Decision No. 3230/QD-BGTVT dated August 25, 2014 of the Ministry of Transport on promulgating the temporary decision on increasing the responsibility for maintaining road infrastructure under the investment decision made by the Ministry of Transport

THE MINISTRY OF TRANSPORT

Decision No. 3230/QD-BGTVT dated August 25, 2014 of the Ministry of Transport on promulgating the temporary decision on increasing the responsibility for maintaining road infrastructure under the investment decision made by the Ministry of Transport

Pursuant to the Law on Construction No.16/2003/QH11 dated November 26, 2003;

Pursuant to the Law on the amendment and supplementation of the laws related to investment in the fundamental construction No. 38/2009/QH12 dated June 19, 2009;

Pursuant to the Government’s Decree No.107/2012/ND-CP dated December 20, 2012 on defining the functions, tasks, entitlements and organizational structure of the Ministry of Transport;

Pursuant to the Government s Decree No.12/2009/ND-CP dated February 12, 2009 on managing investment and construction projects; the Government s Decree No.83/2009/ND-CP dated October 15, 2009 on amending and supplementing several articles of the Decree No.12/2009/ND-CP;

Pursuant to the Government s Decree No.48/2010/ND-CP dated May 07, 2010 on construction contracts; the Government’s Decree No.207/2013/ND-CP dated December 11, 2013 on amending and supplementing several articles of the Decree No.48/2010/ND-CP;

Pursuant to the Government s Decree No.15/2013/ND-CP dated February 06, 2013 on the construction quality control;

Pursuant to the Circular No.10/2013/TT-BXD dated July 25, 2013 of the Minister of Construction on specifically providing for several contents relating to the construction quality control;

Pursuant to the Circular No.52/2013/TT-BGTVT dated December 12, 2013 of the Minister of Transport on providing for the management, operation and maintenance of road works;

At the request of the Director of Transport Engineering Construction and Quality Management Bureau,

HEREBY DECIDES

Article 1. Governing scope

This Decision shall provide for the responsibility to fulfill obligations to maintain construction works, assumed by relevant entities for the road infrastructural construction under the investment decision made by the Ministry of Transport. 

Article 2. Applicable entities

1. This Decision shall be applied to project owners, investors and incorporations appointed as the project owner (hereinafter referred to as incorporation), project management unit (hereinafter referred to as PMU), contractor, and the units tasked with the management, operation and utilization of road infrastructural facilities as well as other entities relating to the fulfillment of obligations to maintain road construction works under the investment decision made by the Ministry of Transport (hereinafter referred to as works).   

2. In the event of projects financed by ODA funds, concessional and commercial loans offered by sponsors or lenders under the loan agreement or contract which contains the terms and conditions in contrast to regulations laid down in this Decision, the effective loan agreement or contract shall prevail.

Article 3. Maintenance term and rate of road construction works

Maintenance term of road construction works shall take effect from the completion of acceptance testing to the operation and utilization of construction works, or shall conform to the terms and conditions agreed in the construction contract.  Maintenance term and rate of road construction works must comply with the followings:

- Special and level-I construction works: Maintenance term is 48 months and maintenance rate makes up 3% of total contract value.

- Level-II construction works: Maintenance term is 42 months and maintenance rate makes up 3% of total contract value.

- Construction works at other levels: Maintenance term is 24 months and maintenance rate makes up 5% of total contract value.

- With respect to the project for expansion of the National Highway No.1 stretched from Thanh Hoa to Can Tho and those developed on Ho Chi Minh road passing through the Central Highlands: Maintenance term is 48 months and maintenance rate makes up 3% of total contract value.

Article 4. Implementation

1. Construction contractors and other relevant contractors shall adhere to the following scope of works:

a) Within the maintenance term of construction works, a construction contractor is responsible to imperatively repair and eliminate defects and damage relating to construction works (if any) due to their defaults within twenty-one (21) days that begins with the receipt of the project owner and PMU, as well as cover all remedial expenses; Within the aforementioned period, if the contractor fails to carry out or delay their maintenance task, the project owner and PMU are vested with the right to use this maintenance sum in order to sign a contract for remedy and repair with other contracting entities.

b) Within the maintenance term of construction works, the construction contractor has the right to refuse to perform the maintenance task when defects and damage to such construction works are not caused by their faults but by force majeure as agreed upon in the contract.

c) After ending the maintenance term, if any defect or damage to the construction quality is blamed on the construction contractor or any other contractor concerned, they must remain responsible for ensuring construction works meet accepted quality and taking remedial actions against such defects and damage in proportion to their specified scope of works stipulated by laws.  In addition, given the severity of violations, contractors shall be prone to any punitive action as prescribed by laws.

2. The owner and PMU of construction projects shall be obliged to perform the following scope of works: 

a) Incorporate the terms and conditions on the maintenance of construction works as per the contents provided for in this Decision into the invitation for bid in order to select the competent construction contractor and proceed to conclude the contract for the project execution.

b) Guarantee the fulfillment of obligations to maintain the construction works by means of an unconditional performance bond opened at the bank permitted by the project owner, PMU or a cash amount retained in the payment process.

c) Within the valid maintenance term, cooperate with the unit in charge of managing the operation and utilization of construction works in carrying out the regular inspection and detection of defects, damage of construction works (if any) in order to request the construction contractor to carry out complete repairs and overhauls. Within a period of twenty-one (21) days that begins with the date on which the request for construction works maintenance is sent, if the contractor fails to carry out or delay their maintenance obligations, the sum of money coming from the performance bond shall be used to sign a contract with other parties to carry out the timely repair and overhaul in order to ensure the normal operation of construction works and traffic safety.

d) Strictly supervise and conduct the acceptance testing for the repair and overhaul works within the maintenance term with the aim of maintaining the accepted quality standards for construction works, and simultaneously seek the permission from the unit in charge of managing the operation and utilization of construction works prior to the confirmation of the completion of maintenance works.

dd) After confirming the completion of maintenance works, the owner and PMU must enter into the termination of the performance bond or reimburse the sum of money put up as collateral to the contractor in accordance with laws.

e) When the maintenance term expires and if there is any unsolved defect and damage to construction works, the Head of project owner, PMU and officers directly in charge of project management must bear accountability (if they are concerned), and each violation shall, depending on the severity, be handled in accordance with laws.

3. The investor of construction projects in the form of a BOT contract shall adhere to the following scope of works:

a) The Ministry of Transport shall encourage investors to incorporate the terms and conditions on the maintenance of construction works as per the contents provided for in this Decision into the construction contract.

b) Perform the operation and maintenance tasks in accordance with BOT contract signed by contracting parties.

c) Within the term when construction works are operated for the business purpose, the investor shall be responsible for imperatively carrying out the complete repair and overhaul of defects and damage to such construction works (if any) within a period of twenty-one (21) days that begin with the receipt of the notification sent by the competent authority and Directorate for Roads of Vietnam; within the aforementioned period, if the investor delays carrying out the repair and overhaul works, then the toll collection shall be suspended till the completion of such repair and overhaul works, and the toll collection term agreed in the BOT contract shall not be extended.

4. The incorporation designated to invest in the construction of road infrastructure shall adhere to the following scope of works:

a) Incorporate the terms and conditions on the maintenance of construction works as per the contents provided for in this Decision into the invitation for bid in order to select the competent construction contractor and proceed to conclude the contract for the project execution.

b) Within the term when they manage and operate the construction works, the incorporation shall be responsible for imperatively carrying out the complete repair and overhaul of defects and damage to such construction works (if any) within a period of twenty-one (21) days that begin with the receipt of the notification sent by the Directorate for Roads of Vietnam; within the aforementioned period, if the incorporation delays carrying out the repair and overhaul works, then the head of the incorporation shall be accountable for his/her failure to perform the assigned duties.

5. The Directorate for Roads of Vietnam shall be responsible to:

a) Authorize trusted Bureau for Roads and Departments of Transport to manage the national highway: Take delivery of the construction works right after these are completed and brought into operation; immediately perform the management, operation and maintenance of road infrastructural facilities in accordance with the regulations laid down in the Circular No.52/2013/TT-BGTVT dated December 12, 2013.

b) Ensure none of traffic congestions and maintain traffic safety as well as timely deal with traffic accidents, defects and damage to construction works or a part of construction works which can pose a threat to the operation of construction works during the maintenance term.

c) Carry out the regular inspection and detection of any defects or damage (if any) in order to request the project owner, investor, incorporation and PMU to perform the prompt repair and overhaul.

d) Within a period of three (03) months before the maintenance term expires, the inspection of construction works and request for the complete repair and overhaul of any defect and damage (if any) from the project owner and PMU are required prior to the confirmation of completed maintenance works. By the end of the maintenance term, if any defect or damage is detected in terms of construction quality, Directorate for Roads of Vietnam along with the project owner and PMU must be jointly held accountable as stipulated at Point e Clause 2 of this Article.

6. Handling of any disputes over the quality of construction works during the maintenance term:

a) In course of implementation, project owner, investor, incorporation or PMU must send an immediate report on any problem relating to the quality of construction works during the maintenance term to the Directorate for Roads of Vietnam, the Ministry of Transport to seek their advice on possible solutions.

b) The Directorate for Roads of Vietnam shall handle disputes over the quality of construction works within their authority s area during the maintenance term.

c) The Transport Engineering Construction and Quality Management Bureau shall take the initiative in advising any solution to disputes over the quality of construction works within their authority s area of the Ministry of Transport during the maintenance term.

Article 5. Effect and transitional provisions

1. This Decision shall take effect from the signing date.

2. In the course of implementation, in addition to complying with regulations set out in this Decision, relevant entities shall be responsible for complying with relevant laws; promptly reporting any difficulty that arises to the Ministry of Transport for consideration and decision.

3. Transition:

a) In respect of the expansion of the National Highway No.1 stretched from Thanh Hoa to Can Tho and Ho Chi Minh road passing through the Central Highlands, funded by the government bonds under the contract signed prior to the effective date of this Decision: the project owner, PMU must review the existing construction contract and enter into the negotiation with the contractor to amend or supplement the provision on maintenance works in accordance with regulations set out in this Decision for the purpose of implementation. 

b) In respect of the expansion of the National Highway No.1 stretched from Thanh Hoa to Can Tho and Ho Chi Minh road passing through the Central Highlands, performed in the form of a BOT contract concluded prior to the effective date of this Decision: the management unit of public-private investment projects in charge of cooperating with PMUs in reviewing the existing BOT contract and enter into the negotiation with the investor to amend or supplement the provision on the area of responsibility of the investor for the operation and maintenance of construction works over the period for which such works are brought into operation for the business purposes in accordance with the regulations laid down in this Decision.

c) In respect of other construction projects after a bidding process and effective contract signed prior to the effective date of this Decision: Interested parties continue to conform to their rights and responsibilities relating to the construction maintenance as agreed upon in the invitation for bid or contractual terms and conditions. 

4. Heads of the Ministry’s Office, Inspectorate, Services affiliated to the Ministry and Transport Engineering Construction and Quality Management Bureau, Management Unit of public – private investment projects, Directorate for Roads of Vietnam, specialized management Bureaus, the Departments of Transport, project owners, investors, incorporations and PMUs tasked with the management of construction projects and other relevant entities shall assume responsibility for enforcing this Decision./.

The Minister

Dinh La Thăng