Chương 2 Nghị định 16/2005/NĐ-CP: Lập, thẩm định, phê duyệt dự án đầu tư xây dựng công trình

Chapter II

FORMULATION, EVALUATION AND APPROVAL OF INVESTMENT PROJECTS FOR CONSTRUCTION OF WORKS

Article 4 Formulation of investment reports for construction of works and applications for permission for investment

1. For important national investment projects, an investment report for construction of works must be formulated and submitted to the National Assembly to pass the investment policy and to grant permission for the investment. For Group A projects, irrespective of their capital funding source, an investment report for construction of works must be formulated and submitted to the Prime Minister of the Government to grant permission for the investment.

2. An investment report for construction of works shall contain the following particulars:

(a) Necessity for the investment in construction of the works; favourable and unfavourable conditions; regime for exploitation and use of national natural resources, if any;

(b) Estimate of scale of investment; output; construction area; items of works, including main, subsidiary and other works; proposed building site and requirement for land use;

(c) Preliminary analysis and selection of technology and technical matters; conditions for supply of materials, equipment, raw materials, energy, services and technical infrastructure; plan for site clearance and resettlement, if any; impact of project on environment and ecology; fire and explosion fighting and prevention, impact on national defence and security;

(d) Form of investment; preliminary determination of total investment; duration for implementation of project; plan to raise capital in accordance with the schedule, socio-economic effectiveness of project, and investment stages, if any.

3. Application for permission to invest in construction of works:

(a) The investor shall be responsible for forwarding the investment report for construction of works to the ministry managing the branch, which shall be the co- ordinating body assisting the Prime Minister of the Government to obtain opinions from relevant ministries, branches and localities and submitting proposals to the Prime Minister of the Government.

(b) Time-limit for obtaining opinions:

Within a time-limit of five working days from the date of receipt of an investment report for construction of works, the ministry managing the branch shall send a written request to relevant ministries, branches and localities for their opinions.

Within a time-limit of thirty (30) working days from the date of receipt of a request, any body being requested for its opinion shall send a written reply on items within the scope of management of such body and, within seven days from the date of receipt of such written replies, the ministry managing the branch shall prepare a report for submission to the Prime Minister of the Government.

(c) Reports submitted to the Prime Minister of the Government shall contain:

Summary of the contents of the investment report; summary of the opinions obtained from ministries and branches; and proposal on granting permission to invest in construction of the works, enclosing the original written replies received from the relevant ministries, branches and localities.

Article 5 Formulation of investment projects for construction of works

1. An investor in construction of works shall be responsible for arranging formulation of the project in order to clarify the necessity for the investment and its effectiveness, except in the following cases:

(a) Works which only require preparation of an eco-technical report on construction of works as stipulated in article 12.1 of this Decree;

(b) Construction of a separate dwelling-house for citizens as stipulated in article 35.5 of the Law on Construction.

2. The contents of a project shall include an explanatory section as stipulated in article 6 of this Decree and a preliminary designs section as stipulated in article 7 of this Decree.

3. With respect to Group B projects not yet included in a socio-economic master plan, in master planning for branches and in construction master plans, there must be written approval from the body authorized to approve master planning prior to formulation of the project.

Article 6 Contents of explanatory section of project

1. Necessity for and objectives of the investment; assessment of market demand and product consumption in the case of a manufacturing project; business form of the investment for construction of works; location of the building site and requirement for land use; conditions for supply of raw materials, energy and other input items.

2. Description of the scale and area of the building works and the items of works, including main, subsidiary and other works; analysis and selection of technological and technical plans and output.

3. Construction solutions, comprising:

(a) Plan for site clearance and resettlement, and plan for assistance with construction of technical infrastructure if any;

(b) Architectural design plans in the case of urban construction works and other works with architectural requirements;

(c) Plan for project operation and employment of labour;

(d) Stages of implementation, schedule for implementation, and form of project management.

4.Environmental impact assessment; solutions for fire and explosion fighting and prevention; any requirements regarding national defence and security.

5. Determination of the total investment, the ability to raise capital and funding sources and the ability for such capital to be issued on schedule; plan for recovery of capital in the case of a project which requires to recover its capital; other financial criteria and analysis and assessment of the economic and social effectiveness of the project.

Article 7 Contents of preliminary designs section of project

1. The contents of the preliminary designs section of a project must express the basic design solutions, ensuring satisfaction of conditions for determining total invested capital and for undertaking the subsequent design steps, including an explanatory statement and drawings.

2. Either there must be a separate explanatory statement of the preliminary designs or the drawings must contain an explanatory statement in order that there will be design solutions in relation to the following basic particulars:

(a) Summary of design tasks; summarized introduction about the relationship between the works and construction master planning in the area; data on the natural conditions, load capacity and impact; list of applicable standards and specifications;

(b) Technological explanatory statement; summarized introduction about the technological plan and technological drawings; list of technological equipment with basic technical parameters relevant to construction design;

(c) Explanatory statement about construction:

- General outline on total surface areas; summarized introduction about the special features of the horizontal surfaces, and on sectional planes and vertical planes; technical infrastructure system and interconnection points; area of land to be used; height of foundations and other essential items;

- Construction works built along a route shall contain summarized introduction about the special features of the route, the building height and building co-ordinates; plan for dealing with the main physical obstructions along the route; safety corridors along the route and other special features of the works, if any;

- Construction works with architectural requirements shall contain summarized introduction about the relationship between the works and construction master planning in the area and adjacent buildings; theory behind the plan on architectural design; colour of the works; and design solutions which conform with the climatic, environmental, cultural and social conditions of the area in which construction is to take place;

- Technical section: summarized introduction about the special geological features of the works; plan for reinforcing foundations, main weight-bearing structures, technical system and technical infrastructure system of the works, of the horizontal surfaces and of excavated areas; list of software used in the design;

- Summarized introduction about the plans for fire and explosion fighting and prevention and for environmental protection;

- Estimated volume of building work and equipment which provides sufficient material for preparing the total level of invested capital and the duration for construction of the works.

3. The contents of preliminary design drawings shall comprise:

(a) Technological drawings, showing diagrams of technological lines with basic technical parameters;

(b) Construction drawings, showing solutions on total surface areas; and architecture, structure, technical system and technical infrastructure system of the works with the main measurements and volumes, boundary landmarks, and sectional and vertical planes;

(c) Preliminary drawings of the system for fire and explosion fighting and prevention.

4. In the case of an investment project for construction of works for production or business purposes, depending on the nature and contents of the project, a number of the items required for preliminary designs as stipulated in clause 2 of this article may be exempted, but there must be sufficient material to satisfy the requirements on master planning, on architecture, on fixing the total level of invested capital and for calculating the investment effectiveness of the project.

5. At least nine sets of the explanatory statements about the design and of preliminary design drawings must be prepared.

Article 8 File for submission for approval of investment project for construction of works

1. The investor shall be responsible for forwarding a file on the investment project for construction of works to the person making the investment decision for approval.

2. A file on an investment project for construction of works shall contain:

(a) Submission for approval of the project in accordance with Appendix 2 to this Decree;

(b) Project including explanatory section and preliminary designs section; and written evaluation from relevant ministries and branches (if any);

(c) Written permission for the investment from the competent level in the case of important national projects and Group A projects.

Article 9 Authority to evaluate investment projects for construction of works

1. Evaluation of investment projects for construction of works shall comprise evaluation of the explanatory section and evaluation of the preliminary designs section of the project.

2. The State Evaluation Council for Investment Projects is established in accordance with a decision of the Prime Minister of the Government for evaluation of investment projects for which the National Assembly approves the policy and for evaluation of other projects at the request of the Prime Minister of the Government.

3. Provincial people's committees shall organize the evaluation of projects funded by capital from the State Budget and within the scope of management of such people's committees. The person making the investment decision shall organize evaluation of other projects.

4. Evaluation of preliminary designs for Group A projects shall be regulated as follows:

(a) The Ministry of Industry shall evaluate the preliminary designs for investment projects for construction of works being mines, petroleum works, power plants, power transmission lines, transformer stations and other specialized industrial works;

(b) The Ministry of Agriculture and Rural Development shall evaluate the preliminary designs for investment projects for construction of irrigation works and dykes;

(c) The Ministry of Transport and Communications shall evaluate the preliminary designs for investment projects for construction of traffic works;

(d) The Ministry of Construction shall evaluate the preliminary designs for investment projects for civil construction works and for industrial works (apart from industrial works evaluated by the Ministry of Industry) and other projects for construction of works at the request of the Prime Minister of the Government;

(e) With respect to investment projects for construction of works which concern a number of specialized industries, the ministry presiding over evaluation of preliminary designs shall be the ministry with the function of State administration of the industry with the decisive factor regarding the nature and objectives of the project, and shall be responsible to obtain opinions from the relevant ministries and branches.

5. Evaluation of preliminary designs for Group B and C projects of ministries, branches, localities and other economic sectors for construction in localities shall be regulated as follows:

(a) The Department of Industry shall evaluate the preliminary designs for investment projects for construction of works being mines, petroleum works, power plants, power transmission lines, transformer stations and other specialized industrial works;

(b) The Department of Agriculture and Rural Development shall evaluate the preliminary designs for investment projects for construction of irrigation works and dykes;

(c) The Department of Transport and Communications shall evaluate the preliminary designs for investment projects for construction of traffic works;

(d) The Department of Construction shall evaluate the preliminary designs for investment projects for civil construction works and for industrial works (apart from industrial works evaluated by the Department of Industry) and other projects for construction of works at the request of the chairman of a provincial people's committee;

(e) With respect to investment projects for construction of works which concern a number of specialized industries, the department presiding over evaluation of preliminary designs shall be the department with the function of State administration of the industry with the decisive factor regarding the nature and objectives of the project, and shall be responsible to obtain opinions from relevant departments.

6. The ministry stipulated in clause 4 of this article shall evaluate the preliminary designs for Group B and Group C projects for construction of works built along a route passing through a number of localities, and shall be responsible to obtain opinions from the relevant departments on construction master plans and environmental impact in the places where the works will be located.

7. The evaluation of investment projects for construction of works with an element of secrecy concerning national defence and security shall be implemented in accordance with regulations of the Government.

8. The investor shall be responsible to forward the project file to the competent State body stipulated in clauses 4, 5 or 6 of this article in order to obtain an evaluating opinion on the preliminary designs. The time-limit for evaluation of preliminary designs shall not exceed thirty (30) working days from the date of receipt of a complete and valid file for Group A projects, not exceed fifteen (15) working days for Group B projects, and not exceed ten (10) working days for Group C projects.

9. The time-limit for evaluation of projects, including evaluation of preliminary designs, shall not exceed sixty (60) working days from the date of receipt of a complete and valid file for Group A projects, not exceed thirty (30) working days for Group B projects, and not exceed twenty (20) working days for Group C projects. In special cases, the time-limit for evaluation of projects may be extended with permission from the person making the investment decision.

10. The Ministry of Finance shall, after reaching agreement with the Ministry of Construction, provide for the scale of fees for evaluation of projects, including evaluation of preliminary designs.

Article 10 Contents of evaluation of investment projects for construction of works

1. Project compliance with the master plan for socio-economic development, with master planning for branches and with construction master plans; if there is no such master planning, there must be approval from the competent State administrative body for such sector.

2. Explanatory statements on a project, implemented in accordance with article 6 of this Decree.

3. Project compliance with the investment report for construction of works already approved by the National Assembly or the Prime Minister of the Government, in the case of a project requiring formulation of such a report.

4. Compliance of the preliminary designs with construction master plans, scale of construction, technology, design capacity and level of works; data used in design with applicable standards and specifications; eco-technical criteria with the project requirements.

5. Compliance of the preliminary designs with the selected architectural designs, in the case where a competition has been held to select the architectural designs.

6. Reasonableness of the design solutions in the preliminary designs.

7. Conditions on operating capability of any consultancy organization and on practising capability of any individual formulating the project and preliminary designs in accordance with regulations.

Article 11 Authority to make decision on investment in construction of works

1. The Prime Minister of the Government shall make investment decisions for projects for which the National Assembly has approved the policy and granted permission for the investment.

2. With respect to other projects funded by capital from the State Budget:

(a) Ministers, heads of ministerial equivalent bodies and Government bodies, the financial management body of the Central Party, central bodies of political organizations and socio-political organizations, and chairmen of provincial people's committees shall make investment decisions in relation to Group A, B and C projects;

Ministers, heads of ministerial equivalent bodies and Government bodies, and chairmen of provincial people's committees may authorize or delegate authority to the body at the immediately lower level to make the investment decision in relation to Group B and C projects.

(b) Chairmen of people's committees of districts and communes shall make investment decisions in relation to projects within the scope of the local budget, after the people's council at the same level has approved.

(c) Depending on the specific conditions in each locality, the chairman of a provincial people's committee may make specific regulations permitting the chairman of the people's committee at the district level to make investment decisions for projects within the scope of the local budget with invested capital of up to five billion Vietnamese dong and permitting the chairman of the people's committee at the commune level to make investment decisions for projects with invested capital of up to three billion Vietnamese dong. Separate regulations of the Prime Minister of the Government shall apply to delegation of authority by people's committees of cities and provinces under central authority.

3. The investor shall make the investment decision for a project funded by other capital sources, including a combination of funding sources, and shall be responsible for such decision.

4. The person competent to make the investment decision shall do so only after he or she has the results of evaluation of the project. In the case of projects funded by credit facilities, organizations providing loans shall evaluate financial plans and schedules for repayment of loans in order to decide whether or not to make loans prior to any investment decision being made by the person competent to do so.

5.The contents of an investment decision for construction of works shall be in accordance with the form in Appendix 3 to this Decree.

Article 12 Eco-technical report on construction of works

1. The investor in the following construction works shall not be required to formulate a project but shall be required only to formulate an eco-technical report for submission to the person competent to make the decision approving the investment:

(a) Buildings used for religious purposes;

(b) Works being upgrade, repair, improvement or new construction of headquarters of a body with total invested capital below three billion Vietnamese dong;

(c) Social infrastructure projects with total invested capital below seven billion Vietnamese dong using State budget funds and for non-business purposes, in conformity with the master plan for socio-economic development and with construction master plans, either with an approved investment policy or already arranged within the annual investment master plan.

2. The contents of an eco-technical report on construction of works shall be as stipulated in clause 4 of article 35 of the Law on Construction.

3. The person competent to make the investment decision as stipulated in article 11 of this Decree shall arrange evaluation of the eco-technical report on construction of works in order to make the investment decision.

4. The department stipulated in article 9.5 of this Decree shall arrange evaluation of the design drawings for execution in the eco-technical report on construction of works in the case of projects funded by capital from the State Budget with total invested capital of five hundred (500) million Vietnamese dong or more. For the remaining projects, the investor shall arrange evaluation of the design drawings for execution in the eco-technical report on construction of works and shall report thereon to the person competent to make the investment decision prior to approval.

Article 13 Revision of investment project for construction of works

1. After an investment decision has been issued in respect of a project for construction of works, it may only be revised in one of the following cases:

(a) Upon occurrence of an event of force majeure or natural disaster, such as earthquake, flood, tidal wave or landslide, or in the event of war or danger of war;

(b) Upon irregular fluctuation in the price of raw materials or in the exchange rate of the foreign currency section of funding, or upon promulgation by the State of new regulations changing the level of investment costs in construction of works;

(c) When the person making the investment decision or the investor makes a change after identification of new factors which yield higher eco-technical efficiency for the project;

(d) When the construction master plan changes and thereby directly impacts on the project.

2. When a change to a project does not alter the approved scale, project objectives or total invested capital, the investor shall be permitted to revise the project. If a revision to the project alters the preliminary designs on architecture, the master planning, the initial scale, the project objectives or the approved total invested capital, the investor shall make a submission to the person making the investment decision for consideration and decision. The revised items must be re-evaluated.

3. The competent person issuing a decision revising an investment project for construction of works shall be responsible before the law for his or her decision.