Chương IV Nghị định 12/2009/NĐ-CP: Điều kiện năng lực của tổ chức, cá nhân trong hoạt động xây dựng

Chapter IV

CAPABILITY CONDITIONS OF ORGANIZATIONS AND INDIVIDUALS ENGAGED IN CONSTRUCTION ACTIVITIES

Article 36. General provisions on capability conditions of organizations and individuals

1. In order to carry out construction activities, organizations and individuals must be fully capable for specific kinds of projects, classes and grades of works and jobs as provided for in this Decree.

2. Organizations and individuals must be fully capable to carry out the following activities:

a/ Formulation of investment projects on the construction of works;

b/ Management of investment projects on the construction of works;

c/ Construction planning designing;

d/ Construction designing;

e/ Construction survey;

f/ Construction;

g/ Construction supervision;

h/ Specialized construction testing;

i/ Quality inspection of construction works;

j/ Certification of force-bearing safety eligibility of construction works and certification of quality conformity of construction works.

The capability of organizations and individuals to carry out the above construction activities shall be expressed in the form of practicing certificates or capability conditions relevant to jobs they perform.

3. In order to carry out construction activities, individuals must possess diplomas or certificates relevant to jobs they perform, which are issued by lawful training institutions.

4. Holders of the title of manager of construction-planning design or construction design blueprint; designing manager; construction survey manager; or construction supervisor, and independent practitioners that perform construction planning designing, construction designing or construction supervision must possess practicing certificates as required. To join in project management, individuals must possess certificates of professional qualifications in the management of investment projects on the construction of works.

5. To ensure the quality of construction works, organizations and individuals carrying out construction activities must have sufficient capability suitable to each bidding package or specific job.

6. The construction activity capability of organizations shall be classified into different ranks, depending on the construction-practicing capability of their individual employees and their construction experience, financial capacity, equipment and managerial capability.

The Ministry of Construction shall establish a national system of information on capability and activities of construction consultants and construction contractors, including foreign construction contractors in Vietnam.

7. For projects funded with state budget, state-guaranteed credit or the State's development investment credit, contractors that make technical designs or working drawing designs may not sign construction supervision consultancy contracts with investors, for works designed by the contractors, while construction supervision contractors may not sign contracts with construction contractors that inspect the quality of construction works, for works supervised by supervision contractors, unless it is permitted by investment deciders.

8. When selecting contractors to perform construction jobs, investors shall base themselves on this Decree's provisions on capability conditions and take responsibility before law for damage caused by their selection of contractors incapable to perform certain jobs.

Article 37. Practicing certificates

1. Practicing certificate is a written practicing-capability certification granted to an engineer or architect who is professionally qualified and experienced for practicing construction planning designing, construction survey, designing or supervision.

2. Practicing certificates shall be made according to set forms and are valid nationwide. A practicing certificate must clearly indicate the permitted practicing scope and domain.

3. Construction practicing certificates shall be granted by directors of provincial-level Construction Services who shall decide to set up advisory councils to assist them in granting construction practicing certificates under regulations.

Article 38. Conditions for grant of architect's practicing certificates

To be granted architect's practicing certificates, applicants must have a university or higher degree in the architecture or construction planning discipline, have at least 5 years' experience in designing and have joined in making architectural designs for at least 5 works or 5 approved construction planning blueprints.

Article 39. Conditions for grant of engineer's practicing certificates

To be granted engineer's practicing certificates, applicants must have a university or higher degree in a discipline relevant to the domain in which they apply for practicing registration, have at least 5 years' experience in such domain and have joined in making designs or conducting surveys for at least 5 works.

Article 40. Conditions for grant of construction supervisor's practicing certificates

1. To be granted construction supervisor's practicing certificates, applicants must have a university or higher degree in a discipline relevant to the domain in which they apply for practicing registration; have personally joined in designing or construction for at least 3 years or 5 works, or have experience in construction supervision for at least 3 years before the Construction Law takes effect; and have attended a training course on construction supervision operations.

2. Persons who have a collegial or secondary education degree in a relevant discipline, have personally joined in designing, construction or construction supervision for at least 3 years, and have attended a training course on construction supervision operations, will be granted construction supervisor's practicing certificates. These certificates will be valid for supervision of grade-IV works only.

Article 41. Capability conditions for project formulation managers

1. Project formulation managers are classified into 2 classes, depending on categories of works. Project formulation managers must have a university degree in a discipline relevant to the nature and requirements of projects, and satisfy relevant conditions for each of the classes below:

a/ Class 1: having continuously worked in project formulation for at least 7 years, having worked as managers for formulating one group-A project or 2 group-B projects of the same category, or having worked as class-1 designing managers for works of the same type with projects.

b/ Class 2: having continuously worked in project formulation for at least 5 years, having worked as managers for formulating one group-B project or 2 group-C projects of the same category, or having worked as designing managers of class 2 or class 1 for works of the same category with projects.

c/ Particularly for deep-lying and remote areas, persons who have a collegial or secondary education degree in a discipline relevant to the category of projects, have continuously worked in project formulation or designing for at least 5 years will be recognized as class-2 project formulation managers.

2. Scope of activity:

a/ Class-1 project formulation managers may work as project formulation managers of projects of national importance and projects of groups A, B and C of the same category;

b/ Class-1 project formulation managers may work as project formulation managers of projects of groups B and C of the same category;

c/ Unranked persons may work as managers for formulating econo-technical reports on the construction of works of the same category; persons who have worked as mangers for formulating 5 econo-technical reports on the construction of works may work as managers for formulating group-C projects of the same category.

Article 42. Capability conditions for project-formulation consultancy organizations

1. Depending on categories of projects, project-formulation consultancy organizations are classified into 2 classes below:

a/ Class 1: having at least 20 architects, engineers and economic engineers who meet the requirements of projects, including those eligible for working as class-1 project formulation managers or class-1 designing managers of works of the same category;

b/ Class 2: having at least 10 architects, engineers and economic engineers who meet the requirements of projects, including those eligible for working as class-2 project formulation managers or class-2 designing managers of works of the same category.

2. Scope of activity:

a/ Class-1 project-formulation consultancy organizations may formulate projects of national importance and projects of groups A, B and C of the same category;

b/ Class-2 project-formulation consultancy organizations may formulate projects of groups B and C of the same category;

c/ Organizations unqualified for any class may only make econo-technical reports of works of the same category.

Article 43. Capability conditions for project-management consultancy directors

1. Project-management consultancy directors are classified into 2 classes depending on categories of projects. Project-management consultancy directors must have a university degree in a construction discipline relevant to the requirements of projects, possess a project management certificate and satisfy conditions for each of the classes below:

a/ Class-1 project-management consultancy directors: having worked continuously in designing or construction for at least 7 years, having worked as project-management consultancy directors or deputy directors of one group-A project or 2 group-B projects of the same category, or having worked as class-1 construction-site chief commanders or class-1 designing managers;

b/ Class-2 project-management consultancy directors: having worked continuously in designing or construction for at least 5 years, having worked as project-management consultancy directors or deputy directors of one group-B project or 2 group-C projects of the same category, or having worked as class-2 construction-site chief commanders or class-2 designing managers.

c/ For deep-lying and remote areas, persons who have a collegial or secondary education degree in a construction discipline relevant to the category of works, have at least 5 years' experience in project formulation, designing or construction may hold the title of class-2 project-management consultancy director.

2. In case investors set up project management units, project management directors must have a university or higher degree in a relevant discipline, possess a project management certificate and have at least 3 years' professional experience. Particularly for group-C projects in deep-lying and remote areas, project management directors may be persons having a collegial or secondary education degree in a relevant discipline and having at least 3 years' professional experience. Investors may appoint persons in their apparatuses or hire other persons satisfying the above conditions to work as project management directors.

3. Scope of activity:

a/ Class-1 project-management consultancy directors may manage projects of national importance and projects of groups A, B and C;

b/ Class-2 project-management consultancy directors may manage projects of groups B and C;

c/ Unranked persons may manage only econo-technical reports on the construction of works: persons who have managed 5 econo-technical reports on the construction of works may manage group-C projects of the same category.

Article 44. Capability conditions for project-management consultancy organizations

1. Project-management consultancy organizations are classified into 2 classes below:

a/ Class 1:

- Having class-l project-management consultancy directors suitable to the category of projects;

- Having at least 30 architects, engineers and economic engineers who meet the requirements of projects, including at least 3 economic engineers;

- Having managed at least one group-A project or 2 group-B projects of the same category.

b/ Class 2:

- Having class-1 or class-2 project-management consultancy directors suitable to the category of projects;

- Having at least 20 architects, engineers and economic engineers who meet the requirements of projects, including at least 2 economic engineers;

- Having managed at least one group-B project or 2 group-C projects of the same category.

2. Scope of activity:

a/ Class-1 project-management consultancy organizations may manage projects of national importance and projects of groups A, B and C;

b/ Class-2 project-management consultancy organizations may manage projects of groups B and C;

c/ Organizations unqualified for any class may manage econo-technical reports on the construction of works.

3. Project-management consultancy organizations which are unqualified for any class but have managed at least 5 econo-technical reports on the construction of works may manage group-C projects.

Article 45. Capability conditions for construction survey managers

1. Construction survey managers are classified into 2 classes below:

a/ Class 1: possessing an engineer's practicing certificate, having worked as manager of at least one survey task of works of grade I or higher grade, or 5 survey tasks of grade-II works;

b/ Class 2: possessing an engineer's practicing certificate, having worked as manager of at least one survey task of works of grade II or 3 survey tasks of grade-Ill works, or having joined in at least 5 survey tasks of works of grade II or higher grade.

2. Scope of activity:

a/ Class-1 construction survey managers may work as survey managers of works of special-grade and grades I, II, III and IV of the same category;

b/ Class-2 construction survey managers may work as survey managers of works of grades II, III and IV of the same category;

c/ For topographical surveys, survey managers may act as managers of surveys of all sizes.

Article 46. Capability conditions for construction-survey consultancy organizations

1. Construction-survey consultancy organizations are classified into 2 classes below:

a/ Class 1:

- Having at least 20 engineers meeting requirements of survey tasks, including those eligible for working as class-1 survey managers;

- Having sufficient equipment suitable to each type of survey and standard laboratories;

- Having performed at least one survey task of special-grade or grade-I works of the same category or 2 survey tasks of grade-II works of the same category.

b/ Class 2:

- Having at least 10 engineers meeting requirements of survey tasks, including those eligible for working as class-2 survey managers;

- Having sufficient survey equipment for conducting survey of each type;

- Having performed at least one survey task of grade-II works of the same category or 2 survey tasks of grade-Ill works of the same category.

2. Scope of activity:

a/ Class-1 construction-survey consultancy organizations may perform survey tasks of works of special grade and grades I, II, III and IV of the same category;

b/ Class-2 construction-survey consultancy organizations may perform survey tasks of works of grades II, III and IV of the same category;

c/ For topographical surveys, only class-1 and class-2 survey organizations may conduct topographical surveys of all sizes.

3. For construction survey organizations which are unqualified for any class but have performed at least 5 construction survey tasks of grade-IV works may perform construction survey tasks of grade-III works of the same category.

Article 47. Capability conditions for construction designing managers

1. Construction designing managers are classified into 2 classes below:

a/ Class 1:

- Having an architect's or engineer's practicing certificate relevant to jobs they perform;

- Having worked as designing managers of at least one special-grade or grade-I work or 2 grade-II works of the same category, or having worked as chief designers in one principal professional domain of 3 special-grade or grade-I works of the same category.

b/ Class 2:

- Having an architect's or engineer's practicing certificate relevant to jobs they perform;

- Having worked as designing managers of at least one grade-II work or 2 grade-III works of the same category, or having worked as chief designers in one principal professional domain of 3 grade-II works of the same category.

2. Scope of activity:

a/ Class-1 construction designing managers may work as designing managers of works of special grade and grades I. II, III and IV of the same category, and as managers for formulating projects of groups A. B and C of the same category;

b/ Class-2 construction designing managers may work as designing managers of works of grades II, III and IV of the same category and as managers for formulating projects of groups B and C of the same category.

Article 48. Capability conditions for construction chief-designers

1. Construction chief-designers are classified into 2 classes below:

a/ Class 1:

- Having an architect's or engineer's practicing certificate relevant to jobs they perform;

- Having worked as chief designers of at least one special-grade or grade-I work or 2 grade-II works of the same category.

b/ Class 2:

- Having an architect's or engineer's practicing certificate relevant to jobs they perform;

- Having worked as chief designers of at least one grade-II work or 2 grade-III works of the same category, or having joined in designing 5 works of the same category.

c/ Particularly for deep-lying and remote areas, persons having a collegial or secondary education degree in a discipline relevant to the category of works, having worked continuously in designing for at least 5 years may work as chief designers of grade-III or grade-IV works, except works subject to force-bearing safety inspection and certification under regulations.

2. Scope of activity:

a/ Class-1 construction chief-designers may work as chief designers in relevant professional domains for works of special grade and grades I, II, III and IV;

b/ Class-2 construction chief-designers may work as chief designers in relevant professional domains for works of grades II, III and IV.

Article 49. Capability conditions for construction-designing consultancy organizations

1. Depending on the category of works, construction-designing consultancy organizations are classified into 2 classes below:

a/ Class 1:

- Having at least 20 architects and engineers trained in relevant disciplines, including those eligible for working as class-1 construction designing managers;

- Having sufficient class-1 chief designers trained in disciplines relevant to works of the same category;

- Having designed at least one special-grade or grade-I work or 2 grade-II works of the same category.

b/ Class 2:

- Having at least 10 architects and engineers trained in relevant disciplines, including those capable of working as class-2 construction designing managers;

- Having sufficient class-2 chief designers trained in disciplines relevant to works of the same category;

- Having designed at least one grade-II work or 2 grade-III works of the same category.

2. Scope of activity:

a/ Class-1 construction-designing consultancy organizations may design works of special grade and grades I, II, III and IV of the same category; and formulate projects of national importance and projects of groups A, B and C of the same category;

b/ Class-2 construction-designing consultancy organizations may design works of grades II, III and IV of the same category: and formulate projects of groups B and C of the same category;

c/ Organizations ineligible for being classified may design grade-IV works of the same category and formulate economic-technical reports on the construction of works of the same category.

3. Designing consultancy organizations which are unqualified for any class but have designed at least 5 grade-IV works may design grade-III works of the same category.

Article 50. Capability conditions for construction-designing chief verifiers and construction-designing verification consultancy organizations

1. The capability conditions of construction-designing chief verifiers are similar to those for construction chief designers as specified in Article 48 of this Decree.

2. The capability conditions of construction-designing verification consultancy organizations are similar to those for construction-designing consultancy organizations as specified in Article 49 of this Decree.

Article 51. Capability conditions of construction-supervision consultancy organizations

1. Depending on the category of works, construction supervision organizations are classified into 2 classes below:

a/ Class 1:

- Having at least 20 persons who possess a construction supervision-practicing certificate in a relevant discipline;

- Having supervised the construction of at least one special-grade or grade-I work or 2 grade-II works of the same category.

b/ Class 2:

- Having at least 10 persons who possess a construction supervision-practicing certificate in a relevant discipline;

- Having supervised the construction of at least one grade-II work or 2 grade-III works of the same category.

2. Scope of activity:

a/ Class-1 construction-supervision consultancy organizations may supervise the construction of works of special grade and grades I, II, III and IV of the same category;

b/ Class-2 construction supervision consultancy organizations may supervise the construction of works of II, III and IV of the same category;

c/ Organizations unqualified for any class may supervise the construction of grade-IV works of the same category.

3. For construction-supervision consultancy organizations which are unqualified for any class but have supervised the construction of at least 5 grade-IV works may supervise the construction of grade-III works of the same category.

Article 52. Capability conditions for construction-site chief commanders

1. Construction-site chief commanders are classified into 2 classes. Construction-site chief commanders must possess a university or higher-degree diploma in a discipline relevant to the category of works and satisfy the conditions for each of the classes below:

a/ Class 1:

- Having worked continuously in construction for at least 7 years;

- Having worked as construction-site chief commanders of one special-grade or grade-I work or 2 grade-II works of the same category.

b/ Class 2:

- Having worked continuously in construction for at least 5 years;

- Having worked as construction-site chief commanders of one grade-II work or 2 grade-III works of the same category.

c/ For deep-lying and remote areas, persons who have a collegial or secondary education degree in a construction discipline relevant to the category of works and have at least 5 years" construction experience may hold the title of class-2 chief commander.

2. Scope of activity:

a/ Class-1 construction-site chief commanders may work as chief commanders of works of special grade and grades I, II, III and IV of the same category;

b/ Class-2 construction-site chief commanders may work as chief commanders of works of II, III and IV of the same category;

c/ Unranked persons may work as chief commanders of grade-IV works only; persons who have worked as chief commanders of 5 grade-IV works may work as chief commanders of grade-III works of the same category.

Article 53. Capability conditions for construction organizations

1. Depending on the category of works, construction organizations are classified into 2 classes below:

a/ Class 1:

- Having class-1 chief commanders of works of the same category;

- Having sufficient architects and engineers trained in disciplines relevant to the category of works to be constructed;

- Having sufficient technicians who possess a training certificate relevant to jobs they perform;

- Having major construction equipment for the construction of works;

- Having constructed at least one special-grade or grade-I work or 2 grade-II works of the same category.

b/ Class 2:

- Having class-1 or class-2 chief commanders of works of the same category;

- Having sufficient architects and engineers trained in disciplines relevant to the category of works to be constructed;

- Having sufficient technicians who possess a training certificate relevant to jobs they perform;

- Having major construction equipment for the construction of works;

- Having constructed at least one grade-II work or 2 grade-III works of the same category.

2. Scope of activity:

a/ Class-1 construction organizations may construct works of special grade and grades I, II. III and IV of the same category;

b/ Class-2 construction organizations may construct works of grades II, III and IV of the same category;

c/ Organizations unqualified for any class may construct renovation or repair works capitalized at under VND 3 billion and individual houses.

3. Construction organizations which are ineligible for being ranked but have constructed 3 renovation works may construct grade-IV works and then, if having constructed at least 5 grade-IV works, may construct grade-III works of the same category.

Article 54. Conditions for independent construction designing, survey or supervision practitioners

1. The conditions for independent construction designing, survey or supervision practitioners are specified as follows:

a/ Having a practicing certificate relevant to the domain of practice;

b/ Having business registration for practicing construction designing, survey or supervision as prescribed by law.

2. Scope of activity:

a/ Independent construction-survey practitioners may advise investors only on the elaboration of survey tasks and evaluation and approval of the results of surveys of the types specified in their certificates;

b/ Independent construction-designing practitioners may design grade-IV works of the same category and individual houses;

c/ Independent construction-supervision practitioners may supervise the construction of grade-IV works of the same category and individual houses.

3. Independent practitioners shall operate in accordance with law.

Article 55. Rights and obligations of practicing certificate holder

1. Practicing certificate holders may:

a/ Use their practicing certificates for performing jobs in accordance with law;

b/ Complain about and denounce acts violating regulations on the grant of practicing certificates.

2. Obligations of practicing certificate holders:

a/ To attend training courses on professional operations related to construction designing, survey or supervision practicing;

b/ To perform only construction designing, survey or supervision jobs indicated in their practicing certificates;

c/ To take responsibility before law for details of dossiers they compile and for the quality of jobs they perform;

d/ Not to erase or lend their practicing certificates.

Article 56. Capability conditions for foreign individuals and organizations carrying out construction activities in Vietnam

To practice project formulation, project management, construction survey, construction designing, construction design verification, construction or construction supervision in Vietnam, foreign organizations and individuals must be fully capable as provided for in this Decree and guided by the Ministry of Construction.