Chương I Nghị định 06/2021/NĐ-CP: Quy định chung

Chapter I

GENERAL PROVISIONS

Article 1. Scope and subjects of application

1. This Decree elaborates on several regulations regarding the quality management, construction and maintenance of construction works.

2. This Decree applies to domestic and foreign entities, organizations and individuals related to the quality management, construction and maintenance of construction works.

Article 2. Definition

1. Construction work quality control means the act of management of entities participating in construction activities under the provisions of this Decree and other relevant laws during the process of construction investment preparation and implementation, operation and use of a construction work to ensure the quality and safety for the construction work.

2. Construction management means the act of management of entities participating in construction activities under the provisions of this Decree and other relevant laws in order to ensure conformance to safety, quality and progress requirements, effectiveness and meet design requirements and stated objectives.

3. Technical instructions are a set of technical requirements which are based on technical regulations and standards applied to construction works or designs to provide guidance and regulations on materials, products and equipment used for construction works, construction, supervision, and acceptance testing or commissioning of construction works.

4. As-built drawing refers to a drawing of a finished construction project, providing information about actual locations, dimensions, actually used materials and equipment.

5. Project completion documentation means a set of documents and records related to the investment and construction processes that need to be archived while the project is putting into use.

6. Specialized construction experiment means any measurement activity aimed at determining the characteristics of a construction land, material, environment, product, constituent or project according to a certain process.

7. Construction observation means the act of observing, measuring and recording any geometrical change, deformation, distortion, transition, and other technical parameters of a project and its ambient environment over periods of time. 

8. Construction survey means an act of making measurement to determine the position, shape and size of a terrain or construction project as a support for construction, quality control, warranty, maintenance, management, operation, use and management of failures or breakdowns or responses to emergencies arising from a construction project.

9. Construction testing means the act of examining and assessing the quality or causes of damage, breakdowns or failures, value, useful life and other technical parameters of a construction product or a project constituent or the whole of a construction project through the construction observation, experiment, quantity calculation, estimation or quantification and analysis activities.

10. Construction inspection means the act of construction testing and evaluation of compliance with the law on construction investment which is organized and carried out by a competent state regulatory authority in accordance with this Decree.

11. Regulatory compliance assessment of construction activities means the act of assessing whether the building material and product comply with the applicable requirements of relevant technical regulations.

12. Standard conformity assessment of construction activities is the act of assessing whether a product, commodity, service, process or environment conforms to the corresponding standard.

13. Construction project maintenance means a combination of activities aimed at assuring and maintaining the normal and safe operation of a construction project in compliance with design requirements during the process of using and operating that construction project. Construction project maintenance may include one, some or all of the following activities: examination, observation, quality inspection, maintenance and repair of the construction project; addition and replacement of a construction work and equipment to ensure safety for the operation and use of the construction project, but does not include activities that alter the function or scale of the construction project.

14. Procedures for maintenance of a construction project refer to documents providing regulations on processes, requirements and instructions for maintenance of the construction project.

15. Design service life of a construction project (design life) means the period of time during which the construction project is expected to use, ensuring conformance to safety and utility requirements. Design life of a construction project is specified in the relevant technical regulation, standard in use or engineering objectives.

16. Real service life of a work (real life) means the period of time during which the construction project is used in reality, ensuring conformance to safety and utility requirements.

17. Construction warranty means the contractor's commitment to become liabilities to mitigate and correct, within a certain period of time, damages and defects that may occur during the period of operation and use of a construction project.

18. Owner of construction project means an individual or organization that has the right to own a construction project in accordance with law.

19. Manager or user of a construction project is the owner in the case where the owner directly manages or uses the work or is the person authorized by the owner of the construction project to manage and use that construction project in the case where the owner does not directly manage or use the construction project, or is the person who manages or uses the construction project in accordance with relevant laws.

20. Safety in construction activities refers to a solution to prevent and combat the impacts of dangerous and harmful factors to protect people from any injury, death or health impairment, and prevent any incident causing occupational unsafety that may occur during the construction process.

21. Construction safety management means the act of management of entities participating in construction activities under the provisions of this Decree and other relevant laws in order to assure safety for construction activities.

22. Periodic assessment of safety of construction project (hereinafter referred to as construction safety assessment) refers to the periodic examination and appraisal of the bearing capacity and conditions necessary for safe use and operation of a construction project.

Article 3. Classification and grading of construction projects

1. Construction projects shall be classified by structural properties and utility as follows:

a) Construction projects are classified by structural properties into housing structures; bridges, roads, tunnels, ports; pillars, towers, storage tanks, silos, retaining walls, dykes, dams, embankments; piping or other structures;

b) Construction projects are classified by their utility into those used for civil purposes; those used for industrial production purposes; those providing technical infrastructure facilities and amenities; those supporting traffic and transportation activities; those supporting agricultural production and rural development activities; those used for national defense and security purposes and detailed in Appendix I to this Decree.

The utility of a construction project can be created by an independent building, a complex of construction works or a technological line consisting of multiple items that have a mutual relationship with each other to create the shared function. A construction investment project may have one, several independent works or a main complex or a main technological line. A construction work belonging to a construction complex or a technological line is a construction item belonging to a complex or a technological line.

2. Construction grades specific to construction projects prescribed in Point a of Clause 2 of Article 5 in the Law on Construction dated June 18, 2014 (hereinafter referred to as Law No. 50/2014/QH13), which is amended and supplemented by Clause 3 of Article 1 of the Law on amendments and supplements to a number of articles of the Law on Construction dated June 17, 2020 (hereinafter referred to as Law No. 62/2020/QH14) shall be used for the management of construction investment activities in accordance with regulations on grades of construction works issued by the Minister of Construction.

3. The Minister of National Defense and the Minister of Public Security shall set out regulations on the use of construction grades specified in Clause 2 of this Article for the management of investment in construction projects used for national defense and security purposes.

Article 4. Specialized construction experiments, construction observation and construction surveys

1. Specialized construction experiments, construction observations and surveys are measurement activities carried out during the construction process to determine the technical parameters and positions of materials, components and project constituents, and support construction and acceptance testing or commissioning activities.

2. Specialized construction experiments must be conducted by qualified organizations and individuals in accordance with laws.

3. Organizations and individuals conducting specialized construction experiments, construction observations and surveys shall be responsible for providing data in an honest, objective manner and for the accuracy of data and figures that they provide.

4. Building contractors shall be responsible for conducting specialized construction experiments, observations and surveys of construction projects during the construction process according to the relevant provisions of construction contracts and technical regulations and standards.

Article 5. Controlled experimentation, construction testing, experimentation of bearing capacity of building structures

1. Controlled experiments are conducted during the construction process in the following cases:

a) They are prescribed in technical instructions or construction contracts;

b) They take place when building materials, products or equipment installed in construction projects or construction works show any sign of failure to meet quality requirements set out in design documentation;

c) They are conducted at the requests of specialized construction authorities.   

2. Construction testing, experimentation on the bearing capacity of building structures may be required in the following cases:

a) As prescribed in technical instructions or construction contracts;

b) Completed construction works show any sign of failure to meet quality requirements set out in design documentation, or there is a lack of grounds for quality assessment, acceptance testing or commissioning;

c) At the requests of authorities having competence in entering into public-private partnership project agreements;

d) At the requests of authorities having competence in examining acceptance testing activities under the provisions of clause 2 of Article 24 herein;

dd) The owner of a construction project wishes to extend its design life which is bound to expire;

e) Construction projects in operation or in use pose a risk of danger or unsafety;

g) Construction testing activities are carried out to assist in maintenance activities.

3. Contents of a construction testing:

a) Quality inspection of construction parts and construction works;

b) Inspection and testing for causes of damage, causes of any incident, breakdown or failure and the useful life of construction project constituents and projects;

c) Inspection of quality of building materials, components and products.

4. Costs and expenses of a construction testing:

a) Costs of the construction testing are determined by making an estimate in accordance with the law on construction cost management and other relevant law provisions in accordance with the contents and volume of works agreed upon in the contract between parties or the approved assessment and testing protocol;

b) During the construction process, the construction design contractor, the building contractor, the contractor supplying and manufacturing construction products or other relevant contractors must bear testing costs if the results obtained after assessment and testing of the work performed on their part prove that the faults lie with them. In other cases, the costs of conducting the construction assessment and testing must be included in total investment amount;

c) The owner or the manager or the user of the construction project shall be responsible for paying assessment and testing costs during the period of operation and exploitation. If the assessment and test results prove that the fault lies with an entity or person, that entity or person must bear inspection and testing costs in proportion to such fault.

Article 6. Construction inspection

1. Contents of a construction inspection:

a) Inspection of the quality of the construction survey, the construction design, building materials, components and products, parts and the entire construction project;

b) Inspection of the causes of the damage, incident, breakdown or failure at the construction project according to the provisions of Chapter IV of this Decree;

c) Other contents of construction inspection.

2. Authorities having competence in heading a construction inspection:

a) Provincial People's Committees conduct the inspection of construction projects located within their localities, except the cases specified at Points b and c of this Clause;

b) The Ministry of National Defense and the Ministry of Public Security conduct the inspection of national defense and security projects;

c) Ministries in charge of specialized construction works conduct the inspection of construction works when being assigned by the Prime Minister to do so;

d) Authority to head the inspection of the causes of an incident, breakdown or failure shall be subject to Clause 1 Article 46 hereof.

3. Costs and expenses of a construction inspection shall be composed of several or all of the followings:

a) Costs and expenses for the construction inspection conducted by an inspection agency include per diem and other costs needed for the inspection;

b) Costs and expenses for hiring experts to participate in the construction inspection, including travel costs, costs of renting accommodations at the destination and expert remuneration;

c) Costs for hiring an entity to conduct the construction testing and assessment needed for the construction inspection which are determined by making an estimate in accordance with the law on investment and construction cost management and other relevant law provisions provided that such costs are appropriate for activities stated in the inspection protocol;

d) Other costs and expenses necessary for the inspection.

4. Investors, owners or managers and operators or users of construction projects shall be responsible for paying costs to inspection organizations. If the inspection results prove that the fault lies with an entity or person which is involved, that entity or person must bear inspection costs in proportion to such fault, and must be responsible for taking remedial actions.

Article 7. Segregation of liabilities between entities and persons for management of construction activities

1. Entities and persons directly relating to construction activities, including:

a) Investors or investor’s representatives (if any);

b) Building contractors;

c) Contractors supplying construction products, building materials, components and equipment installed at construction projects;

d) Consulting contractors, including: surveying, designing, project management, supervision, experimentation, testing and other consulting contractors.

2. In order to participate in construction activities, contractors referred to in Points b, c and d, Clause 1 of this Article must meet the prescribed capacity conditions and must directly and totally bear legal liability for quality and safety of the works performed on their part before the law, to investors, and to main contractors if they are subcontractors. Main contractors must be accountable to investors for the works that subcontractors perform.

3. Upon entering into a consortium,  contractors as members of the consortium shall assume responsibility for the quality of the works they perform on their part as defined in the written partnership agreement that must clearly defines the liability of the lead member of the consortium, the joint and several responsibility of each consortium member, and clearly defines the scope and volume of the works performed by each consortium member. Those must be specified in a construction contract with the investor.

4. Under engineering, procurement and construction contracts (hereinafter referred to as EPC contract) or lump-sum turnkey contracts, general contractors shall take charge of quality control, supervision of the construction works on their part and the works performed by subcontractors; carry out other liability assigned by investors under terms and conditions of construction contracts.

5. Investors shall be responsible for management of construction works according to investment, project management, contracting forms, scales and funding sources during the investment and construction period; management of construction works includes those specified in Clause 1, Article 10 of this Decree; construction supervision, pre-commissioning testing of construction works, parts, items and construction projects; commissioning for putting construction projects in use or into operation according to the provisions of this Decree and relevant laws. Investors shall have autonomy in carrying out construction works provided that they meet capability requirements set out in laws. Pre-commissioning tests conducted by investors shall not function as replacement for or reduction in the liability of contractors participating in construction works with respect to the works performed by contractors on their part.

6. In case an investor establishes a construction project management unit or assign tasks to a specialized construction project management unit or regional construction project management unit:

a) The investor may authorize or assign the project management unit to perform one or several works on the investor's part in the management of construction works in accordance with this Decree and such authorization or assignment must be documented. The investor must direct, inspect and take responsibility for the tasks authorized or assigned to the project management unit;

b) The project management unit shall be responsible before law and to the investor for the execution of the authorized or assigned tasks specified at Point a of this Clause.

7. In case an investor hires a project management consultancy contractor or a construction supervision contractor:

a) The investor may authorize this contractor to perform one or several works on the investor’s part in the management of construction works through a construction contract. The investor shall be responsible for supervising the implementation of the construction contract, handling related issues between contractors involved in the construction project and with local authorities during the project implementation period;

b) Project management consulting contractor or construction supervision contractor shall be responsible before law and to the investor for the assigned works in accordance with the contract and relevant laws.

8. Under an EPC contract or a lump sum turnkey contract, the investor shall be responsible for inspecting and expediting the implementation of construction management activities as agreed upon in the construction contract; conducting the pre-commissioning test on the construction item, construction project, commissioning and transfer of the construction project before being put into operation and in use.

9. With respect to PPP projects:

a) PPP project enterprises shall implement the investor's construction management responsibilities according to the provisions of this Decree;

b) Contracting authorities under the law on public-private partnership investment shall undertake the implementation of the provisions of Clause 8, Article 19 of this Decree. In case competent authorities delegate authority to their affiliates or units to act as the contracting agencies, competent agencies must direct, inspect and take responsibility for the activities performed by contracting agencies; contracting agencies shall be responsible to competent authorities and the law for the performance of the trusted activities.

10. Rights, obligations and segregation of liabilities of those specified in Clause 1 of this Article must be prescribed in contracts and in accordance with the law.

Article 8. Construction quality awards

1. Construction quality awards, including:

a) National award for the quality of construction projects;

b) Award for high-quality construction projects and other quality awards.

2. Contractors who win wards for the quality of construction projects specified in Clause 1 of this Article may be granted priority when participating in construction tenders in accordance with the law on bidding. Awards accepted as the basis to consider giving priority to bidders are those that they have won in the period of 3 years preceding the date of submission of application for bids. Investors must include the aforesaid regulations in their invitations to bid.

3. The Ministry of Construction shall organize and approve construction quality awards according to the provisions of Clause 4, Article 162 of Law No. 50/2014/QH13.

Article 9. Management of detached house construction

1. The management of the construction of detached houses must adhere to the rules under which safety for people, property, equipment, entire construction projects, other adjacent facilities and ambient environment must be ensured.

2. Design of detached houses of families and persons:

a) Investors in detached houses built for family or personal needs without basements and with  total construction floor area of ​​less than 250 m² or less than 3 floors, or with less than 12m in height, per each may exercise the freedom of design;

b) Design of detached houses built for family and personal needs with under 7 floors or with 1 basement, except for the case specified at Point a of this Clause, must be made by qualified organizations or individuals in accordance with laws;

c) Design documentation of detached houses built for household or individual needs with 7 floors or more or with 02 basements or more must be subject to the construction design verification regarding the construction safety before applying for construction permits. Design and design verification must be conducted by qualified and competent organizations and individuals under laws.

3. Management of construction of detached houses for family and personal needs:

a) Investors in the construction of detached houses conduct, supervise construction works and bear responsibility for construction safety. Investors in the construction of detached houses are encouraged to take charge of supervising construction works, compiling and archiving detached house dossiers according to the provisions of this Decree, except the case specified at Point b of this Clause;

b) Construction and supervision of construction of detached houses built for family and personal needs prescribed in point c of this clause must be carried out by qualified organizations or individuals.

4. Scope of supervision of construction of detached houses for family and personal needs:

a) Methods of construction, safety measures for houses and adjacent or contiguous property;

b) Quality of building materials, components and equipment before being in use;

c) Scaffolding systems, temporary supporting structures, building machinery and equipment;

d) Occupational safety and environmental controls.

5. In addition to being covered by the provisions of this Article, the construction of detached houses belonging to construction projects must conform to other relevant laws and regulations of laws on construction project management.