Decision No. 64/2007/QD-BGTVT dated December 28, 2007 of the Ministry of Transport promulgating the Regulation on assignment and authorization or tasks to project management units in the construction investment management of projects of which the investor is the Ministry of Transport

DECISION

PROMULGATING THE REGULATION ON ASSIGNMENT AND AUTHORIZATION OV TASKS TO PROJECT MANAGEMENT UNITS IN THE CONSTRUCTION INVESTMENT MANAGEMENT OF PROJECTS OF WHICH THE INVESTOR IS THE MINISTRY OF TRANSPORT

THE MINISTER OF TRANSPORT

Pursuant to Construction Law No. 16/2003/QH11 of November 26, 2003;

Pursuant to Bidding Law No. 61/2005/QH11 of November 29, 2005;

Pursuant to the Governments Decree No. 34/2003/ND-CP of April 4, 2003, defining the functions, tasks, powers and organizational structure of the Ministry of Transport;

Pursuant to the Governments Decrees No. 16/2005/ND-CP of February 7, 2005, on management of work construction investment projects; and 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 Governments Decree No.209/2004/ND-CP of December 16, 2004, on management of construction work quality;

Pursuant to the Governments Decree No. 111/2006/ND-CP of September 29, 2006, guiding the implementation of the Bidding Law and the selection of construction contractors under the Construction Law;

Pursuant to the Governments Decree No. 131/2006/ND-CP of November 9, 2006, promulgating the Regulation on management and use of official development assistance;

Pursuant to the Governments Decree No. 99/2007/ND-CP of June 13, 2007, on management of work construction investment expenses;

At the proposal of the Director of the Transport Work Quality Inspection and Management Department,

DECIDES:

Article 1. To promulgate together with this Decision the Regulation on assignment and authorization of tasks to project management units in the construction investment management of projects of which the investor is the Ministry of Transport.

Article 2. This Decision takes effect 15 days after its publication in CONG BAO.

Article 3. The director of the Office, the Chief Inspector, and directors of departments of the Ministry, the director of the Transport Work Quality Inspection and Management Department, project management units managing projects under the Ministrys assignment, heads of concerned agencies, and concerned organizations and individuals shall implement this Decision.

REGULATION

ON ASSIGNMENT AND AUTHORIZATION OF TASKS TO PROJECT MANAGEMENT UNITS IN THE CONSTRUCTION INVESTMENT MANAGEMENT OF PROJECTS OF WHICH THE INVESTOR IS THE MINISTRY OF TRANSPORT
(Promulgated together with the Transport Ministers Decision No. 64/2007/QD-BGTVTof December 28, 2007)

Chapter I

GENERAL PROVISIONS

Article 1. Scope of regulation

1. This Regulation provides for the assignment and authorization of a number of the investors tasks and powers to project management units under the Ministry of Transport (below referred to as PMU for short) for projects of which the investor is the Ministry of Transport that directly manages projects.

2. The management of official development assistance-funded projects (below referred to as ODA projects for short) of which the investor is the Ministry of Transport complies with this Regulation and Vietnamese laws on ODA project management and treaties on ODA which Vietnam has signed.

When treaties on ODA which Vietnam has signed otherwise provide for, those treaties prevail.

3. For projects with particular characteristics, based on specific conditions and PMUs capacity, the Ministry of Transport shall assign and authorize specific tasks to PMUs in addition to the tasks assigned and authorized under this Regulation.

Article 2. Subjects of application

1. This Regulation applies to agencies, organizations and individuals involved in the work construction investment management of projects of which the investor is the Ministry of Transport.

2. PMUs shall perform functions, tasks and powers according to the Ministry of Transports regulations and take responsibility before law and the Ministry within their authorized tasks and powers prescribed by this Regulation.

Chapter II

INVESTMENT PREPARATION STAGE

Article 3. The Ministry of Transport assigns and authorizes the following tasks to PMUs in the investment project preparation stage:

1. Selection of consultants for project formulation:

a/ Case of bidding for selection of consultants for project formulation:

- To make project outlines and cost estimates for investment project formulation survey, prepare bidding invitation dossiers, draw up bidding plans and submit them to the Ministry for approval (or for submission to a competent authority for approval).

- To organize biddings and submit bidding results to the Ministry for approval.

b/ Case of designation of consultants for project formulation:

- To prepare dossiers of designation of consultants for project formulation and submit them to the Ministry of Transport for approval (or for submission to a competent authority for approval).

- To direct consultants in making project outlines and cost estimates for project formulation survey, appraise and submit them to the Ministry for approval.

2. Investment project formulation:

a/ To formulate investment projects according to each prescribed period (preliminary, mid-term and final reports) and be responsible for the volume, quality and progress of project implementation.

b/ To collect opinions and comments on projects from functional agencies, ministries, branches and localities according to regulations, for sum-up and inclusion into projects, and submit them to the Ministry for approval or for submission to the Prime Minister for approval.

c/ To make reports on investment capital realization plans and investment evaluation supervision.

3. Investment project verification and appraisal:

a/ To examine and be responsible for project contents and quality before submitting them to the Ministry for appraisal and approval.

b/ When PMUs are incapable of conducting project appraisal, or for large-scale or complex projects, to request the Ministrys in-principle approval for hiring consultancy organizations or individuals to appraise projects.

4. Adjustment of investment projects and total investment:

a/ PMUs shall make proposals which must specify the reasons and necessity for and contents of, project adjustment or supplementation, cost estimates, and propose funding sources, and submit them to the Ministry for consideration and in-principle approval in order to carry out prescribed procedures for supplementing or adjusting projects or adjusting the total investment.

b/ For adjustments to a project which neither affect the projects location and scale nor raise its total investment. PMUs shall approve design adjustments in accordance with Articles 6 and 10 of this Regulation.

5. PMUs are authorized to sign contracts with, take over projects from, and make payment to, contractors in the investment preparation stage.

Chapter III

INVESTMENT IMPLEMENTATION STAGE

Article 4. The Ministry of Transport assigns and authorizes the following tasks to PMUs in the investment implementation stage:

1. The Ministry of Transport authorizes PMUs to discharge all powers and responsibilities of an investor under the laws on construction investment management and bidding and relevant regulations with respect to work construction investment projects of which the investor is the Ministry of Transport, except for contents prescribed in Article 5 of this Regulation.

2. Certain specific tasks and powers are assigned and authorized to PMUs in Articles 6 thru 13 of this Regulation.

Article 5. Contents for which the Ministry does not authorize and assign PMUs to prepare procedures and dossiers to be submitted to the Ministry for decision in the investment implementation stage

1. Appraising and approving outlines, cost estimates for design survey and technical designs, cost estimates or total cost estimates (for three-step designed works), construction drawing designs, cost estimates or total cost estimates (for two-step designed works).

2. Appraising and approving construction drawing designs of three-step designed works for which the approval authority (other than PMUs) has been determined by the Ministry in investment decisions or technical design decisions.

3. PMUs shall take full responsibility for complying with procedures for and ensuring the quality of, dossiers submitted for approval.

Article 6. Appraisal and approval of construction drawing designs and construction organization designs of three-step designed works

Except for works of which the Ministry has determined the authority to appraise and approve construction drawing designs (for three-step designed works) in technical design approval decision, the Minister shall authorize PMU general directors to appraise and approve construction drawing designs and construction organization designs (for three-step designed works) on the principles of ensuring the conformity with approved technical designs and complying with the provisions on design adjustment in Article 10 of this Regulation.

Article 7. Site clearance, resettlement and construction plan preparation

1. PMUs shall perform tasks and exercise powers of a project investor according to current regulations on site clearance; PMUs shall monitor, supervise and support localities in site clearance in order to ensure the project implementation progress.

2. For ongoing projects or bidding packages in which site clearance has not been separated into an independent sub-project: PMUs being standing members of site clearance councils shall assist site clearance council chairmen in drawing up compensation, support and resettlement plans; and ensure sufficient funds for prompt payment of compensation, support and resettlement costs.

3. For projects or bidding packages for which site clearance is carried out under the Prime Ministers Document No. 1665/TTg-CN of October 17, 2006, (site clearance is separated into an independent sub-project to be implemented by localities), PMUs shall implement the following contents:

a/ Supplying necessary documents and plans on project construction schedules and coordinating with localities in carrying out procedures for determining land recovery policies, announcing, deciding on land recovery and allocating land to projects according to law. Placing site clearance markers for handover to localities as the basis for preparing overall site clearance schemes (including acceptance and approval of outlines on placement of site clearance markers and work boundary markers).

b/ Drawing up plans on annual allocation of site clearance funds for transfer to localities; ensuring sufficient funds for localities to promptly pay compensation, support and resettlement costs for people with recovered land.

c/ Carrying out prescribed project adjustment procedures if the site clearance work volume or compensation, support and resettlement expenses exceed the level specified in the project total investment; incorporating the final settlement of site clearance costs implemented by localities into the final settlement of projects.

4. Particular items and contents of site clearance (such as relocation of railway signal systems, fuel pipes or national communication lines) should be separated from site clearance sub-projects when it is impractical to assign them to localities. After getting the Prime Ministers permission, the Ministry of Transport shall assign this task to PMUs for faster project implementation.

Article 8. Contractor selection during the investment implementation

1. The Ministry assigns and authorizes PMUs to perform the following tasks in contractor selection:

a/ Deciding on the establishment of bidding expert teams;

b/ For open bidding: Appraising and approving bidding interest invitation dossiers, prequalification invitation dossiers, lists of contractors invited to participate in bidding and lists of contractors meeting prequalification requirements.

c/ For restricted bidding: Selecting and approving lists of eligible bidders.

d/ Appraising and approving bidding invitation dossiers for verification, audit and site clearance consultancy services and work insurance contractors for group-B and -C projects.

dd/ Appraising and approving lists of contractors meeting technical requirements and contractor ranking lists.

e/ Approving requirement dossiers for bidding packages to which contractor designation and competitive offering in goods procurement are applied.

f/ Appraising and approving contractor selection results for verification, and audit and site clearance consultancy services and work insurance contractors for group-B and -C projects.

g/ Approving contractor designation results for cases specified in Points a and e, Clause 1, Article 20 of the Bidding Law.

2. For replacement and supplementation of subcontractors or transfer of construction volumes between partnership contractors or principal contractors and subcontractors specified in bid dossiers and contracts during project implementation

a/ PMUs shall manage, monitor and inspect contractors in implementing bidding packages and projects according to requirements on work schedule and quality specified in signed contracts and in complying with current state regulations on work construction investment management.

To strictly prohibit arbitrary replacement or supplementation of subcontractors or transfer of construction volumes between partnership contractors or principal contractors and subcontractors specified in bid dossiers and signed contracts.

b/ Based on construction realities, when it is necessary to replace or supplement subcontractors or transfer construction volumes between contractors for bidding packages, the Ministry of Transport may assign and authorize PMUs:

- To consider and accept contractors proposal to supplement subcontractors or transfer contracted construction volume if the volume value is less than 10% of the construction value to be implemented by principal contractors (after subtracting the work volume to be implemented by subcontractors under signed original contracts).

- When construction volumes to be adjusted or supplemented are valued at between 10% and 40% of the construction value to be implemented by principal contractors (after subtracting the work volume to be implemented by subcontractors under signed original contracts), PMUs shall make proposals on subcontractor replacement or supplementation to the Ministry; the Ministry shall, after issuing its in-principle written approval, authorize PMUs to decide to supplement subcontractors or transfer contracted volumes.

- When construction volumes to be adjusted or supplemented are-valued at more than 40% of the construction value to be implemented by principal contractors (after subtracting the work volume to be implemented by subcontractors under signed original contracts), PMUs shall make proposals on adjustment options by supplementing subcontractors or terminating contracts for selection of substitute contractors to the Ministry; the Ministry shall, after issuing its in-principle written approval, authorize PMUs to decide to supplement subcontractors, or prepare dossiers of contract termination for selection of substitute contractors according to current regulations, and submit them to the Ministry for decision.

c/ After deciding to supplement subcontractors or transfer construction volumes between contractors, PMUs shall carry out procedures for signing supplementary contract appendices according to regulations.

3. In addition to the contents specified above, the Ministry may assign and authorize PMUs to carry out other tasks within the scope of rights and obligations of investors prescribed in Article 61 of the Bidding Law and the Governments Decree No. 111/2006/ND-CP of September 29, 2006, guiding the implementation of the Bidding Law and the selection of construction contractors under the Construction Law (below referred to as Decree No. 111/2006/ND-CP for short) and current regulations on contractor selection

Article 9. Contract negotiation, finalization and signing and contract modification and supplementation

1. The Ministry assigns and authorizes PMUs to negotiate and sign contracts with contractors (consultants, suppliers and constructors) based on competent authorities concerned decisions. PMUs are responsible for contract contents, signing contracts with selected contractors and fulfilling commitments specified in contracts signed with contractors.

2. For contract modification and supplementation: The Ministry assigns and authorizes PMUs to negotiate and sign supplementary contract appendices with contractors (consultants, suppliers and constructors) based on the Ministrys decisions on, adjustment of projects, their total investment, designs and cost estimates, and contract modification approval.

3. PMUs shall approve adjusted project designs and cost estimates under the Ministrys authorization according to Clause 1, Article 10 of this Regulation. At the same time, PMUs shall collect and submit dossiers to the Ministry for appraisal and approval of adjusted contract values according to regulations to provide a basis for payment and final settlement.

Article 10. Adjustment of designs and cost estimates, handling of arising work volumes as compared with designs approved by the Ministry

1. The Ministry assigns and authorizes PMUs to appraise and approve adjustments of technical designs (for three-step designed works), construction drawing designs (for two-step designed works), and differences in approved cost estimates on the conditions that these adjustments do not affect the project scale and approved technical norms and the changed value of cost estimates (increased or decreased) for each adjusted work item does not exceed 10% of its value in the bidding package and the difference value does not exceed 1% of the bidding package value or VND 500 million. Under any circumstances, total approved adjustments in a bidding package must not exceed the bidding package reserve.

PMUs shall make reports on results of appraisal conducted based on the above contents and insert them in dossiers of adjustment appraisal and approval.

When approved aggregate adjustments in a bidding package exceed its reserve, PMUs shall make written proposals to the Ministry for permission of implementation of these adjustments enclosed with their cost estimates (which must not prompt an excess of the approved total investment) and may only implement them according to regulations after getting the Ministrys written in-principle approval.

When these adjustments would cause an excess of a projects total investment, PMUs shall prepare dossiers of total investment adjustment and submit them to the Ministry for approval to serve as the basis for implementation of subsequent steps.

2. The Ministry assigns and authorizes PMUs to appraise and approve additional survey work volumes in the construction drawing design step (for three-step designed works) and complete procedures for supplementing contracts with contractors for works of which the Ministry has authorized PMUs to appraise and approve construction drawing designs prescribed in Article 6 of this Regulation.

When large survey work volumes arise in the above construction drawing design step or technical design survey is inadequate or inaccurate, PMUs shall request the Ministrys in-principle opinions for PMUs to approve additional survey work volumes according to regulations.

3. For contents within PMUs deciding competence under the above task assignment and authorization provisions but adjustments to designs and cost estimates are complicated and need the Ministrys opinions, PMUs shall make written requests for the Ministrys opinions before appraising and approving adjusted designs according to regulations.

4. For design adjustments outside the above scope of task assignment and authorization. PMUs shall complete dossiers and submit them to the Ministry for approval according to regulations.

Article 11. Project asset management and Final settlement of completed projects

1. Asset management: PMUs shall bear all the investors responsibilities according to law for managing assets (including assets of PMUs and assets of projects) during the project implementation and collect them after the project completion. PMUs shall submit contents of asset management during the project implementation and asset disposal after the project completion to the Ministry for decision or for submission to a competent authority for decision according to regulations.

2. Final settlement of completed projects capital investment: After completed projects are put into use, the Minister assigns and authorizes PMU general directors to complete dossiers and make reports on final settlement of completed projects and submit them to the authority with investment-deciding competence for approval according to regulations.

Article 12. Take-over, completion, operation and maintenance of works

1. PMUs shall perform the investors duties related to construction work take-over and completion prescribed in Articles 23 thru 28 of the Governments Decree No. 209/2004/ND-CP of December 16, 2004, on construction work quality management (below referred to Decree No. 209/2004/ND-CP) and current regulations.

2. For works put into use, the Ministry assigns PMUs to complete procedures, sign minutes of completion of work items or works as the basis for completing dossiers and procedures and submit them to the Ministry for decision to put works into use.

3. PMUs shall perform the investors tasks related to work warranty prescribed in Articles 29 and 30 of Decree No. 209/2004/ND-CP and current regulations.

Article 13. Inspection, audit and working with the State into Appraisal Council, the State Acceptance Council and inspection councils and agencies, on work quality.

1. PMUs shall justify at request and directly, work with inspection and auditing agencies on projects involved in or subject to inspection and audit. When necessary, PMUs shall report to and request the Ministrys opinion and its functional agencies coordination.

2. PMUs may represent the investor to work with the State Appraisal Council, the State Acceptance Council, other councils and inspection agencies on work quality for projects subject to the above agencies inspection and examination. PMUs shall closely coordinate with the Ministrys advisory departments and bureaus and promptly report to the Ministry on contents and results of working with the above agencies.

Article 14. Reporting mechanism

1. PMUs shall make quarterly investment supervision reports in accordance with the Planning and Investment Ministrys Circular No. 03/2003/TT-BKH of May 19, 2003.

Investment supervision reports must list and update decisions on modification, supplementation, arising issues of project designs and cost estimates during the investment implementation to ensure tight control of the approved total investment and prompt proposal on adjustment in case of practical or future excess of the approved total investment; bidding result reports (for bidding packages with contractor selection results subject to approval of the Ministry) must update approval decisions during the bidding process, decisions on replacement and supplementation of contractors and supplementary contract appendices for sum-up and report to the Ministry.

2. PMUs shall make quarterly reports or extraordinary reports at the Ministrys request on results of performance of their assigned and authorized tasks.

3. In the course of performing their assigned and authorized tasks, PMUs shall promptly report to the Ministry on special or urgent matters or other complicated issues arising from the implementation for instruction and coordination of settlement.

Chapter IV

IMPLEMENTATION PROVISIONS

Article 15. Inspection and supervision by the Ministry and the Ministers assistant agencies

The Ministry of Transport shall conduct regular and extraordinary inspection of transport construction projects during the investment implementation.

In order to inspect and supervise PMUs performance of their assigned and authorized tasks, the Ministry of Transport shall assign tasks to the Ministers advisory and assistant agencies in work construction investment management of projects of which the investor is the Ministry of Transport as follows:

1. The Planning Department shall take the prime responsibility for inspecting and supervising, and advising the Minister on handling of, contents concerning project investment preparation and investment project adjustment.

2. The Transport Work Quality Inspection and Management Department shall take the prime responsibility for inspecting and supervising, and advising the Minister on handling of, contents concerning the project investment implementation.

3. The Finance Department shall take the prime responsibility for inspecting and supervising, and advising the Minister on handling of, contents on insurance, audit, final settlement of completed projects and asset management concerning project implementation and completion.

Article 16. Organization of implementation

1. Concerned agencies, organizations and individuals shall comply with the States current regulations, the Ministry of Transports regulations and this Regulation in the course of management of projects of which the investor is the Ministry of Transport.

2. Heads of PMUs shall take personal responsibility before the Minister and law for the contents assigned and authorized to them.

3. In the course of implementation, agencies, organizations and individuals should promptly submit written reports on arising problems to the Ministry of Transport for consideration, guidance and appropriate amendment or supplementation.