Decision No. 22/2008/QD-BGTVT dated October 20, 2008 of the Ministry of Transport promulgating the Regulation on supervision consultancy on the construction of transport works

DECISION

PROMULGATING THE REGULATION ON SUPERVISION CONSULTANCY ON THE CONSTRUC­TION OF TRANSPORT WORKS

THE MINISTER OF TRANSPORT

Pursuant to the November 26, 2003 Construction Law;

Pursuant to the Government's Decree No. 51/2008/ND-CP of April 22, 2008, defining the functions, tasks, powers and organizational structure of the Ministry of Transport;

Pursuant to the Government's Decree No. 16/2005/ND-CP of February 7, 2005, on management of investment projects on the construction of works, and the Government's Decree No. 112/2006/ND-CP of September 29. 2006, amending and supplementing a.number of articles of Decree No. 16/2005/ND-CP;

Pursuant to the Government's Decree No. 209/2004/ND-CP of December 16, 2004, on quality management of construction works, and the Government's Decree No. 49/2008/ND-CP of April 18, 2008, amending and supplementing a number of articles of Decree No. 209/2004/ ND-CP of December 16. 2004:

At the proposal of the director of the Department for Management of the Construction and Quality of Transport Works,

DECIDES:

Article 1.- To promulgate together with this Decision the Regulation on supervision consultancy on the construction of transport works.

Article 2.- This Decision takes effect 15 days after its publication in "CONG BAO" and replaces the Transport Minister's Decision No. 1562/1999/ QD-BGTVT of June 29, 1999, promulgating the Regulation on supervision consultancy on the construction of transport works.

Article 3.- The director of the Office, the chief inspector,.directors of departments, the director of the Department for Management of the Construction and Quality of Transport Works, and directors of specialized management departments of the Ministry, directors of provincial/municipal Transport Services, heads of concerned agencies, and concerned organizations and individuals shall implement this Decision.

REGULATION

ON SUPERVISION CONSULTANCY ON THE CONSTRUC­TION OF TRANSPORT WORKS
(Promulgated together with the Transport Minister's Decision No. 22/2008/QD-BGTVT of October 20, 2008)

Chapter 1

GENERAL PROVISIONS

Article 1.- Governing scope and subjects of application

1. Governing scope

This Regulation provides for supervision consultancy on the construction of works, uniformly applicable to all investment projects on the construction of transport works funded with state budget capital.

It is encouraged to apply this Regulation to projects funded with capital of other sources.

2. Subjects of application

a/ This Regulation applies to organizations and individuals directly engaged or involved in providing supervision consultancy services for the construction of transport works.

b/ Supervision organizations set up by investors to supervise the construction of works shall, within the ambit of their role and assigned functions and tasks, abide by the provisions of this Regulation.

Article 2.- Interpretation of terms

In this Regulation, the terms below are construed as follows:

1.Supervision consultancy means the provision of consultancy services of managing and supervising the process of construction of works under contracts signed with investors.

2. Supervision consultancy organization means a contractor that provides supervision consultancy on the construction of works under contracts signed with investors.

3.Supervision consultancy individual means a person employed by a supervision consultancy organization or a person practicing independent supervision consultancy.

4. Organization providing designing consultancy on the construction of works means a contractor that conducts technical survey and designing (in 3-step designing) or survey and designing of working drawings (in 1- or 2-step designing) as a basis for making bidding dossiers for the construction of works under contracts signed with investors.

5. Work construction contractor (below referred to as contractor) means an organization constructing works under contracts signed with investors.

6. Work construction supervision practice certificate (of individuals) means a paper certifying the capability to practice work construction supervision, granted by a competent agency according to regulations (below referred to as certificate).

Article 3.- Selection of supervision consultancy contractors

Organizations providing supervision consultancy on the construction of transport projects shall be selected in the form of bidding or contractor appointment according to current regulations.

Chapter 2

TASKS, POWERS AND OBLIGATIONS OF ORGANIZATIONS AND INDIVIDUALS ENGAGED IN SUPERVISION CONSULTANCY WORK

Article 4.- Tasks of supervision consultancy organizations

To appoint capable employees according to regulations and arrange equipment and instruments necessary for supervision consultancy; to organize supervision consultancy offices at construction sites suitable to the scale and requirements of each project or work (for transport construction projects, see the Appendix on the model of organization of supervision consultancy offices applicable to transport construction projects - not printed herein); to manage the quality and progress of construction, work construction volumes and cost prices, labor safety and environmental sanitation in the course of construction of works. Specifically:

1. Quality management (control)

a/ To examine and check design drawings in bidding dossiers, technical instructions and contractual terms, and propose to investors solutions to problems or necessary adjustments if any) in design dossiers to suit practical conditions and comply with current regulations;

b/ To review and examine general and detailed construction schedules drawn up by contractors and give comments on the suitability with the general construction schedule; to plan the appointment of supervision consultants according to the construction plan in each period;

c/ Based on approved design dossiers and technical instructions in bidding dossiers and current processes, regulations, branch standards and Vietnam standards applicable to projects, to verify working drawings made by contractors and submit them to investors for approval;

d/ Based on approved technical design dossiers and  working drawings and amending decisions. to verify contractors' proposals on additional survey and presents opinions to investors for decision: to inspect and monitor contractors" topography and additional survey; to inspect, check, and sign for approval of, or submit to investors for approval, working drawings and construction measures the modification and addition of which have been approved by investors and project management units to ensure their suitability with designs in bidding dossiers;

e/ To inspect conditions for starting the construction of works under Article 72 of the Construction Law;

f/ To inspect construction contractors' construction workers and equipment at construction sites; to certify the quantity and quality of machines and equipment (manufacturer certificates, equipment inspection results of accredited organizations of contractors and subcontractors under construction contracts or dossiers of successful bids; to inspect preparations for the storage of materials (warehouse and storing yards) and organization of construction sites (houses, offices and other living conditions);

g/ To inspect contractors' internal quality management systems: organizational systems and quality management methods and quality control divisions (from the stage of making working drawing dossiers, controlling the construction quality at construction sites and conducting internal take-over tests).

h/ To inspect and certify in writing the quality of contractors" laboratories at construction sites as prescribed in bidding dossiers; to inspect certificates of professional capability of officers, engineers and experimenters;

i/ To supervise the quality of materials at supplying sources and construction sites as required by technical instructions. To make written records disallowing the use of poor-quality materials, structure components, equipment and products brought by contractors to construction sites and. at the same time, request the removal of such materials, components, equipment and products out of construction sites;

j/To inspect and check the construction quality of each job and work item upon receiving contractors' letters of request as required in technical instructions. Inspection results must be recorded in supervision diaries of supervision consultancy organizations or made in inspection records according to regulations;

k/ To supervise the taking of test samples and keep control samples of contractors; to check the testing process and inspect testing results of contractors and give certification in test tickets;

l/ To detect construction errors, defects, breakdowns and incidents of works' parts; to make records or dossiers of incidents according to current regulations and submit them to competent authorities for settlement:

m/ To inspect and assess in time the quality of work items and parts; to request the organization of and participate in take-over tests according to current regulations;

n/ To certify in writing contractors" construction results that satisfy quality requirements in technical instructions of bid dossiers;

o/ To inspect and urge contractors to make dossiers of completion of works and pay and finalize construction funds, then review and certify them for submission to competent authorities.

2.Management of construction schedules

a/ To inspect and certify contractors* general construction progress and the construction progress of each work item against approved construction schedules.

b/ To inspect and urge construction progress. When necessary, to request contractors to adjust construction schedules to suit practical construction conditions and other conditions at construction sites which, however, must not affect overall schedules of projects. To propose measures to shorten the construction time while ensuring the quality and reasonable cost prices of works. If deeming that projects' overall schedules are prolonged, supervision consultancy organizations shall assess and identify causes, clearly indicating contractors' responsibilities and objective causes, then send written reports thereon to investors for submission to competent authorities for consideration and decision on the adjustment of projects' schedules.

c/ To regularly inspect contractors' capability in terms of construction workers and equipment against construction contracts or successful bid dossiers and based on practical construction conditions; to request contractors to add, or report and propose to investors requests to add or replace contractors or subcontractors to ensure construction schedules when necessary.

3. Management of work construction volumes and cost prices

a/ To inspect and certify contractors' work volumes which satisfy prescribed requirements on quality and cost prices, compare them with approved contract dossiers and working drawings and practical construction conditions for incorporation in monthly or periodical payment certificates as required by contract dossiers, which shall serve as a basis for making payment according to regulations.

b/ To propose solutions and promptly report to investors on work volumes arising outside contracts due to changes compared with approved designs. After reaching investors' written agreement, to examine design dossiers and calculate contractors" work volumes and cost prices resulting from such changes, make reports thereon and propose them to investors for approval.

c/ To monitor and inspect adjustments, price increases or fluctuations; to respond to investors' requests in the elaboration and evaluation of additional cost estimates and the adjustment of cost estimates: to guide and inspect contractors in making dossiers of price increases or adjusting price fluctuations as prescribed in contracts or by current law.

d/ To receive, and guide contractors in making orders of change, amendment dossiers and additional contract annexes. To propose to investors plans to settle contract disputes (if any)

4. Management of labor safety and environmental sanitation

a/ To inspect contractors' measures to organize construction and ensure construction safety. To inspect labor safety and environmental sanitation management systems, the application and dissemination of labor safety measures and rules to individuals participating in contractors' projects.

b/ To regularly inspect and request contractors to ensure labor safety and environmental sanitation at construction sites.

 5. To inspect and request contractors to take measures to ensure and organize traffic, especially for projects on upgrading, renovation or expansion of traffic works in operation.

 6. Other matters

a/To participate in dealing with incidents related to construction works and report them to competent authorities according to current regulations.

b/ To make and send regular (monthly, quarterly and annual) and irregular (upon request or when necessary) reports to investors. Such a report covers the following principal details: project implementation situation; operation of consultancy organizations (mobilization and arrangement of supervisors, results of implementation of consultancy contracts); proposals and recommendations.

c/ To receive, compare, and guide contractors in acting according to, inspection, appraisal and verification results of functional agencies and investors

7. To join grassroots checking councils according to current regulations.

Article 5.- Powers of supervision consultancy organizations

1. To check volumes of constructed works which satisfy quality requirements according to approved design dossiers, requirements of technical standards applicable to projects as well as current processes and regulations.

2. To request construction contractors to strictly observe contractual terms.

3. To reserve their opinions in supervision jobs they perform.

4. To propose to investors unreasonable points (if any) in blueprints and technical instructions of bid dossiers which should be changed or adjusted, and other matters according to current regulations.

5. To stop the use of materials or structure components failing to satisfy standard and quality requirements which are transported to, and request the removal of such materials or components out of. construction sites.

6. To suspend construction when detecting that contractors appoint incapable personnel or arrange improper or insufficient construction materials and equipment compared to signed contracts or approved dossiers of successful bids; or detecting that contractors construct works not according to processes, regulations or technical instructions in approved bid dossiers and design dossiers; or when construction methods affect adjacent works, pollute the environment and fail to ensure labor and traffic safety according to contracts signed between contractors and investors.

7. Supervision consultancy engineers should be furnished with necessary equipment to inspect the quality of contractors' construction jobs depending on the characteristics of each project.

8. Other powers as provided for by law.

Article 6.- Obligations of supervision consultancy organizations

1. To fully observe the terms of contracts signed with investors. To take responsibility before investors and law for jobs they perform under signed contracts.

2. To supervise the construction of works according to their capability and scope of operation indicated in business registration certificates and under law. To arrange capable persons who possess supervision consultancy practice certificates to conduct supervision. Not to take the names of other supervision consultancy organizations to participate in selecting and signing contracts on providing supervision consultancy on the construction of works.

3. To refuse to check works if construction contractors fail to satisfy quality requirements or decline other unreasonable requests of related parties.

4. To buy professional liability insurance.

5. Not to collude with contractors or investors in or commit other acts of falsifying supervision results or checking works not based on constructed work volumes.

6. If detecting contractors' violations of quality regulations and the provisions of Clause 6, Article 5 of this Regulation in the course of construction, to request contractors to halt construction and strictly observe the terms of contracts signed with investors or remedy consequences. After suspending construction, to immediately notify such suspension in writing to investors for consideration and decision.

7. To pay damages for intentionally falsifying supervision results for work volumes constructed not according to designs, construction regulations or standards or technical instructions applicable to projects.

Article 7.- Tasks, powers and obligations of chief supervision consultants (project directors)

1. The chief supervision consultant (project director) shall act as the highest legal representative of a supervision consultancy organization at the construction site, who is authorized by such organization to personally manage and administer the supervision consultancy unit in performing the tasks, powers and obligations defined in this Regulation and the terms of the contract signed between the supervision consultancy organization, and investor.

2. Tasks of chief supervision consultants

a/ To organize activities for and assign tasks to teams and members of supervision consultancy organizations at construction sites and, report through consultancy organizations or directly to investors and notify concerned units thereof;

b/ To inspect and urge supervision consultancy provided by teams and members of supervision consultancy organizations under signed contracts;

c/ To coordinate with related parties in solving problems arising in the course of construction of works;

d/ To sum up performed jobs and make regular (monthly, quarterly or annual) or irregular reports thereon according to regulations or at the request of investors.

3. Powers of chief supervision consultants

Chief supervision consultants may veto opinions or work resuits of members of their supervision consultancy organizations which are contrary to technical instructions, construction regulations or processes or bid dossiers.

4. Obligations of chief supervision consultants

Chief supervision consultants shall take the main responsibility before supervision consultancy organizations and investors for the management and administration of supervision consultancy units at construction sites and for supervision consultancy jobs under signed contracts.

Article 8.- Tasks, powers and obligations of chief supervision consultants, resident supervision consultancy engineers, specialized supervision consultancy engineers and supervisors

Resident supervision consultancy engineers (below referred to as resident engineers) shall represent chief supervision consultants and managers of supervision consultancy teams in performing supervision consultancy tasks as authorized by chief supervision consultants in one or several bidding packages of a project.

1. Specialized supervision consultancy engineers (below referred to as specialized engineers) shall assist chief supervision consultants and resident engineers; inspect contractors' working drawings and construction measures; solve technical problems in the course of construction; check the quality and volumes of works and sign for certification as assigned by chief supervision consultants upon receiving contractors' written requests; report to chief supervision consultants or resident engineers on performed tasks and to-be-settled problems before making decisions; and perform other tasks as assigned by chief supervision consultants.

2. Supervisors shall supervise and personally inspect and monitor the course of contractors' constructional construction sites with respect to the adherence to approved working drawings and construction measures and technical standards applicable to projects and works. Supervisors shall immediately report to resident or specialized engineers on and remind contractors of errors or possible errors during construction as compared with approved designs or construction measures. Supervisors shall regularly be present at construction sites to guide, remind, monitor and record details related to contractors' construction items as assigned by resident engineers; and take responsibility before resident engineers, chief supervision consultants and law for their errors.

Chapter 3

CAPABILITY CONDITIONS ON ORGANIZATIONS AND INDIVIDUALS ENGAGED IN SUPERVISION CONSULTANCY WORK

Article 9.- Capability conditions on supervision consultancy organizations

1. Supervision consultancy organizations must have the legal entity status and sufficient capability conditions suitable to grades and classes of works and jobs under Article 62 of the Government's Decree No. 16/2005/ND-CP of February 7,2005.

2. Class-1 supervision consultancy organizations may provide supervision consultancy on the construction of transport construction projects' works of special grade and grades I, II, III and IV or transport construction projects of groups A. Band C.

3. Class-2   supervision  consultancy organizations may provide supervision consultancy on the construction of transport construction projects' works of grades II. III and IV or transport construction projects of groups B and C, excluding grade-I and special-grade works.

Article 10.- Capability conditions on individuals being chief supervision consultants, resident engineers, specialized engineers and supervisors providing supervision consultancy on the construction of transport works

1. Chief supervision consultants must possess practice certificates for supervising the construction of transport works. Depending on the scale, grades and complexity of works, chief supervision consultants must satisfy one of the following criteria:

a/ For group-A works: Having worked continuously for at least 7 years in providing consultancy on supervision, designing or construction of transport works; having worked as chief supervision consultant (project director) or co-director for a project (ODA projects) or deputy chief supervision consultant (project deputy director) for a group-A project, designing director or deputy director or executive director for the construction of a group-A project, or chief supervision consultant for two group-B projects.

b/ For group-B projects: Having worked continuously for at least 5 years in providing consultancy on supervision, designing or construction of transport works: having worked as chief supervision consultant or resident engineer assistant (of ODA projects) or deputy chief supervision consultant for a group-B project, or having been in charge of designing or as executive deputy director for the construction of a group-A project or two group-B projects, or chief supervision consultant for two group-C works.

c/ For group-C works: Having worked continuously for at least 5 years in providing supervision, designing or construction consultancy.

2. Resident engineers must possess practice certificates for supervising the construction of transport works; have worked continuously for at least 5 years in providing supervision, designing and construction consultancy, or worked as chief supervision consultant or been in charge of designing or as the executive director for the construction of a group-B project.

3. Specialized engineers (engineers with training majors suitable to professional requirements of projects) must possess practice certificates for supervising the construction of transport works, specifically:

a/ For group-A projects: Having at least 5 consecutive years' professional experience in designing, supervision consultancy and construction of transport works and having participated in providing supervision consultancy for group-B projects.

b/ For group-B projects: Having at least 5 consecutive years' professional experience in designing, supervision consultancy and construction of transport works.

c/ For group-C projects: Having at least 5 consecutive years' professional experience in designing and supervision consultancy of transport works.

4. Supervisors must possess practice certificates for supervising the construction of transport works: have professional capability to provide supervision consultancy on the construction of transport works: and have at least 5 years working experience, for engineers, or 7 years, for persons holding a collegial degree.

5. Consultancy organizations must enter into labor contracts with consultancy engineers and supervisors for projects in the following forms:

a/ For chief supervision consultants and resident engineers: Indefinite-term labor contracts.

b/ For specialized engineers (professional specialties): Labor contracts of a term at least equal to the project execution duration.

c/ For supervisors: Labor contracts of a term of more than one year or equal to the project execution duration.

Article 11.- Capability conditions on foreign organizations and individuals providing supervision consultancy in Vietnam

To practice supervision consultancy on the construction of transport works in Vietnam, foreign organizations and individuals must satisfy all the capability conditions specified in Article 67 of the Government's Decree No. 16/2005/ND-CP of February 7, 2005. and Articles 9 and 10 of this Regulation.

Chapter 4

RELATIONSHIP BETWEEN SUPERVISION CONSULTANCY ORGANIZATIONS AND INVESTORS. CONTRACTORS. DESIGNING CONSULTANCY ORGANIZATIONS AND LOCALITIES

Article 12.- Relationship between supervision consultancy organizations and investors

1. The relationship between supervision consultancy organizations and investors is a contractual relationship. Supervision consultancy organizations shall observe the terms of signed contracts and current law, ensuring truthfulness, objectivity and disinterestedness, and provide no consultancy that prompts investors to make unreasonable requests. Investors may not change at their own discretion the scope of authorization or make interventions affecting the truthfulness, objectivity and disinterestedness of supervision consultancy organizations.

2. Supervision consultancy contracts between investors and supervision consultancy organizations must fully indicate tasks, powers and obligations of each party. The scope of powers and obligations of supervision consultancy organizations must be clearly indicated in contracts between investors and contractors as authorized in contracts between supervision consultancy organizations and investors according to current regulations.

Article 13.- Relationship between supervision consultancy organizations and contractors

1. The relationship between supervision consultancy organizations and contractors is the relationship between supervisors and supervisees. The rights and obligations of each party are defined in contracts between investors and contractors according to current regulations.

2. The relationship between supervision consultancy organizations and contractors must meet the following requirements:

a/ Each party shall create conditions for the other to well perform its tasks and cooperate with the other in overcoming difficulties arising in the course of implementation of projects, neither causing obstacles nor putting unreasonable requests to the other party. The parties shall detect problems in and improve promptly professional operations, especially in check and payment regulations, in order to make timely disbursement and speed up the implementation of projects (bidding packages).

b/ Contractors shall promptly notify in writing supervision consultancy organizations of the time and location for starting the construction, construction jobs to be started and having finished which are specified in bid dossiers and inspected, assessed and accepted by internal quality inspection systems. Such written notices must be sent to supervision consultancy organizations at least 24 hours in advance.

c/ Contractors shall promptly and fully perform the jobs under contracts at the request of supervision consultancy organizations.

d/ Supervision consultancy organizations and contractors as well as their employees may not exchange any benefits outside their contracts or in contravention of law.

e/ In case of disagreement between supervision consultancy organizations and contractors which they cannot settle by themselves, such disagreement must be promptly reported to a competent authority for settlement.

Article 14.- Relationship between supervision consultancy organizations and designing consultancy organizations

The relationship between supervision consultancy organizations and designing consultancy organizations is a coordination relationship based on the exchange, inspection and detection of errors and supplementation aiming to complete approved design dossiers through updating necessary data suitable to practical conditions in the course of project implementation, specifically:

1. Inspecting and detecting errors in approved technical design dossiers (construction and installation bidding dossiers) and reporting them to competent authorities for consideration and decision.

2. In case of big changes in technical design dossiers (construction and installation bidding dossiers), supervision consultancy organizations shall consult designing consultancy organizations and. at the same time, report them to competent authorities for consideration and decision.

Article 15.- Relationship between supervision consultancy organizations and localities

Supervision consultancy organizations must maintain a close relationship with local administrations and people in settling project-related maters in the course of construction, observe project-related state laws and local policies; respect customs, habits and beliefs of local people; and attach importance to inspecting the assurance of traffic safety and environmental sanitation, especially for upgrading and renovation projects.

Chapter 5

ENTITLEMENTS AND BENEFITS OF SUPERVISION CONSULTANCY ORGANIZATIONS AND HANDLING OF VIOLATIONS

Article 16.- Entitlements and benefits of supervision consultants

1. Supervision consultants will be provided with accommodations, working offices and means of travel at construction sites, including office and communication equipment, labor safety tools and equipment necessary for inspecting contractors* construction jobs. Funds for the above items shall be included in total supervision consultancy expenses in the value of contracts between investors and supervision consultancy organizations; or investors shall supply these facilities if contracts do not cover these expenses.

2. The working duration of supervision consultants comply with contractual terms and the labor law. Investors or contractors who request supervision consultants to spend extra time working in peak construction periods shall reach agreement with supervision consultancy organizations underthe labor law regarding overtime  pays to supervision consultants.

3. In case projects are prolonged compared with the schedule specified in bidding plans or contracts not through the fault of supervision consultants, arising expenses for supervision consultancy caused by such a prolongation, including expenses mentioned in Clause 1 of this Article, shall be negotiated and agreed by investors and supervision consultancy organizations in order to make additional payment for contracts already signed between investors and supervision consultancy organizations according to current regulations.

4. Supervision consultancy organizations providing supervision consultancy on the construction of projects or works which are regarded as high-quality works of the State and completed on schedule will be commended and given priority to be selected for the provision of supervision consultancy for subsequent works.

Article 17.- Handling of violations

Depending on the nature and severity of and consequences caused by violations, organizations or individuals providing supervision consultancy on the construction of transport projects shall be handled according to current regulations and in one of the following forms:

1. Depending on the nature of their violations, supervision consultancy organizations which are assessed as having failed to fulfill their tasks and breaching contracts already signed with investors will be banned from participation in bidding or contractor appointment for providing supervision consultancy for between 6 months and one year.

2. Supervision consultants that fail to satisfy prescribed capability conditions must be replaced; these consultants may not participate in supervision consultancy work for between 6 months and one year and. if being detected as having breached the code of- conduct of supervision consultants (applicable to all titles) while performing their tasks, ignoring contractors* errors, abusing their powers for self-seeking purposes or committing other violations which are not serious enough for having their certificates revoked.

3. Supervision consultants will have their certificates revoked if committing serious violations such as breaching the code of conduct of consultants, and intentionally falsifying supervision results for construction volumes and quality as required by projects and law.

4. If committing law-breaking acts or violations causing serious damage to property and interests of investors, violators shall pay damages and be examined for penal liability in accordance with law.

Article 18.- Implementation provisions

1. The Department for Management of the Construction and Quality of Transport Works shall oversee and inspect the implementation of this Regulation.

2. Problems arising in the course of implementation should be promptly reported to the Ministry of Transport for consideration and adjustment as appropriate.