Laws of Vietnam

THE MINISTRY OF CONSTRUCTION

CIRCULAR No.06/BXD-CSXD OF SEPTEMBER 25, 1997 GUIDING A NUMBER OF ISSUES ON THE MANAGEMENT OF CONSTRUCTION IN THE IMPLEMENTATION OF THE "REGULATION ON DOMESTIC INVESTMENT IN THE FORM OF BUILD- OPERATE- TRANSFER (B.O.T.) CONTRACTS" ISSUED TOGETHER WITH DECREE No.77-CP OF JUNE 18, 1997 OF THE GOVERNMENT

- Pursuant to Decree No.77-CP of June 18, 1997 of the Government promulgating the "Regulation on Domestic Investment in the Form of Build- Operate- Transfer (B.O.T.) Contracts";

- Pursuant to Decree No.42-CP of July 16, 1996 of the Government promulgating the Regulation on the Management of Investment and Construction and Decree No.92-CP of August 23, 1997 of the Government amending and supplementing a number of Articles of the Regulation on the Management of Investment and Construction issued together with Decree No.42-CP of July 16, 1996 of the Government;

- Pursuant to Decree No.15-CP of March 4, 1994 of the Government defining the functions, tasks, powers and organizational structure of the Ministry of Construction;

The Ministry of Construction provides guidance for the implementation of the "Regulation on Domestic Investment in the Form of Build- Operate- Transfer (B.O.T.) Contracts" regarding the following issues:

- The elaboration and evaluation of the construction plan in the pre-feasibility study and feasibility study reports of the B.O.T. project.

- The evaluation of the technical design and the total cost estimate of the project.

- The control of the project's quality.

I. ELABORATION AND EVALUATION OF THE CONSTRUCTION PLAN IN THE PRE-FEASIBILITY STUDY AND FEASIBILITY STUDY REPORTS OF A B.O.T. PROJECT

1. The elaboration of the construction plan in the pre-feasibility study report.

When drawing up the construction plan in the pre-feasibility study report, the State agency competent to sign the B.O.T. contract shall have to comply with the provisions of Section I, Appendix I of Circular No.09-BKH/VPTD of September 21, 1996 of the Ministry of Planning and Investment on "guidance for the elaboration and evaluation of investment projects and decision on the investment".

2. Drawing up the construction plan in the feasibility-study report.

When drawing up the construction plan in the feasibility study report, the B.O.T. enterprise shall have to comply with the provisions of Section II, Appendix I of Circular No.09-BKH/VPTD of September 21, 1996 of the Ministry of Planning and Investment on guidance for the elaboration and evaluation of investment projects and decision on the investment.

3. To draw conclusions on the evaluation of the project's construction, the competent State management agencies and the State agency competent to sign the B.O.T. contract shall have to base themselves on the territorial or branch development planning already ratified by the competent level, the certificate of planning for drawing up the project, Vietnam's construction standards and foreign project safety criteria or foreign criteria accepted by the Ministry of Construction.

II. EVALUATION OF THE CONSTRUCTION PROJECT'S TECHNICAL DESIGN AND TOTAL COST ESTIMATE

1. Organizing the evaluation of the technical design and total cost estimate.

1.1. The technical designs of all construction investment projects in the form of B.O.T. contracts, from all sources of capital and economic sectors, must be evaluated and approved by the State agency competent to sign B.O.T. contracts before the commencement of construction.

a/ For an investment project equivalent to Group A with at least 30% of its prescribed capital contributed by the State:

- If a bidder is appointed for the project (or bidding package), the technical design and the total cost estimate (or the cost estimate) of such project shall be approved by the State agency competent to sign the B.O.T. contract after the technical design is evaluated by the specialized agency and the total cost estimate is evaluated by the Ministry of Construction.

- If the project (or bidding package) is opened to bidding, the State agency competent to sign the B.O.T. contract shall approve the technical design after it has been evaluated by the specialized agency. The State agency competent to sign the B.O.T. contract shall send a set of the approved technical design dossier and the document ratifying the bidding result to the Ministry of Construction for monitoring and suggesting solutions when necessary.

b/ With regard to an investment project of Group A equivalent with the State's capital contribution accounting for less than 30% of the prescribed capital and Group B or Group C projects:

The State agency competent to sign the B.O.T. contract shall approve the technical design after it is evaluated by the specialized agency.

1.2. The specialized agency that evaluates the technical design is a specialized body of the State agency competent to sign the B.O.T. contract and approve the design. When conducting the evaluation, this agency may employ design consultancy organizations with legal person status to examine the essential contents or the entire designing dossier, depending on the requirements of each project; but the specialized agency evaluating the design must examine the dossier already examined by the design consultancy organization before submitting it to the State agency competent to sign the B.O.T. contract for approval. The above-said design consultancy organizations shall not examine the total cost estimate or the cost estimate of the project the technical design of which has been examined by them.

1.3. If the evaluation of the technical design involves other specialized construction branches, the evaluating agency shall have to abide by and comply with the ratified construction standards and technical norms of the concerned branch and shall take responsibility for its evaluation results.

1.4. The B.O.T. enterprise shall have to directly submit to the technical design evaluating agency 4 sets of the designing dossier (for Group A projects) or 3 sets of the designing dossier (for Group B and C projects) as prescribed in Point 2 of this Item.

1.5. The evaluated technical design dossier must be affixed with the seal of the evaluating agency. One set shall be returned to the B.O.T. enterprise, one shall be kept on file at the evaluating agency, one to be sent to the Ministry of Construction (for Group A projects), and the other to be sent to the People's Committee of the province or city directly under the Central Government where the investment project is to be executed for inspection, supervision and filing.

1.6. Time-limit for the evaluation of technical designs and total cost estimates:

This time-limit shall not exceed 40 days for Group A projects, 30 days for Group B projects and 20 days for Group C projects.

1.7. Time-limit for the approval of technical designs:

This time-limit shall not exceed 15 days for Group A and B projects and 10 days for Group C projects;

Past the above time-limits, if the technical design of the project is not approved, the approving agency shall have to reply in writing the B.O.T. enterprises, explaining the reason and clearly stating amendments to be made, then return the design dossier to the enterprises.

In case a dossier must be amended, supplemented or re-made, the time-limit for evaluation and approval shall be counted from the date of receipt of the readjusted and supplemented dossier.

2. Technical design dossier submitted for evaluation:

a/ Written documents:

- The application for technical design evaluation which shall be made according to the prescribed form;

- A brief description of the investment project, a copy of the document ratifying such investment project;

- Copies of the agreements of the State management agencies in charge of the fire and explosion prevention and fighting as well as environmental protection;

- The contract on the examination and the written conclusions of the design examining organization (if any);

- The list of technical norms of construction and the model designs to be used, the list of foreign norms used for designing which have been accepted by the Ministry of Construction, the software programs for designing the project, and the list of other design issues other than Vietnam's construction norms;

- A valid copy of the land allocation certificate or the land lease contract together with an extract of the administrative land map on 1/200-1/500 scale;

- The legal documents defining the legal status of the designing organization:

+Vietnamese design consultancy organizations involved in designing the project must have their consultancy and designing practicing certificates and suitable capabilities stated in such certificates for designing the project.

+ Foreign designing organizations that win a bid or are selected for designing the project must obtain practicing certificates in their native countries, have suitable capabilities for designing the project and must register at the Ministry of Construction (for Group A projects) or at provincial/municipal Construction Services (for Group B and C projects) for permits to contract the designing as prescribed.

- The general interpretation of the technical design, including:

+ On architecture: The architectural solutions and major data of the project;

+ On structures: The solutions and major data on weight-bearing structures, the foundation and the description of the main structure;

+ On the system of technical constructions: The solutions and major data on the supply of energy, water supply and drainage, ventilation, lighting, sound, information, signals, fire alarm and extinction, automatic control;

- The documents on topographical, geological, hydro-geological, meteorological, climatic, environmental and earthquake surveys of the construction site;

b/ The drawings:

- The drawing of the total ground area of the construction site and the arrangement of technological lines;

- The main drawings of the project's architecture: horizontal, cross-section and vertical;

- The drawing of the main structures and foundation of the project;

- The main drawings of the technological and technical system of the project;

- The main drawings of the project's technical infrastructure system: supply of energy, water supply and drainage, ventilation, lighting and information;

- The horizontal drawing and cross-section attached with major parameters of the technical infrastructure system and the diagram of link-ups to the common infrastructure works inside and outside the project.

3. Contents of the technical design evaluation:

- The legal status of the designing organization;

- The conformity of the technical design with the preliminary design of the feasibility study that has been selected when the project is ratified and with the plan already approved by the competent level; the solutions that must not fall outside the provisions of the plan certificate; if the plan is not available or the ratified plan is readjusted, there must be a written approval from the plan management agency;

- The conformity of the technical design with Vietnam's construction standards and norms or with foreign construction norms that have been accepted by the Ministry of Construction;

- The appraisal of the construction's durability and solidity, the technological rationality of the technical design for industrial projects, the safety of the technical infratructure system and the stability of nearby projects.

4. The report on the evaluation of the technical design, the written approval of such design and the construction decision shall be made according to the prescribed forms.

III. MANAGEMENT OF PROJECTS' CONSTRUCTION QUALITY

1. The projects' construction quality shall be controlled in accordance with the provisions of the "Regulation on the Management of Projects' Construction Quality" issued together with Decision No.498/BXD-GD of September 18, 1996 of the Minister of Construction.

The B.O.T. enterprise and the State agency competent to sign the B.O.T. contract shall perform the technical and quality control of the project, monitor and supervise the construction and organize the testing on completion of each item of the project as well as the whole project in conformity with the approved design and shall notify the State management agency in charge of the projects' construction quality thereof according to the assignment defined in Point 2 of this Section so that the latter may witness and inspect it when necessary.

2. Assignment of State responsibility for the control of the project's construction quality:

- The State Department for Examination of the Project's Construction Quality under the Ministry of Construction shall assist the Minister of Construction in exercising uniform State control of the project's construction quality and directly appraise the construction quality of Group A projects.

- The Construction Services of the provinces and cities directly under the Central Government shall assist the presidents of the provincial/municipal People's Committees in exercising uniform State control of the construction quality of the projects on the territory of their localities and directly appraise the quality of Groups B and C projects.

When the B.O.T. enterprise organizes the testing on completion of the whole project before putting it into use, the above-said State management agency responsible for the project's construction quality shall have to inspect the observance of the regulations on the test on completion and shall be entitled to request the B.O.T. enterprise to overcome errors when detected.

3. Within 3 months after the test on completion of the whole project, the B.O.T. enterprise shall have to complete two sets of dossier on the completion of the project, one of which shall be kept by itself and the other shall be sent to the archive agency in accordance with the State's regulations on archives.

IV. IMPLEMENTATION PROVISIONS

1. This Circular takes effect 15 days after its signing;

2. The other provisions on the management of investment and construction related to domestic investment in the form of B.O.T. contracts that are not provided for in this Circular shall be applied in accordance with current laws;

3. The ministries, the ministerial-level agencies and the agencies attached to the Government, the People's Committees of the provinces and cities directly under the Central Government, the State agencies competent to sign B.O.T. contracts shall, within their functions and powers, have to provide guidance and implement this Circular.

4. In the course of implementation, if any problem or ambiguity arises, the related agencies are requested to promptly report it to the Ministry of Construction for appropriate settlement and adjustment.

The Minister of Construction

NGO XUAN LOC