Chương VI Luật Xây dựng 2003: Lựa chọn nhà thầu và hợp đồng xây dựng

Chapter VI

SELECTION OF CONSTRUCTION CONTRACTORS AND CONTRACTS

Section 1. SELECTION OF CONSTRUCTION CONTRACTORS

Article 95.- Selection of contractors in construction activities

1. Selection of contractors in construction activities shall be made for jobs, groups of jobs or all jobs of formulation of construction detailed plannings, formulation of work construction investment projects, survey, designing, construction, supervision and other construction activities.

2. The selection of contractors aims to find contractors, general contractors and sub-contractors having full capability for construction operation or construction profession practice compatible with work types and grades.

3. Principal contractors or general contractors may assign part of contractual jobs to sub-contractors. Sub-contractors must have corresponding adequate capability for construction operation or construction profession practice and be accepted by the work construction investors; sub-contractors must not assign the whole job or principal job under contracts to other contractors.

4. The selection of contractors in construction activities must comply with the provisions of this Law and the legislation on bidding.

Article 96.- Requirements on the selection of contractors in construction activities

1. The selection of contractors must satisfy the following requirements:

a/ Achieving the efficiency of work construction investment projects;

b/ Choosing contractors who fully meet the conditions on appropriate capability for construction operation or construction profession practice, and offer reasonable contracting prices;

c/ Objectivity, publicity, fairness and transparency.

2. Investment deciders and work construction investors may decide on modes of contractor selection.

Article 97.- Modes of selection of contractors in construction activities

Depending on the size, characteristics and capital sources for construction of works, investment deciders or work construction investors may select contractors by the following modes:

1. Unlimited bidding, limited bidding;

2. Contractor appointment;

3. Selection of contractors for construction work architecture designing.

Article 98.- Requirements on bidding in construction activities

1. Bidding in construction activities aims to select appropriate contractors, thus ensuring the competitiveness.

2. Bidding shall be held only when capital sources for work execution are determined.

3. The bidding duration must not be prolonged in order to ensure the set progress and efficiency of work construction investment projects.

4. Bid-winning parties must have optimal technical and technological schemes and reasonable tender prices.

5. Domestic contractors participating in international biddings in Vietnam shall enjoy the preferential regimes provided for by the Government.

6. It is prohibited to use the legal person status of other organizations to participate in biddings; pre-fix, purchase and sell bids; exert one's influence to falsify bidding results or offer tender prices lower than construction costs of works.

Article 99.- Unlimited biddings in construction activities

1. Unlimited biddings shall be held to select work construction contractors with unlimited number of participating contractors.

2. Bid inviters must publicize on the mass media the conditions and time limit for submitting the bidding dossiers.

3. Bidders shall be allowed to participate in biddings only when they fully satisfy the conditions on capability for construction operation or construction profession practice compatible with work types and grades according to the conditions notified by the bid inviters.

4. Bid inviters shall have to announce on the mass media the bid evaluation results and bid-winning prices.

Article 100.- Limited bidding in construction activities

1. Limited bidding shall be held to select construction consultancy contractors and work construction contractors for construction works with high technical requirements from a limited number of contractors fully satisfying the conditions on capability for construction operation or construction profession practice invited to participate in biddings.

2. For work construction investment projects or works financed with the State capital, two or more enterprises of the same corporation, a corporation and a member company, a parent company and an affiliated company, a joint-venture enterprise and a capital contributor thereto shall not be allowed to participate together in bidding in a bidding package.

Article 101.- Contractor appointment in construction activities

1. Investment deciders or work construction investors may directly appoint an organization or individual fully satisfying the conditions on capability for construction operation or construction profession practice to perform jobs or construct a work at reasonable prices in the following cases:

a/ State-secret works, work constructed under urgent orders, make-shift works;

b/ Works of research or experimental nature;

c/ Small-sized and simple jobs, construction works or work items, as provided for by the Government;

d/ Renovation, embellishment and restoration of cultural heritage works, historical-cultural relics;

dd/ Other special cases permitted by the persons competent to decide investment.

2. Persons competent to appoint contractors shall be held responsible before law for the selection of contractors with full capability for construction operation or construction profession practice.

3. Organizations and individuals appointed as contractors must have full capability for construction operation or construction profession practice compatible with jobs, work types and grades; and have a healthy and transparent financial status.

Article 102.- Selection of construction work architecture designing contractors

1. The selection of construction work architecture designing contractors shall apply to the construction works defined in Article 55 of this Law.

2. Authors of selected architecture designing plans are given priority to perform the subsequent designing steps if they have full capability for construction designing operation or work construction designing practice.

Article 103.- Selection of general contractors in construction activities

1. Depending on the size, nature, type and grade of works and specific conditions of work construction investment projects, the investment deciders or the work construction investors shall decide on the following forms of selection of general contractors in construction activities:

a/ Designing general contractors for performing all jobs of work construction designing;

b/ Construction general contractors for performing all jobs of work construction;

c/ General contractors for performing all jobs of designing and construction of works;

d/ General contractors for performing all jobs of designing, supply of materials and equipment and construction of works;

dd/ Turn-key general contractors for performing jobs in package from project formulation to designing, supply of materials and equipment and construction of works.

2. Independent contractors or partnerships participating in bidding in construction activities must fully satisfy the conditions on capability for construction operation compatible with work type and grade according to the provisions of this Law.

3. For cases where the form of general contractors defined in Clause 1 of this Article is applied, the general contractors must appoint persons fully satisfying the conditions on capability for construction profession practice to coordinate all jobs of the general contractors.

Article 104.- Rights and obligations of bid inviters

1. Bid inviters have the following rights:

a/ To request bidders to supply necessary information in service of the selection of contractors;

b/ To select bid-winning contractors or cancel results of the selection of contractors according to the provisions of bidding legislation;

c/ Other rights provided for by law.

2. Bid inviters have the following obligations:

a/ To compile bidding dossiers and bidding plans compatible with contents of the approved work construction investment projects;

b/ To examine the declaration of the capability for construction operation or capability for construction profession practice and financial status of the chosen bidders;

c/ To supply in full and on time capital sources for performing jobs according to schedule;

d/ To notify necessary requirements to the bidders and strictly observe the notified contents;

dd/ To publicize bid-winning units and bid-winning prices for construction works funded with the State capital after contractor selection results are obtained;

e/ To purchase insurance for works;

g/ To make compensations for damage incurred due to their faults by contractors participating in bidding;

h/ To be held responsible before law for acts of pre-fixing, purchasing and/or selling bids, disclosing information upon the bid consideration or conniving with contractors and other acts of violation of the bidding legislation.

i/ Other obligations provided for by law.

Article 105.- Rights and obligations of bidders

1. Bidders have the following rights:

a/ To participate in bidding as independent contractors or in partnership with other contractors;

b/ To request the supply of information or survey sites in order to compile bid dossiers;

c/ To lodge complaints or denunciations when detecting acts of violating the regulations on selection of contractors;

d/ Other rights provided for by law.

2. Bidders have the following obligations:

a/ To compile bid dossiers in a truthful and accurate manner, ensuring the requirements on bidding invitation dossiers;

b/ To be held responsible before law for their acts of violating the provisions in Clause 6, Article 98 of this Law;

c/ To compensate for damage caused by their acts of violation, which lead to prolongation of bidding or re-bidding;

d/ To underwrite bids according to regulations;

dd/ Other obligations according to provisions of law.

Article 106.- Responsibilities of work construction investment deciders in the contractor selection

1. To inspect and handle violations and settle complaints and denunciations in the contractor selection.

2. To suspend the contractor selection, cancel the contractor selection results when detecting violations in the contractor selection.

3. To be held responsible before law for and make compensations for damage caused by their decisions.

Section 2. CONTRACTS IN CONSTRUCTION ACTIVITIES

Article 107.- Contracts in construction activities

1. Contracts in construction activities are established for jobs of elaboration of construction plannings, formulation of work construction investment projects, construction surveys, work designing, supervision and construction of works, management of work construction projects and other jobs in construction activities.

2. Contracts in construction activities are established in writing in compliance with the provisions of this Law and other relevant law provisions.

3. Depending on the sizes and characteristics of works, types of jobs, relations between parties, contracts in construction activities may have many types with different contents.

Article 108.- Principal contents of contracts in construction activities

A contract in construction activities includes the following principal contents:

1. Content of the job to be performed;

2. Quality and other technical requirements of the job;

3. Performance duration and schedule;

4. Conditions for pre-acceptance test and hand-over;

5. Price and payment mode;

6. Warranty duration;

7. Liability for contract breaches;

8. Other agreements according to each type of contract;

9. Language used in the contract.

Article 109.- Adjustment of contracts in construction activities

1. Contracts in construction activities shall be adjusted only when the investment deciders so permit in the following cases:

a/ When work construction investment projects change;

b/ When the State changes the relevant policies;

c/ Force majeure circumstances.

2. Persons who permit the adjustment of contracts shall be held responsible before law for their decisions and have to make compensations for damage caused by such decisions.

Article 110.- Contractual rewards, fines for contractual breaches and settlement of contractual disputes in construction activities

1. The contractual rewards or fines for contractual breaches must be inscribed in the contracts.

2. For works constructed with the State capital source, the reward level must not exceed 12% of the value of the profitable contract part and the fine level must not exceed 12% of the value of the breached contract part. Reward funding source shall be deducted from the profits brought about by the early use or exploitation of quality works or rational savings of expenses for the performance of contracts.

3. In cases where contractual disputes arise in construction activities, the disputing parties shall have to negotiate and settle them by themselves. In cases where the parties fail to reach an agreement, the settlement of disputes shall be made through conciliation, arbitration or court proceedings according to law provisions.