Decree No. 112/2006/ND-CP dated September 29, 2006 of the Government amending and supplementing a number of articles of Decrre No. 16/2005/ND-CP on management of investment projects on the construction of works

DECREE

AMENDING AND SUPPLEMENTING A NUMBER OF ARTICLES OF DECRRE NO 16/2005/ND-CP ON MANAGEMENT OF INVESTMENT PROJECTS ON THE CONSTRUCTION OF WORKS

THE GOVERNMENT

Pursuant to the December 25, 2001 Law on Organization of the Government;

Pursuant to the November 26, 2003 Construction Law;

At the proposal of the Construction Minister;

DECREES:

Article 1. To amend and supplement a number of articles of the Government's Decree No. 16/2005/ND-CP of February 7,2005, on management of investment projects on the construction of works as follows:

1. To amend and supplement Clause 1 of Article 3 as follows:

"1. For projects funded with state budget capital, investors of construction works shall be decided by investment deciders before construction investment projects are formulated in accordance with the provisions of the State Budget Law.

a) For projects in which the investment is decided by the Prime Minister, investors shall be ones of the following agencies or organizations: ministries, ministerial-level agencies, government-attached agencies, other central-level agencies (collectively referred to as ministerial-level agencies), People's Committees of the provinces or centrally-run cities (collectively referred to as provincial-level People's Committees) and state enterprises.

b) For projects in which the investment is decided by ministers, heads of ministerial-level agencies or presidents of provincial-level People's Committees, investors shall be units managing and/or using the works.

When units managing and/or using the works are yet identified or fail to meet the conditions to act as investors, investment deciders shall select other qualified units to act as investors. When units managing and/or using the works fail to meet the conditions to act as investors, investment deciders shall assign the units which will manage and/or use the works the task to norminate persons to join investors in managing the investment in construction of works and receive the works for management and use upon their completion."

2. To amend and supplement Clause 1 of Article 4 as follows:

“1. For important national projects defined in the National Assembly's Resolution No. 66/2006/QH11,    investors shall have to make investment reports and submit them to the Government for consideration and submission to the National Assembly for adoption of investment undertakings and permission of investment. For other projects, investors are not required to make investment reports.

For group-A projects not included in branch plannings already approved by competent authorities, investors shall have to report them to the branch­managing ministries for consideration and addition to the plannings according to their competence or submission to the Prime Minister for approval the planning addition before formulation of construction investment projects.

The location and size of construction works must conform with the construction plannings already approved by competent authorities; if the works are not yet included in the construction plannings, the approval by provincial-level People's Committees is required."

3. To amend and supplement Article 7 as follows:

" Article 7.- Contents of the basic design of a project

1. Contents of the basic design of a project shall comprise explanations and drawings, reflecting designing solutions and serving as a basis for the determination of total investment amount and for the implementation of subsequent designing steps.

2. Explanations on the basic design shall have the following contents:

a) The characteristics of the total ground area; the plan on lines of works, for works to be constructed in lines; the architectural plan for works with architectural requirements; the technological plan and diagram, for works with technological requirements;

b) The main force-bearing structures; the plan on fire and explosion prevention and fighting and environmental protection; the technical system and the technical infrastructure system of the works and points of connection with the technical infrastructures outside fences;

c) The description of load and impacts on the works;

d) The list of applicable rules and standards.

3. The basic design drawing shall be shown with major dimensions, including:

a) The drawing of the total ground area, the plan on lines of works, for works to be constructed in lines;

b) The drawing of the architectural plan, for works with architectural requirements;

c) The technological diagram, for works with technological requirements;

d)The drawing of the main force-bearing structures of the works; the drawing of the technical system and the technical infrastructure system of the works."

4. To amend and supplement Article 8 as follows:

"Article 8.- Dossiers of construction investment projects to be submitted for approval

The dossier of a construction investment project to be submitted for approval shall comprise:

1. The report on the project applied for approval, made according to the form in Appendix 2 to this Decree (not printed herein);

2. The project documents, including the written explanations and the basic design;

3. The evaluation documents of the competent authorities;

4. The written permission of the investment, for imrortant national projects; the written approval of planning addition, for group-A projects not yet included in branch plannings."

5. To amend and supplement Article 9 as follows:

"Article 9.- Competence to evaluate construction investment projects

1. Investment deciders shall have to organize the evaluation of projects before approval. Project evaluators shall be professional units of investment deciders. These professional units shall have to send project dossiers to competent authorities defined in Clause 6 of this Article for evaluation of basic designs and to concerned agencies for comments for evaluation of projects.

2. The Prime Minister shall set up the State Council for Evaluation of Investment Projects to organize the evaluation of projects the investment in which is decided by the Prime Minister and of other projects when deeming it necessary.

3. For projects funded with the state budget capital:

a) Ministerial-level agencies shall organize the evaluation of projects the investment in which they decide. Project-evaluation organizers shall be professional units of investment deciders.

b) Provincial-level People's Committees shall organize the evaluation of projects the invetsment in which they decide. Provincial/municipal Planning and Investment Services shall act as organizers of the evaluation of those projects.

People's Committees of district or commune level shall organize the evaluation of projects with investment therein being decided by themselves. The major project evaluators shall be units attached to investment deciders which have the function to manage budget plans.

4. For other projects, investment deciders shall organize the evaluation of projects by themselves.

5. For investment projects on construction of particular works, the project evaluation shall comply with the provisions of the Government's Decr~e No. 71/2005/ND-CP of June 6, 2005.

6. Competence to evaluate basic designs:

a) For important national projects and group-A projects, the evaluation shall be conducted as follows regardless of their capital sources:

The Industry Ministry shall organize the evaluation of the basic designs of investment projects on the building of mines or oil and gas works, power plants, electricity transmission lines, transformer stations, production of chemicals or industrial explosives, machine building, metallurgy or specialized industrial works;

The Agriculture and Rural Development Ministry shall organize the evaluation of the basic designs of investment projects on the building of irrigation works and dykes;

The Transport Ministry shall organize the evaluation of the basic designs of investment projects on the building of traffic works;

The Construction Ministry shall organize the evaluation of the basic designs of investment projects on the building of civil works, industrial works on building materials, urban technical infrastructures and investment projects on the building of other works as requested by the Prime Minister.

Particularly for investment projects on the building of civil works of less than 20 stories each, their basic designs shall be evaluated by provincial/municipal Construction Services.

For investment projects on the building of works of different types, the ministry assuming the prime responsibility for evaluating their basic designs shall be the one performing the state management over the work of the type decisive to the nature and objective of the projects. Such ministry shall be responsible for gathering written opinions of the specialized works­management ministries and branches as well as concerned agencies for the evaluation of the basic designs.

b) For group-B or group-C projects, regardless of their capital sources and except for those defined at Points c and d of this Clause, the evaluation of their basic designs is conducted as follows:

Provincial/municipal Industry Services shall organize the evaluation of the basic designs of investment projects on the building of mines or oil and gas works, power plants, electricity transmission lines, transformer stations, production of chemicals or industrial explosives, machine building, metallurgy, and specialized industrial works;

Provincial/municipal Agriculture and Rural Development Services shall organize the evaluation of the basic designs of investment projects on the building of irrigation works and dykes;

Provincial/municipal Transport Services shall organize the evaluation of the basic designs of investment projects on the building of traffic works;

Provincial/municipal Construction Services shall organize the evaluation of the basic designs of investment projects on the building of civil works, industrial works on building materials and investment projects on the building of other works as requested by presidents of provincial/municipal People's Committees.

Particularly for basic designs of investment projects on the building of urban technical infrastructures, provincial/municipal Construction Services or Traffic and Public Works Services or Transport Services shall organize the evaluation thereof in accordance with their functions and tasks defined by provincial-level People's Committees.

For investment projects on the building of works of different types, the provincial/municipal Service assuming the prime responsibility for evaluating their basic designs shall be the one which functions to manage the work of the type decisive to the nature and objective of the projects. That Service shall be responsible for gathering written opinions of provincial/ municipal Services managing specialized works and of concerned agencies for the evaluation of the basic designs.

c) For group-B or group-C projects managed by the Industry Ministry, the Agriculture and Rural Development Ministry, the Transport Ministry, the Construction Ministry, economic groups or state corporations, they shall themselves organize the evaluation of their basic designs after consulting localities on the construction plannings and environmental protection.

d) For group-B or group-C projects on the building of works in lines running through many localities, the ministries defined at Point a of this Clause shall organize the evaluation of their basic designs and be responsible for gathering opinions of the localities where exist the construction works regarding the construction plannings and environmental protection.

7. The agencies organizing the evaluation of basic designs of projects shall have to send the evaluation results to the units assuming the prime responsibility for project evaluation. The time limit for the evaluation of basic designs shall not exceed 30 working days, for important national projects, 20 working days, for group-A projects, 15 working days, for group-B projects, and 10 working days, for group-C projects, counting from the date of receipt of complete and valid dossiers."

6. To amend and supplement Article 10 as follows:

“Article 10.- Contents of evaluation of construction investment projects

1. Contents of evaluation of construction investment projects by investment deciders:

a) Examining factors which ensure the projects' efficiency, including the necessity of investment; the input elements of the projects; the size, capacity, technologies, duration of, and schedule for, project execution; analyzing the financial status and socio­economic efficiency of the projects;

b) Examining factors which ensure the projects' feasibility, including their compatibility with plannings; the land and natural resource use demand (if any); the capability of ground clearance and mobilization of capital to ensure the projects' schedules; the investors' . managerial experience; the results of the evaluation of the basic designs; the capability of repaying loan capital; t~e solutions to fire and explosion prevention and fighting; the factors which may affect the projects such as defense, security and environment, based on the written opinions of concerned agencies and relevant provisions of law.

2. Contents of the evaluation of basic designs by competent authorities:

a) The compatibility of basic designs with the construction plannings; the connection with technical infrastructures outside fences;    

b) The application of rules and standards on construction, environment, fire and explosion prevention and fighting;

c) The operational capacity conditions of consultancy organizations, professional capacity of individuals engaged in formulating basic designs according to regulations."

7. To amend and supplement Clauses 1 and 4 of Article 12 as follows:

a) To amend and supplement Clause 1 as follows:

"1. When investing in the construction of the following works, investors shall not have to formulate investment projects but have to make economic and technical reports on the construction of works and submit them to the investment deciders for approval:

a) Works for religious purposes;

b) Works to be constructed, renovated, repaired or upgraded, each having a total investment amount of under VND 7 billion, compatible with the socio­economic development plannings, branch plannings or construction plannings, except for cases where investment deciders deem the formulation of construction investment projects necessary and request it."

b) To amend and supplement Clause 4 as follows:

" Investors shall have to organize the evaluation of the construction drawing designs for investment deciders to approve the economic-technical reports."

8. To amend and supplement Clause 1 of Articl~ 13 as follows:

"1. Construction investment projects for which investment decisions have been issued may be adjusted in one of the following cases:

a) They are affected by natural disasters such as earthquake, typhoon, flood, tsunami; enemy sabotages or other force majeure events;

b) There appear factors which may bring about higher benefits to the projects ;

c) The construction plannings see changes which directly affect the locations, scale, nature or objectives of the projects."

9. To amend and supplement Clause 1 of Article 17 as follows:

"1. Before commencing the construction of works, including works of which the basic designs have been evaluated by competent authorities, investors must obtain construction permits, except for the construction of the following works:

a) Works involving state secrets, works built under urgent orders, make-shift works to serve the construction of principal works;

b) Works to be built in lines not running through urban centers but complying with the approved construction plannings, works under construction investment projects already approved by competent state agencies;

c) Works to be built under projects on urban centers, industrial parks or residential quarters with their 1/500­scale detailed construction plannings already approved by competent state agencies;

d) Works of repair, renovation or installation of interior equipment without changing the architecture, force-bearing structures and safety of the existing works;

®) Small-sized technical infrastructure works located in deep-lying or remote communes;

e) Separate houses in remote or deep-lying areas outside concentrated population spots; separate houses in rural population spots for which construction plannings are not yet approved."

10. To amend and supplement Clause 3 of Article 18 as follows:

"3. The design drawing displaying the locations of the level ground, the typical cross section and elevation and the foundation plan of the work; a plan on the locations or lines of works; a diagram on the systems of electricity supply and water drainage and supply and their technical connection points; photos of the present state (for repair and renovation works for which construction permits are required).

For works the basic designs of which have been evaluated by competent authorities, investors shall submit the results of evaluation of such basic designs instead of the documents mentioned in this Clause."

11. To amend and supplement Article 35 as follows:

“Article 35.- Forms of project management

1. Investment deciders shall decide on the forms of management of projects according to the provisions of Clause 2, Article 45 of the Construction Law.

2. When investors directly manage projects, they may set up project management units to assist them in assuming the prime responsibility for the management of projects. The project management units must be capable of organizing the management of the projects according to the investors' requirements. They may hire consultants to manage and supervise the performance of several tasks, which they do not have enough conditions or capabilities to perform, but must obtain the investors' consent.

For small-sized and simple projects with a total investment amount of under VND 1 billion each, investors may not set up project management units but use their professional apparatuses for project management and administration or hire professional and experienced persons to assist them in the management of the execution of projects.

3. When investors hire consultancy organizations for project management and administration, such consultancy organizations must have full conditions and capabilities to· organize project management, suitable to the projects' sizes and characteristics. The responsibilities and powers of project management consultancy organizations shall comply with the agreements between the two parties. Project management consutancy organizations may hire other consultancy organizations or consultants for project management but must get approval of the investors and ensure the compliance with contracts signed with the latter. In case of hiring consultancy organizations for project management, investors shall still have to use their professional units or designate units to be primarily responsible for inspecting and monitoring project management consultants in the performance of contracts. "

12. To amend and supplement Article 36 as follows:

"Article 36.- Tasks and powers of investors and project management units in cases where investors set up project management units

1. Investors shall perform tasks and exercise powers from the stages of project preparation and execution till the after-test acceptance and hand-over of projects for operation and use, ensuring the efficiency and feasibility of the projects as well as the observance of the provisions of law. Investors shall have to set up project management units to assist them in managing the execution of projects. The assignment of tasks and delegation of powers to project management units must be stated in their establishment decisions. Investors shall have to direct, inspect and take responsibility for the results of performance of tasks and exercise of powers by project management units.

2. Project management units shall perform tasks assigned and exercise powers delegated by investors. Project management units shall take responsibility before investors and before law for their assigned tasks and delegated powers."

13. To amend and supplement Article 37 as follows :

"Article 37.- Tasks and powers of investors and project management consultancy organizations in cases where investors hire project management consultants

1. Investors shall perform their tasks and exercise their powers from the stages of project preparation and execution till the after-test acceptance and hand­over of projects for operation and use, ensuring the efficiency and feasibility of the projects as well as the observance of the provisions of law. Investors shall select the form of and sign contracts with project management consultancy organizations which meet all capability conditions for organizing project management in order to assist them in managing the execution of projects. Investors shall have to inspect and monitor project management consultants in the performance of contracts.

2. Project management consultants shall perform their tasks and exercise their powers according to agreements in contracts between them and investors. Project management consultanfs----sJ1all also take responsibility before law and investors for the performance of contractual commitments."

14. To amend and supplement Clauses 2 and 5 of Article 43 as follows:

a) To amend and supplement Clause 2 as follows:

"2. The settled investment capital covers all lawful expenses made in the course of construction investment and putting of the concerned project into operation and use. Lawful expenses are those made in compliance with the approved designs and cost estimates, including adjusted and supplemented expenses or expenses made under signed contracts, in accordance with the provisions of law. For projects funded with state budget capital, the settled investment capital must not exceed the total investment capital amount already approved by competent authorities."

b) To amend and supplement Clause 5 as follows:

"5. Investors shall be responsible for compiling investment capital settlement dossiers for completed projects and submit them to competent persons for approval within 12 months, for important national projects and group-A projects, within 9 months, for group-B projects, and 6 months, for group-C projects, counting from the time the completed works are put into operation and use. Six months after decisions approving the final settlement of completed projects are issued, investors shall have to pay debts and finalize accounts of the projects at the payment and investment capital-lending agencies."

15. To amend and supplement Clause 1 of Article 46 as follows:

"1. Depending on the size, nature and implementation time requirements of each project, investors may sign contract with one or more than one principal contractor. Each principal contractor may work performance contract with one or more than one subcontractor but must obtain the investor's approval in the contract signed with the latter and ensure the compliance with the legal provisions on bidding."

16. To replace Appendix 1 on classification of construction investment projects, promulgated together with the Government's Decree No. 16/2005/ ND-CP of February 7, 2005, on management of investment projects on construction of works, with the Appendix on classification of construction investment projects promulgated together with this Decree.

Article 2. To annul Articles 24, 25, 26, 27, 28 and 29 on selection of contractors in construction activities in the Government's Decree No. 16/2005/ND-CP of February 7, 2005, on management of investment projects on construction of works.

Article 3. Transition handling

1. Construction investment projects, which had been approved before this Decree takes effect but have not yet been executed or are being executed, are not required to go through the project investment procedures while the subsequent jobs shall be performed in accordance with the provisions of this Decree.

2. Construction investment projects which have not yet been approved shall comply with the provisions of this Decree.

Article 4. Implementation provisions

This Decree shall take effect 15 days after its publication in "CONG BAO”.

The Finance Ministry shall have to guide the insurance in construction investment activities. The Construction Ministry shall have to set up a system of information on capabilities and operations of construction consultancy organizations and individuals as well as construction contractors nationwide, including foreign contractors involved in contruction in Vietnam.

Ministers, heads of ministerial-level agencies, heads of government-attached agencies, presidents of provincial/municipal People's Committees, chairmen of managing boards of state enterprises, and concerned organizations shall have to implement this Decree./.