Laws of Vietnam

No: 114/2010/ND-CP

Ha Noi, day 06 month 12 year 2010                          

DECREE

ON MAINTENANCE OF CONSTRUCTION WORKS

THE GOVERNMENT

Pursuant to the December 25, 2001 Law on Organization of the Government;
Pursuant to November 26, 2003 Construction Law No. 16/2003/QH11;
Pursuant to June 29, 2006 Law No. 68/2006/ QH11 on Standards and Technical Regulations;
At the proposal of the Minister of Construction,

DECREES:

Chapter I

GENERAL PROVISIONS

Article 1. Scope of regulation and subjects of application

This Decree guides the implementation of the Construction Law regarding maintenance of construction works; and applies to organizations and individuals involved in the management, operation and use of construction works (below referred to as works) in the Vietnamese territory.

Article 2. Interpretation of terms

1. Maintenance of a work means a set of jobs performed to assure and keep the normal and safe operation of a work according to its design throughout the process of its operation and use.

Maintenance may cover one, some or all of the following jobs: examination, observation, quality inspection, servicing and repair of a work.

2. Work maintenance process means regulations on the order, contents and instructions for performance of work maintenance jobs.

3. Examination of a work means the assessment made visually or with special-use equipment to evaluate the state of a work for detecting signs of its damage.

4. Observation of a work means the observation and measurement of technical parameters of a work as required by its design in the process of its use.

5. Servicing of a work means activities (monitoring, caring and repairing minor damage or maintaining equipment installed in a work) routinely or periodically conducted to keep a work in its operation and use and limit its damage.

6. Quality inspection of a work means the examination and determination of a work's quality or assessment of a work quality's conformity with requirements of its design, standards or technical regulations by examining the state of the work visually in combination with analyzing and evaluating data obtained from its testing.

7. Repair of a work means the fixing of a work's damage detected in the process of its operation and use to assure its normal and safe operation.

8. Design lifetime of a work means the duration of a work's use calculated by the designer in the process of designing the work.

9. Owner of a work means an individual or organization that has ownership over a work under law.

Article 3. Work maintenance requirements

1. Works and their parts put into operation and use must be maintained under this Decree.

Works put into operation and use before the effective date of this Decree must be maintained under Article 15 of this Decree, unless otherwise provided by law.

2. The maintenance process of a work shall be developed to suit its parts, installed equipment, grade, class and use purpose,

3. Maintenance of a work must ensure safety for humans and assets and uninterrupted and safe operation of the work.

Article 4. Work maintenance sequence

1. Developing and approving the work maintenance process.

2. Planning the work maintenance and estimating its cost.

3. Conducting routine, periodical and extraordinary examination of works.

4. Conducting observation for works with observation requirements.

5. Servicing the work.

6. Inspecting the quality of the work when necessary.

7. Conducting periodical and extraordinary repairs of the work.

8. Making and managing the work's maintenance dossier.

Article 5. Organizations and individuals responsible for work maintenance

1. The following organizations and individuals are responsible for maintaining works:

a) Owners of works:

b) Managers or users of works as authorized by owners (below referred to as authorized persons);

c) Users of works when their owners are unidentifiable.

2. For a work with many owners, these owners shall, in addition to maintaining the work's parts under their private ownership, maintain parts under their common ownership under relevant laws.

3. Persons responsible for maintaining works shall take responsibility before law for works' incidents or degradation caused by their failure to maintain the works under this Decree.

4. Agencies defined in Clause 1, Article 26 of this Decree and provincial-level People's Committees shall provide guidance on identifying persons responsible for maintaining works of different types, depending on their capital sources and forms of ownership.

Chapter II

WORK MAINTENANCE PROCESS

Article 6. Developing a work maintenance process

1. Responsibility to develop a work maintenance process:

a) The work construction designing contractor shall develop a process of maintaining the work and work parts its has designed and hand it together with the design dossier to the investor;

b) The contractor supplying equipment installed in a work shall develop and hand to the investor a process of maintaining equipment it has supplied before they are installed in the work;

c) When the above two contractors are unable to develop a maintenance process, the investor may hire another capable consultancy institution under Law to develop such process for the objects specified at Point a or b of this Clause, and shall pay consultancy expenses.

2. Bases for developing a work maintenance process:

a) Standards and technical regulations applicable to the work;

b) Work maintenance process applicable to similar works, if any;

c) Equipment manufacturer's instructions;

d) Natural conditions in the location of work construction;

e) Experiences on the management and use of the work and equipment installed in the work;

f) Relevant regulations of competent state agencies.

3. A developed work maintenance process must be applicable to all work parts, covering:

a) Technical parameters, technologies, analysis of observation results for works with observation requirements:

b) Objects, methods and frequency of inspection;

c) Maintenance jobs and instructions;

d) Time, objects and jobs of periodical inspection;

e) Time for and instructions on periodical replacement of equipment installed in the work;

f) Instructions on methods of repairing damage and handling degradation; conditions for ensuring labor safety and environmental sanitation during maintenance;

g) Other maintenance-related instructions.

4. A separate maintenance process is not required for a single grade-IV civil work, individual house and makeshift work, unless otherwise provided by law. Owners or authorized persons of these works shall still perform maintenance under this Decree.

5. When technical standards on maintenance or a maintenance process applicable to similar works arc available, owners or authorized persons may decide to apply such standards or process to their works without having to develop a separate maintenance process.

6. A work maintenance process shall be presented clearly and publicly in Vietnamese or English (for foreign-invested works) in paper document, magnetic disk or other media.

7. Within two years after the effective date of this Decree, agencies defined in Clause 1, Article 26 of this Decree shall assume the prime responsibility for, and coordinate with the Ministry of Science and Technology in, formulating and promulgating technical standards on maintenance of works suitable to their grades and classes.

Article 7. Appraisal and approval of a work maintenance process

1. The investor defined in the Construction Law shall receive the maintenance processes from the work construction designing contractor and contractor supplying equipment installed in the work, and appraise and approve such processes before takeover test for putting the work into use, unless otherwise provided by law.

2. The investor may hi re a consultant to verify part or the whole of the work maintenance process developed by the designing contractor as a basis for appraisal and approval.

3. For works invested under build-operate-transfer (BOT), build-transfer-operate (BTO) or build-transfer (J3T) contracts, project enterprises (investors) shall appraise and approve the work maintenance process.

Article 8. Modification of a work maintenance process

1. In the course of maintenance, the owner or authorized person may decide to modify the work maintenance process when detecting irrationalities which may affect the quality, operation or use of the work and shall take responsibility for his)her decision.

The contractor developing the work maintenance process may modify or change ii rationalities in this process if such irrationalities are caused by his)her)its fault, and may refuse unreasonable requests made by the owner or authorized person to adjust this process.

The owner or authorized person may hire the designing contractor or another contractor supplying equipment to modify the work maintenance process in case the contractor developing the process fails to do so. The contractor modifying the work maintenance process shall take responsibility for the quality of jobs he)she)it performs.

The owner or authorized person shall appraise and approve the above modifications, unless otherwise provided by law.

2. When technical standards on maintenance applicable to a work are modified or replaced, the owner or authorized person shall perform maintenance according to the modified ones.

Article 9. Documents serving maintenance of works

1. Documents serving maintenance of a work include those on the work maintenance process, drawing of the completed work, records of installed equipment, and other necessary dossiers and documents.

2. The investor shall hand documents serving maintenance of a work to the owner or authorized person before handover of the work for putting into operation and use.

Chapter III

MAINTENANCE OF WORKS

Article 10. Work maintenance plan

1. A work maintenance plan shall be annually worked out on the basis of the approved work maintenance process and the work's state, covering:

a) Names of jobs performed:

b) Performance lime;

c) Mode of performance;

d) Expenses for performance.

2. Owners or authorized persons shall work out and approve work maintenance plans as a basis for work maintenance.

For a work with many owners, these owners shall consider and agree on a plan to maintain the work parts under their common ownership under relevant law.

3. A work maintenance plan may be modified during its implementation. The owner or authorized person shall decide to modify this plan.

4. Procedures for repairing works and equipment with state budget funds shall, depending on expense levels, be earned out as follows:

a) In case the repair of a work or equipment costs less than VND 500 million, the owner or authorized person shall him)herself decide on the repair plan, covering the following details: names of work parts or equipment to be repaired or replaced; reason for and purpose of such repair or replacement; job volume; estimated expenses and time for implementation and completion:

b) In case the repair of a work or equipment costs VND 500 million or more, the owner or authorized person shall make and submit, for appraisal and approval an econo-technical report or a construction investment project under the law on work construction investment.

5. For repairing works with non-state budget funds, the owner or authorized person is encouraged to refer to and apply the provisions of Clause 4 of this Article.

Article 11. Examination, servicing and repair of works

1. The owner or authorized person shall, if fully capable, himself)herself inspect, provide servicing for, and repair a work according to the work maintenance process or hire another capable institution to do so.

2. Routine or periodical inspection may be conducted visually, based on data obtained from regular observation or with special-use examination equipment, when necessary, to assess the state and detect in time signs of degradation of a work, its equipment and technological devices as a basis for maintaining the work.

3. Servicing of a work must follow specific steps suitable to each part of a work and its grade and installed equipment.

4. Repair of a work shall be conducted periodically or extraordinarily, covering:

a) Periodical repair of a work covers repair of damage or replacement of a faulty work part, equipment or technological device on a periodical basis as required by the work maintenance process;

b) Extraordinary repair of a work is conducted when part or the whole of a work is damaged by unexpected impacts such as whirlwind, storm. Hood, earthquake, collision, fire or other impacts or when appear signs which are likely lo cause sudden damage, affecting the work's use or operation safety or cause incidents leading to disasters.

5. Work examination, servicing and repair results must be recorded in dossiers for management and surveillance

Article 12. Quality inspection of works for maintenance purposes

1. Quality inspection of a work for maintenance purposes is conducted in the following cases:

a) Periodical inspection according to the approved maintenance process:

b) When detecting some damaged parts of a work or degradation in quality of a work which affects its safe operation and use;

c) Upon request for quality assessment of a work's state to serve the development of a maintenance process, for works already put into use but without a maintenance process, under Article 15 of this Decree;

d) When a ground is needed for deciding to extend the use of a work, for works with expired design lifetime, or for renovating and upgrading a work.

2. Quality inspection sequence

a) The owner or authorized person selects a capable construction operation or practice institution to inspect the work's quality under the construction law based on inspection requirements specified in Clause 1 of this Article;

b) The inspection institution surveys and makes a quality inspection plan for the work based on inspection requirements;

c) The owner or authorized person approves the inspection plan;

d) The inspection institution conducts inspection according to the approved plan, assess the quality of inspected objects and propose solutions.

Article 13. Observation of works

1. A work shall be observed in case there arc requirements for monitoring its operation to prevent incidents likely to lead to disasters related to humans, assets or the environment or in other cases at the request of the investor, owner or authorized person.

2. The owner or authorized person shall, if fully capable, conduct observation and assess observation results according to the work maintenance process, or hire another capable institution to do so.

3. Observation-conducting organizations and individuals shall report on and assess observation results against allowable parameters stated in the work maintenance process. When necessary, the owner or authorized person may hire an independent institution to assess reports on observation results.

4. Agencies defined in Clause 1, Article 26 of this Decree shall specify works and work parts which are subject to compulsory observation during their use.

Article 14. Quality management of work maintenance jobs

1. The owner or authorized person shall supervise observation, quality inspection, construction, takeover test of work repair jobs, and make, manage and preserve work maintenance dossiers under the law on quality management of construction works and other relevant laws.

2. A work maintenance dossier comprises:

a) Documents serving maintenance specified in Clause 1, Article 9 of this Decree;

b) Maintenance plan;

c) Observation results (if any);

d) Quality inspection results;

e) Routine and periodical examination results;

f) Servicing and repair results;

g) Other relevant documents.

3. Work repair jobs must be warranted for at least 6 months, for works of grade 2 or lower grade, or 12 months, for works of grade 1 or higher grade.

Article 15. Maintenance of works that arc in use but have no maintenance process

1. For grade-TV civil works, individual houses and makeshift works, their owners or authorized persons shall maintain them under Clause 4. Article 6 of this Decree.

2. For other works, their owners or authorized persons shall maintain them in the following sequence:

a) Surveying, examining and assessing the quality of the work;

b) Developing a work maintenance process;

c) Repairing damage to the work (if any);

d) Maintaining the work under Chapter III of this Decree.

Within 2 years after the effective date of this Decree, owners or authorized persons shall make and approve work maintenance processes for the above works.

3. The state management agencies below shall review and set a specific roadmap and plan and request owners or authorized persons to make maintenance processes for works that are in use but have no maintenance process:

a) Agencies defined in Clause 1. Article 26 of this Decree, for works of special grade or grade I or works in which incidents might cause disasters, under the law on quality management of works;

b) Provincial-level People's Committees, for grade-11 works in localities.

Article 16. Handling of works that have passed design lifetime but need to be further used

1. If wishing to further use a work that has passed its design lifetime, the owner or authorized person shall perform the following jobs:

a) Examining, inspecting and assessing the quality of the work;

b) Repairing damage, if any, to ensure the work's utility and sale use before deciding to continue its use;

c) Deciding on such further use after performing the jobs specified at Points a and b of this Clause to ensure that no disaster will be caused by any occurring incidents under the law on quality management of construction works, for works of grades III and IV, unless otherwise provided by law;

d) Reporting on results of examination, inspection, quality assessment or repair of the work (if any), for works of grade II or higher grade and works in which incidents might cause disasters, under the law on quality management of construction works, to agencies defined in Clause 1. Article 26 of this Decree for consideration and approval of such further use.

2. The prolonged use duration of a work shall be determined based on the technical conditions, specific use requirements, class and grade of the work.

Article 17. Reporting on and inspection of maintenance of works

1. Reporting on maintenance of works

Owners or authorized persons shall annually report on the maintenance and safety of works of grade II or higher grade and works in which incidents might cause disasters, under the law on quality management of construction works, to state management agencies defined in Clause 1, Article 26 of this Decree.

2. Provincial-level People's Committees shall, coordinate with specialized ministries defined in Clause 1. Article 26 of this Decree in examining the observance of work maintenance regulations by owners or authorized persons as follows:

a) Conducting probability inspection of all works;

b) Conducting periodical inspection at least once every 5 years, for works of grade II or higher grade and works in which incidents might cause disasters, under the law on quality management of construction works.

3. The Prime Minister shall decide to set up stale councils for annual assessment of the safety of nuclear power plants, special-grade reservoirs, express railways and other works as deemed necessary by the Prime Minister.

Article 18. Handling of works that show signs of degradation in quality that make their operation and use unsafe

1. When detecting a work part or a work with signs of degradation in quality that make its operation and use unsafe, the owner or authorized person shall perform the following jobs:

a) Examining the work or inspecting the quality of the work;

b) Deciding to take safety measures: restriction of or suspension from use of the work; relocation of people and assets, when necessary, and immediately reporting such to the following state management agencies:

- Agencies defined in Clause 1. Article 26 of this Decree, for specialized works of grade II or higher grade and works in which incidents might cause disasters, under the law on quality management of construction works;

- Provincial-level People's Committees, for other works in localities.

c) Repairing breakdowns which may affect the safe use and operation of the work under the law on construction of urgent works.

2. For a condominium with signs of degradation in quality that make its operation and use unsafe, in addition to the provisions of Clause 1 of this Article, the owner or authorized person shall comply with the housing law.

3. When detecting, or receiving information on, a work with signs of degradation in quality that make its operation and use unsafe, state management agencies defined at Point b, Clause 1 of this Article shall:

a) Inspect, notify, request and guide the owner or authorized person to survey, inspect or assess the danger of the work, repair or dismantle parts or the whole of the work, when necessary;

b) Deciding to take safety measures specified at Point b, Clause 1 of this Article when the owner or authorized person fails to perform the jobs specified at Point a of this Clause;

c) Determining under law the responsibility of the owner or authorized person who fails to comply with requests of state management agencies specified at Points a and b of this Clause.

4. All citizens may notify owners or authorized persons and state management agencies defined at Point b, Clause 1 of this Article or in the mass media incidents or quality degradations of work parts or works that make their operation and use unsafe, for timely handling.

5. When receiving information on incidents or degradation of a work or work part, the owner or authorized person and state management agencies shall take safety measures specified at Point b, Clause 1 of this Article, and take responsibility before law in case of delayed handling, causing human and property losses.

Chapter IV

WORK MAINTENANCE EXPENSES

Article 19. Work maintenance funds Work maintenance funds come from:

1. Annual state budget (central and local budgets) allocations.

2. Non-state budget charges for the use of works.

3. Capital of investors and owners, for commercial works.

4. Capital contributed and raised from organizations and individuals.

5. Other lawful sources.

Article 20. Responsibility to pay work maintenance expenses

1. The following persons shall pay work maintenance expenses:

a) Owners or authorized persons, unless otherwise provided by law;

b) Users, for works already put into use;

c) For a work with many owners, these owners shall pay maintenance expenses for work parts under their private ownership and parts under common ownership.

2. Agencies defined in Clause 1. Article 26 of this Decree and provincial-level People's Committees shall guide the division and payment of maintenance expenses for work parts under common ownership specified at Point c, Clause 1 of this Article.

Article 21. Expenses for development, verification and modification of a work maintenance process

1. Expenses for development and verification of a work maintenance process

a) Expenses for development and verification of a work maintenance process shall be included in the total work construction investment;

b) Expenses for development and verification of a maintenance process for a work already put into use but having no maintenance process shall be included in work maintenance expenses.

2. Expenses for modification of a work maintenance process shall be included in work maintenance expenses. The contractor developing the work maintenance process shall pay expenses for modifying this process in case such modification is needed due to his)her fault.

Article 22. Work maintenance cost estimates

1. A work maintenance cost estimate (below referred to as maintenance estimate) shall be determined based on specific maintenance jobs and serve as a basis for the owner or authorized person to manage work maintenance expenses.

2. A maintenance estimate shall be made based on the volumes of jobs staled in the maintenance plan and construction unit prices for maintenance for the performance of maintenance jobs.

3. For state-funded works, owners or authorized persons shall make, appraise and approve their maintenance estimates under Clauses 1 and 2, Article 22, and Article 23 of this Decree.

For works funded with capital of other sources, owners or authorized persons are encouraged to make, appraise and approve their maintenance estimates under Clauses 1 and 2, Article 22, and Article 23 of this Decree.

4. Agencies defined in Clause 1, Article 26 of this Decree and provincial-level People's Committees shall, based on the Construction Ministry-guided methods of making construction norms for work maintenance, make and announce construction norms for maintenance of works suitable to specific conditions of their ministries and localities and send them to the Ministry of Construction for monitoring and management.

Article 23. Appraisal and approval of maintenance estimates

1. Owners or authorized persons shall approve maintenance estimates after appraising or verifying them and take responsibility before law for the results of approval of maintenance estimates of other relevant works. Appraisal contents include:

a) Examining the conformity of the estimated major volume with the to-be-performed volume;

b) Examining the correctness and reasonableness of the application of construction unit prices for work maintenance, expense percentage norms, estimates of consultancy expenses and estimates of other expenses in maintenance expenses;

c) Valuing maintenance estimates.

2. Owners or authorized persons may hire capable and experienced consultants to verify work estimates. These consultants shall take responsibility before law and owners or authorized persons for verification results.

Article 24. Management, payment and settlement of work maintenance expenses

1. For state-funded works, owners or authorized persons shall manage, pay and settle work maintenance expenses under the State Budget Law and relevant regulations.

2. For works funded with non-state budget funds, owners or authorized persons shall manage maintenance funds and pay and settle maintenance expenses as agreed with organizations or individuals that maintain the works.

Chapter V

STATE MANAGEMENT OF AND GUIDANCE ON MAINTENANCE

Article 25. State management of work maintenance

The Ministry of Construction shall take responsibility before the Government for performing the unified state management of work maintenance and shall;

1. Submit to the Government for promulgation or promulgate according to its competence legal documents on work maintenance.

2. Guide expenses for the development, verification and adjustment of work maintenance processes; guide methods of making maintenance estimates and announce construction norms for work maintenance.

3. Assume the prime responsibility for. and coordinate with the Ministry of Finance in. guiding the use of non-state budget funds (if any) for work maintenance.

4. Assume the prime responsibility for. and coordinate with concerned ministries, ministerial-level agencies and localities in. inspecting and examining observance of regulations on work maintenance nationwide, and guiding the handling of violations of this Decree under law.

Article 26. Guidance responsibilities of agencies

1. Specialized ministries shall guide work maintenance as follows:

a) The Ministry of Construction shall guide the maintenance of civil works, except historical-cultural relics; construction material industrial works and urban technical infrastructure facilities; and the implementation of Points a. b. c and d, Clause 2 of this Article, for civil works, construction material industrial works and urban technical infrastructure facilities;

b) The Ministry of Transport shall guide the maintenance of transport works;

c) The Ministry of Agriculture and Rural Development shall guide the maintenance of irrigation works, dikes and other specialized agricultural works;

d) The Ministry of Industry and Trade shall guide the maintenance of mines, petroleum works, power plants, power transmission lines, transformer stations, works related to chemicals, industrial explosives, machine manufacture or metallurgy, and other specialized industrial works, except construction material industrial works;

e) The Ministry of National Defense and the Ministry of Public Security shall guide the maintenance of defense and security works;

f) The Ministry of Information and Communications shall guide the maintenance of telecommunications works;

g) The Ministry of Culture. Sports and Tourism shall guide the maintenance of historical-cultural relics.

2. Ministries defined in Clause 1 of this Article shall:

a) Define persons responsible for maintenance of works corresponding to their types, maintenance funds and form of ownership;

b) Compile and issue technical standards on maintenance of works specified in Clause I of this Article; set requirements and lists of works or work parts subject to compulsory observation under this Decree:

c) Guide the payment of contributions to work maintenance; make and announce construction norms for work maintenance, examine the maintenance and assess the safety of works; and handle under this Decree unsafe works :

d) Consider and decide on the further use of works that have passed their design lifetime specified at Point d, Clause 1. Article 16 of this Decree:

e) Handle works with signs of degradation in quality that make their operation and use unsafe under Article 18 of this Decree;

f) Examine the observance of this Decree and handle violations under law.

3. Provincial-level People's Committees shall perform the tasks staled at Points a, c, d and e, Clause 2 of this Article and guide the use of non-state budget funds (if any) for works in their localities under Clause 3, Article 25 of this Decree.

Chapter VI

IMPLEMENTATION PROVISIONS

Article 27. Effect

This Decree takes effect on January 20, 2011, and annuls the provisions on maintenance of works in Chapter VII of the Government's Decree No. 209/2004/ND-CP of December 16, 2004, on quality management of construction works.

Article 28. Organization of implementation

1. Ministers, heads of ministerial-level agencies, heads of government-attached agencies, chairpersons of provincial-level People's Committees, heads of political organizations, socio-political organizations and socio-political-professional organizations, chairpersons of boards of directors of state economic groups and corporations, and concerned organizations and individuals shall implement this Decree.

2. The Ministry of Construction shall assume the prime responsibility for, and coordinate with concerned ministries and sectors in, guiding the implementation of this Decree.