Decision No. 19/2003/QD-BXD dated July 03, 2003 of the Ministry of Construction promulgating the regulation on construction capability conditions

DECISION

PROMULGATING THE REGULATION ON CONSTRUCTION CAPABILITY CONDITIONS

THE MINISTER OF CONSTRUCTION

Pursuant to the Government's Decree No. 36/2003/ND-CP of April 4, 2003 defining the functions, tasks, powers and organizational structure of the Construction Ministry;

Pursuant to the Investment and Construction Management Regulation promulgated together with the Government's Decree No. 52/1999/ND-CP of July 8, 1999, Decree No. 12/2000/ND-CP of May 5, 2000 and Decree No. 07/2003/ND-CP of January 30, 2003;

At the proposals of the directors of the Construction and Installation Department and the Legal Department,

DECIDES:

Article 1.- To promulgate together with this Decision the Regulation on the construction capability conditions.

Article 2.- This Decision takes effect 15 days after its publication in the Official Gazette and shall apply uniformly nationwide.

Article 3.- The ministers, the heads of the ministerial-level agencies, the heads of the agencies attached to the Government, the central bodies of the mass organizations, the presidents of the People's Committees of the provinces and centrally-run cities, enterprises, project investors, and the concerned organizations and individuals shall have to implement this Decision.

REGULATION

ON CONSTRUCTION CAPABILITY CONDITIONS
(Promulgated together with the Construction Minister's Decision No. 19/2003/QD-BXD of July 3, 2003)

Chapter I

GENERAL PROVISIONS

Article 1.- Scope and objects of application

This Regulation prescribes the conditions on the capability of organizations and individuals when being engaged in construction activities, including construction investment consultancy, construction and installation of civil, industrial, communication, irrigation or hydroelectric power works and other construction works in the Vietnamese territory.

Article 2.- Interpretation of terms

In this Regulation, the following words and phrases shall be construed as follows:

1. Construction activities mean activities of performing the construction investment consultancy, construction and installation of works of all kinds.

2. Construction investment consultancy covers:

a/ Formulation of construction investment projects (pre-feasibility study report, feasibility study report and investment report),

b/ Management of construction investment projects,

c/ Construction survey,

d/ Work designing,

e/ Supervision of construction and installation,

f/ Inspection of construction quality,

g/ Other construction consultations.

3. Construction and installation of works include the building and installation of equipment of new construction works; renovation, embellishment and maintenance of construction works.

4. Project formulation manager means a person directly organizing the formulation of a construction investment project and bearing the prime responsibility for the content and quality of such project.

5. Construction survey responsible person means a person directly organizing the performance of the construction survey task and bearing the prime responsibility for the results of survey task performance.

6. Designing blueprint manager means a person directly organizing the performance of the work-designing task and bearing the prime responsibility for the content and quality of the designing blueprint.

7. Designing responsible person means a person directly organizing and performing a professional domain of the designing blueprint under the direction of the designing blueprint manager, and bearing the responsibility for the content and quality of such professional domain.

8. Chief supervisory engineer means a person representing the investor (or the project management unit) to directly organize the supervision of the work construction and installation and bearing responsibility for the construction and installation quality of works under his/her supervision.

9. Specialized supervisory engineer means a person directly organizing and performing the supervision of a specialized domain under the direction of the chief supervisory engineer and bearing responsibility for the construction and installation quality of works in the specialized domain under his/her supervision.

10. Inspection responsible person means the person directly organizing the work of inspecting construction quality and bearing responsibility for the quality of the inspection.

11. Construction chief conductor means a person representing the construction and installation contractor to exercise the rights and perform the obligations of the contractor at the construction site, directly conducting and bearing responsibility for the work construction and installation.

12. Principal contractor means a contractor directly signing a contract with the investor to perform the principal work. The main contractor may be designing main contractor, the technological equipment provision main contractor or the construction and installation main contractor.

13. Subcontractor means a contractor signing contract with the main contractor or the general contractor to perform a portion of the main contractor's or the general contractor's work.

14. General contractor means a contractor directly signing a contract with the investor to undertake the whole single work or all works of a construction investment project. General contractor may be in the following principal forms:

a/ Engineering general contractor;

b/ Construction and installation general contractor;

c/ Engineering and construction-installation general contractor;

d/ Engineering, technological equipment provision and construction general contractor (EPC general contractor);

e/ General contractor for formulation of a construction investment project, engineering, technological equipment provision and construction (turn-key general contractor).

Article 3.- The principle of satisfaction of the construction capability conditions

1. Organizations and individuals when conducting construction activities shall only be entitled to perform jobs suitable to their own capability according to this Regulation.

2. Individuals joining in construction activities must have professional qualifications and health conditions suitable to the jobs they undertake; be possessed of professional ethics and knowledgeable about law provisions on construction investment and other relevant law provisions.

3. Persons competent to assign individuals to assume the following posts in construction activities must observe the provisions on the capability conditions prescribed in this Regulation, ensuring sufficient time for such individuals to perform the tasks of their posts, and take responsibility for their decisions: Project formulation manager; persons in charge of professional domains of the project; head and deputy heads (director and deputy directors) of the project management unit; persons in charge of professional domains of the project management unit; construction survey responsible person; designing blueprint manager; designing responsible manager; chief supervisory engineer; specialized supervisory engineers; expertise responsible person; construction chief conductor; persons in charge of construction techniques.

4. One person must not hold concurrently more than two posts and perform simultaneously more than two jobs for one post specified in Clause 3 of this Article. Persons holding the above-said posts must not let others take up such posts on their behalf.

5. Investors or contract-assigning parties and consultants, when selecting contractors to perform jobs in construction activities and when setting up management units to execute construction investment projects, must ensure the capability conditions according to this Regulation.

6. Persons who verify, expertise and make pre-acceptance test of construction investment consultancy products must examine the capability conditions of organizations and/or individuals making such products. Where the capability conditions prescribed in this Regulation are not satisfied, they may refuse to consider nor make pre-acceptance test.

Article 4.- Project types and groups, work types and grades

1. Construction investment project types and groups mentioned in this Regulation shall comply with the Government's Decree No. 12/2000/ND-CP of May 5, 2000 amending and supplementing a number of articles of the Investment and Construction Management Regulation promulgated together with the Government's Decree No. 52/1999/ND-CP of July 8, 1999.

2. Work types and grades applicable in this Regulation shall comply with the provisions of the Construction Regulations, the Construction Standards and the Vietnamese Standards currently in force.

Particularly for condominiums, public works, construction material industry projects and water supply and drainage works specified in Appendix 1 to this Regulation (not printed herein), they shall be temporarily stipulated for use as basis for the determination of the construction capability.

Chapter 2

CAPABILITY CONDITIONS OF CONSTRUCTION INVESTMENT CONSULTANCY ORGANIZATIONS

Organizations, when contracting to provide construction investment consultancy, must satisfy the general conditions prescribed in Article 5 and specific conditions prescribed for each construction investment consultancy domain mentioned in Articles 6, 7, 8, 9, 10 and 11 of this Chapter.

In cases where investors perform by themselves some construction investment consultancy domains, they shall have to satisfy the capability conditions prescribed in this Regulation.

Article 5.- General conditions

1. Having enough professional personnel trained to meet the requirements of each construction investment consultancy domain they undertake.

2. Having principal facilities and equipment capable of meeting the requirements of construction investment consultancy jobs they undertake.

3. Having the quality control system suitable to construction investment consultancy domains.

4. Implementing the regulations on insurance in construction investment consultancy activities according to the provisions of law.

Article 6.- Capability conditions of organizations formulating construction investment projects

1. When formulating a construction investment project, there must be adequate staff satisfying the conditions of qualifications to assume posts of project formulation manager, persons in charge of professional domains according to the requirements of the project formulation.

2. Project formulation manager and person in charge of each professional domain of the project must be on the State payroll or sign labor contracts with the project formulation consultancy organization according to the provision of law.

3. Project formulation manager must have university or higher degree in majors suitable to the requirements of the project and satisfy one of the following conditions:

a/ Having worked as manager for formulation of a similar project.

b/ Having worked as manager for formulation of two projects of the same type and in the immediately lower group.

c/ Having been in charge of principal professional domains of two similar projects.

4. Person in charge of each professional domain of the project must have university or higher degree in majors suitable to the undertaken jobs and satisfy one of the following conditions:

a/ Having been in charge of the same professional domain of a similar project.

b/ Having been in charge of the same professional domain of two projects in the immediately lower group.

c/ Having personally performed the same professional job of two similar projects.

Article 7.- Capability conditions of project management units

1. A project management unit, when being set up to manage the execution of a construction investment project, must satisfy the following capability conditions:

a/ Having an apparatus directly managing the performance of jobs of the project, which is professionally qualified to meet the project's requirements.

b/ Having adequate staff satisfying the capability conditions to hold the posts of head of project management unit, deputy heads in charge of professional domains of the project management unit according to the requirements of the project execution management.

c/ Head, deputy heads or director, deputy directors (collectively referred to as head and deputy heads) and persons in charge of professional domains of the project management unit must be on the State payroll or sign labor contracts with the organization setting up the project management unit.

d/ Head of the project management unit must have university or higher degree in construction suitable to the project's requirements and satisfy one of the following conditions:

- Having worked as head or deputy head of the management unit of a similar project.

- Having worked as head of the management unit of two projects of the same type and in the immediately lower group.

- Having been in charge of the technical or economic domain of two similar projects.

e/ Deputy heads of the project management unit must have university or higher degree in majors suitable to domains they are in charge of and satisfy one of the following conditions:

- Having worked as deputy head of the management unit of a similar project.

- Having worked as head of the management unit of a project of the same type and in the immediately lower group.

- Having been in charge of the same professional domain of two similar projects.

f/ Persons in charge of techniques and technologies must have university or higher degree in construction or technical specialties suitable to the requirements of the jobs they undertake and satisfy one of the following conditions:

- Having been in charge of the technical or technological domain of a similar project.

- Having been in charge of the technical or technological domain of two projects of the same type and in the immediately lower group.

- Having personally taken part in the technical or technological management of similar projects for at least 3 years.

g/ Persons in charge of the economic domain must have university or higher degree in economics or finance and satisfy one of the following conditions:

- Having been in charge of the economic domain of a similar project.

- Having been in charge of the economic domain of two projects of the same type and in the immediately lower group.

- Having personally taken part in the economic management of similar projects for at least 3 years.

2. For group-C projects and small-sized works with simple techniques, which are eligible for the application of the form of investor's direct management of project execution (without setting up a project management unit but employing the investor's existing apparatus for concurrent management of the project), the persons assigned to manage the project execution must meet the following conditions:

a/ Persons in general charge of project execution management must have university or higher degree in construction suitable to the project's requirements and have worked in the domain of construction investment management for at least 3 years.

b/ Persons in charge of technical management of projects must have university or higher degree in majors suitable to the jobs they undertake and have worked in professional domains for at least 3 years.

c/ Persons in charge of the economic domain must have university or higher degree in economics or finance and have worked in the professional domains for at least 3 years.

3. For a number of special cases:

a/ In case of necessity, competent persons may assign posts specified at Point d, e, f and g, Clause 1 of this Article to persons, who are professionally qualified and have managerial experiences but have not yet personally managed the execution of any construction investment project. The task assignors must bear responsibility for their decisions.

b/ For group-C projects in deep-lying and remote areas, which have not enough personnel who satisfy the capability conditions prescribed in this Regulation, the posts specified at Point d, e, f and g, Clause 1 of this Article may be assigned to persons with lower capability, who, however, must have professional qualifications and experience suitable to the jobs they undertake. The task assignors must bear full responsibility for their decisions.

4. Individuals appointed to take part in the professional management of construction investment projects must satisfy the capability conditions according to this Regulation and have certificates of training in management of construction investment projects under the Construction Ministry's program or programs agreed upon by the Construction Ministry. Within 12 months after the effective date of this Regulation, individuals taking part in the professional management must obtain the prescribed certificates.

5. Previously set up project management units which fail to satisfy the capability condition shall, within 6 months after the effective date of this Regulation, have to increase their capability to meet the requirements according to this Regulation regarding the posts mentioned at Points d, e, f and g, Clause 1 of this Article.

Article 8.- Capability conditions of construction survey contractors

1. Having adequate staff satisfying the capability conditions to assume the posts of survey responsible person, persons in charge of professional domains according to the requirements of the survey task.

2. Survey responsible person and person in charge of each professional domain must sign labor contracts with the survey contractor according to the provisions of law.

3. Survey responsible persons must have university or higher degree in majors suitable to requirements of the survey task, have personally performed the survey work for at least 5 years and satisfy one of the following conditions:

a/ Having worked as survey responsible person of a similar survey task.

b/ Having been in charge of main professional domains of two similar survey tasks.

4. Person in charge of each professional domain and performing the survey task must have university or higher degree in majors suitable to the job he/she undertakes, have personally performed the survey work for at least 3 years and performed professional jobs of two similar survey tasks.

5. In cases where laboratories are used in service of the survey work, such laboratories must be recognized as being compatible with the standards according to the current regulations.

Article 9.- Capability conditions of work-designing contractors

1. Having adequate personnel who satisfy the capability conditions to assume the posts of designing blueprint manager and designing responsible person according to the requirements of the designing task.

2. Designing blueprint manager and designing responsible persons must have labor contracts with work-designing contractor according to the provisions of law.

3. Designing blueprint manager must have certificate of work-designing practice suitable to the types of designed works and satisfy one of the following conditions:

a/ Having worked as designing blueprint manager of one work of the same type and grade.

b/ Having worked as designing blueprint manager of two works of the same type and of the immediately lower grade.

c/ Having worked as designing responsible person in the main professional domain of two works of the same type and grade.

4. Designing responsible persons must have a certificate of work-designing practice suitable to the jobs they undertake and satisfy one of the following conditions:

a/ Having been responsible for designing in the same professional domain of one work of the same type and grade.

b/ Having been responsible for designing in the same professional domain of two works of the same type and immediately lower grade.

c/ Having been personally engaged in designing in the same professional domain of two works of the same type and grade.

Article 10.- Capability conditions of construction and installation supervision contractors

1. When performing the construction and installation supervision, they must have adequate personnel who satisfy the capability conditions to act as chief supervisory engineers or specialized supervisory engineers according to the requirements of the supervision work.

2. Chief supervisory engineers and specialized supervisory engineers must have labor contracts with supervision contractors according to the provisions of law and certificates of being fostered in construction supervision skills under the Construction Ministry's programs or programs consented by the Construction Ministry.

3. Chief supervisory engineers must have university or higher degree in majors suitable to the type of works under supervision and satisfy one of the following conditions:

a/ Having worked as chief supervisory engineer of a work of the same type and grade.

b/ Having worked as chief supervisory engineer of two works of the same type and of the immediately lower grade.

c/ Having worked as specialized supervisory engineer of two works of the same type and grade.

4. Specialized supervisory engineers must have university or higher degree in majors suitable to jobs they undertake and have personally been engaged in the construction and installation of works for at least 3 years.

Article 11.- Capability conditions of construction quality inspection contractors

1. Having enough professional personnel to perform the inspection task and satisfy the requirements of the inspection work.

2. Inspection responsible persons must have labor contracts with construction quality inspection contractors according to the provisions of law.

3. Inspection responsible persons must have university or higher degree in majors suitable to the inspection work, have personally performed the inspection work for at least 5 years and satisfy one of the following conditions:

a/ Having been responsible for a similar inspection work.

b/ Having worked as inspector performing the inspection of two similar works.

4. Having laboratories compatible with the standards according to the current regulations.

Chapter 3

CAPABILITY CONDITIONS OF CONSTRUCTION AND INSTALLATION ORGANIZATIONS, PRINCIPAL CONTRACTORS AND GENERAL CONTRACTORS

Article 12.- Capability conditions of work construction and installation contractors

1. Having enough professional personnel and technical workers trained to satisfy the requirements of the work construction and installation.

2. Having main construction machinery and equipment satisfying the technical, quality and safety requirements in construction and installation, and financial capability suitable to the contracted works.

3. Having the quality control system suitable to the domain of construction and installation activities.

4. Implementing the regulations on insurance related to construction and installation activities as provided for by law.

5. Having adequate personnel satisfying the capability conditions to act as chief construction conductors and persons in charge of construction techniques according to the requirements of the work construction and installation.

6. Construction chief conductors and persons in charge of professional and technical domains must have labor contracts with the construction and installation contractors according to the provisions of law.

7. Construction chief conductors must have university or higher degree in construction suitable to works they undertake and satisfy one of the following conditions:

a/ Having worked as construction chief conductor of a work of the same type and grade.

b/ Having worked as construction chief conductor of two works of the same type and of the immediately lower grade.

c/ Having been in charge of construction and installation techniques of two similar works.

8. Persons in charge of construction techniques must have university or higher degree in construction suitable to professional and technical domains they are in charge of and satisfy one of the following conditions:

a/ Having been in charge of construction techniques of a work of the same type and grade.

b/ Having been in charge of construction techniques of two works of the same type and of the immediately lower grade.

c/ Having been construction technicians of similar works for at least 3 years.

Article 13.- Capability conditions of principal contractors

1. For designing principal contractors:

a/ Satisfying all the capability conditions prescribed in Article 9 of this Regulation.

b/ Having designed at least 2 similar construction works or 3 construction works of the same type and of the immediately lower grade.

c/ Being personally engaged in the main job and performing at least 70% of the designing work volume under contracts signed with investors.

2. For construction and installation principal contractors:

a/ Satisfying the capability conditions prescribed in Article 12 of this Regulation.

b/ Having conducted the construction and installation of at least one similar construction work or 3 works of the same type and of the immediately lower grade.

c/ Being personally engaged in the main job and performing over 50% of the designing work volume under contracts signed with investors.

Article 14.- Capability conditions of general contractors

1. Satisfying the capability conditions prescribed in Articles 5, 6, 7, 8, 9, 10, 11, 12 and 13 suitable to the form of general contractor provided for in Clause 14, Article 2 of this Regulation.

2. Having experiences:

a/ For designing general contractors: Having worked as designing general contractor of a similar work or designing principal contractor of two similar works.

b/ For construction contractors: Having worked as construction and installation general contractor of a similar work or construction and installation principal contractor of two similar works.

c/ For engineering and construction contractors: Having worked as designing and construction general contractor or construction general contractor of a similar work.

d/ For EPC general contractors: Having worked as EPC general contractor or engineering and construction contractor or construction contractor of a similar work or construction principal contractor of 3 similar works.

e/ For turn-key contractors: Having worked as turn-key contractor of a similar project or EPC general contractor or engineering and construction general contractor of a similar work or project.

Chapter 4

REPORTING, INSPECTION AND HANDLING OF VIOLATIONS

Article 15.- Reporting regime

1. In October every year, organizations engaged in construction activities shall have to report the situation of their construction activities to the competent State management agencies defined in Clause 3 of this Article.

2. Investors of projects funded with the State budget, the State investment credits and/or State-guaranteed credits shall have to report on the operations of project management units to the competent State management agencies defined in Clause 3 of this Article.

3. Organizations engaged in construction investment consultancy or construction activities, investors, project management units shall report on their activities the provincial/municipal Construction Services of the localities where they are located. Organizations engaged in construction investment consultancy or construction activities, investors, project management boards of the ministries, branches and central agencies shall report thereon to the Construction Ministry as well as the ministries, branches and agencies directly managing them.

4. In December every year, the ministries, branches and central agencies; the Construction Services of the provinces and centrally-run cities shall have to send reports on the situation of construction activities of their ministries, branches and localities made according to the set form to the Construction Ministry for synthesis and reporting to the Government.

Article 16.- Inspection and handling of violations

1. The Construction Ministry shall assume the prime responsibility for organizing the inspection and handling of violations in the implementation of this Regulation according to its competence nationwide.

2. The ministries and central branches; the Construction Services of the provinces and centrally-run cities shall assume the prime responsibility for guiding, inspecting and handling of violations in the implementation of this Regulation in the domains or localities under their respective management.

3. The inspection shall be conducted no more than once a year for a unit. Inspection plans and contents must be notified 15 days in advance.

4. Handling of violations: Organization and individuals violating the provisions of this Regulation shall, depending on the seriousness of their violations, be administratively handled, compelled to make damage compensations, suspended from operation or examined for penal liability according to the provisions of law.

Chapter 5

IMPLEMENTATION PROVISIONS

Article 17.- Implementation effect

1. This Regulation takes effect 15 days after its publication in the Official Gazette and shall apply uniformly nationwide.

2. To annul the following regulations:

a/ The Regulation on construction business conditions promulgated together with the Construction Minister's Decision No. 27/2000/QD-BXD of December 8, 2000.

b/ The regulations on the capability to manage the project execution at Points 1.2 and 2.3, Section II; Point 2.3, Section III of the Construction Minister's Circular No. 15/2000/TT-BXD of November 13, 2000 guiding the forms of management of execution of investment and construction projects.

c/ Contents on the project designing responsible persons and designing blueprint managers prescribed in Clause 2, Article 1 of this Regulation on the granting of project designing practice certificates promulgated together with the Construction Minister's Decision No. 23/2000/QD-BXD of November 13, 2000.