in the expenses for the supervision of the project contract. Competent state agencies shall determine such expenses based on to-be-inspected tasks.

Expenses for project contract supervision shall be included in the total expenses for the operation of project management units of competent state agencies and determined according to the regulations on management of construction investment expenses.

Article 5.Effect

1. This Circular takes effect on January 1, 2020.

2. To annul Article 4 of the Minister of Construction’s Circular No. 26/2016/TT-BXD of October 26, 2016, detailing a number of contents on quality management and maintenance of construction works.

3. For construction investment projects in the form of public-private partnership in which  contracts are officially signed before the effective date of this Circular, the supervision and quality management will continue to be implemented according to project contracts.

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

For the Minister of Construction
Deputy Minister
LE QUANG HUNG