Chương 5 Nghị định 16/2005/NĐ-CP: Điều kiện năng lực của tổ chức, cá nhân trong hoạt động xây dựng

Chapter V

CONDITIONS APPLICABLE TO CAPABILITY OF ORGANIZATIONS AND INDIVIDUALS TO ENGAGE IN CONSTRUCTION ACTIVITIES

Article 48 General provisions on conditions applicable to capability of organizations and individuals

1. Organizations and individuals participating in construction activities must satisfy fully the conditions on capability appropriate to the type of project and to the level and grade of construction works and work in accordance with the provisions of this Decree.

2. Individuals engaged in construction activities must have a degree or certificate issued by a legal training establishment on completion of training appropriate for the task that he or she accepts.

3. Individuals accepting the tasks of person in charge of design of construction master plans; person in charge of design of building works; manager of design drawings; person in charge of construction survey; person in charge of supervision of execution of building works and independent practitioners engaged in work of design of construction master plans, design of building works, or supervision of execution of building works must have a practising certificate in accordance with the provisions of this Decree.

4. Individuals accepting the tasks of director of consultancy for project formulation, head of a building site or supervisor of execution of building works may not accept two positions concurrently.

Individuals accepting the positions stipulated in clauses 3 and 4 of this article may only sign one long-term labour contract with one organization in accordance with law.

5. The capability for construction activities of an organization shall be determined in accordance with a ranking scale on the basis of the capability of the individuals in such organization to practise in construction activities, on the experience in construction activities of the organization, and on its financial capacity, equipment and managerial capability.

6. Consultancy organizations shall be permitted to undertake one, a number or all of the work being formulation of investment projects for construction of works, project management, construction survey, design of construction of works, and supervision of execution of building works if they satisfy fully the conditions on capability in accordance with this Decree. In the case of projects funded by capital from the State Budget, funded by credit facilities guaranteed by the State and by State owned credit facilities for investment and development, a contractor designing the building works shall not be permitted to sign a contract with an investor to act as consultant supervisor of the works that were designed by such contractor; and a contractor supervising execution of building works shall not be permitted to sign a contract with the builder to verify construction quality of the works that were supervised by such contractor.

Any consultancy organization which undertakes consultancy work shall be ranked for such consultancy work.

7. When an investor selects a contractor to undertake construction activities, the investor must rely on the provisions in this Decree on conditions applicable to capability, and shall be responsible before the law for loss caused by selection of a contractor which fails to satisfy the conditions on capability appropriate for the particular work.

Article 49 Practising certificates

1. Practising certificate means a certificate confirming practising capability which is issued to an engineer or architect with adequate qualifications and operational experience in the sectors of design of construction master plans, construction survey, design of construction of works, and supervision of execution of building works.

2. Practising certificates shall be issued on a unified form and shall be valid nationwide. Practising certificates must specify the permitted scope and sector of practice.

3. Practising certificates shall be issued by the Ministry of Construction. The Minister of Construction shall issue a decision on establishment of a Consultancy Council to assist the Minister to issue practising certificates.

4. The Ministry of Construction shall provide guidelines on issuance of practising certificates and regulations on the functions, duties and operational structure of the Consultancy Council.

Article 50 Conditions applicable to issuance of practising certificates to architects

To be issued with an architect practising certificate, an individual must have a university graduate or post-graduate degree in an architectural specialty or in construction master planning, and must have at least five years' design work experience and have participated in the architectural design of at least five building works or five approved construction master plans.

Article 51 Conditions applicable to issuance of practising certificates to engineers

To be issued with an engineer practising certificate, an individual must have a university graduate or post-graduate degree in a specialty appropriate for the sector in which he or she requests registration to practise, and must have at least five years' work experience in such sector and have participated in the design or survey of at least five building works.

Article 52 Conditions applicable to issuance of practising certificates for supervision of execution of building works

1. To be issued with a practising certificate for supervision of execution of building works, an individual must have a university graduate or post-graduate degree in a specialty appropriate for the sector in which he or she requests registration to practise, and must have participated directly in design or execution of building works or supervision of execution of building works for at least five years; and must have passed a professional training course on supervision of execution of building works.

2. In remote or distant areas, an individual must have qualifications from a college or vocational establishment in the appropriate construction specialty; and must have participated directly in design or execution of building works or supervision of execution of building works for at least five years; and must have passed a professional training course on supervision of execution of building works. In this case, the practising certificate shall only be valid for use to practise in remote or distant areas.

Article 53 Conditions applicable to capability of person in charge of project formulation

1. Two sets of conditions shall be applicable to capability to act as person in charge of project formulation, depending on the class of works. A person in charge of project formulation must have a university graduate degree in a specialty appropriate for the nature and requirements of the project, and must satisfy the following conditions applicable to the class of works:

(a) Class 1: Have worked in project formulation for a minimum of seven consecutive years, and have already acted as person in charge of project formulation of one Group A project or two Group B projects of the same type, and as person in charge of design of Class 1 construction works of the same project type;

(b) Class 2: Have worked in project formulation for a minimum of five consecutive years, and have already acted as person in charge of project formulation of one Group B project or two Group C projects of the same type, or as person in charge of design of Class 2 construction works of the same project type;

(c) In remote or distant areas, an individual having college or vocational establishment qualifications in the specialty appropriate for the project type and having worked in project formulation or design for a minimum of five consecutive years may act as person in charge of project formulation of a Class 2 project.

2. Scope of activity:

(a) Class 1: May act as person in charge of project formulation for important national projects and for projects in Groups A, B or C of the same type;

(b) Class 2: May act as person in charge of project formulation for projects in Groups B or C of the same type;

(c) An unranked individual may act as person in charge of project formulation of a project which only requires preparation of an eco-technical report on construction of works of the same type.

Article 54 Conditions applicable to capability of consultancy organizations with respect to project formulation

1. Two sets of conditions shall be applicable to consultancy organizations when they formulate a project, depending on the project type, as follows:

(a) Class 1: The organization must have at least twenty (20) architects, engineers or quantity surveyors appropriate to the requirements of the project, including one individual who satisfies the conditions on capability to act as person in charge of project formulation of a Class 1 project or as person in charge of design of a Class 1 project of the same type;

(b) Class 2: The organization must have at least ten (10) architects, engineers or quantity surveyors appropriate to the requirements of the project, including one individual who satisfies the conditions on capability to act as person in charge of project formulation of a Class 2 project or as person in charge of design of a Class 2 project of the same type.

2. Scope of activity:

(a) Class 1: May act on project formulation for important national projects and for projects in Groups A, B or C of the same type;

(b) Class 2: May act on project formulation for projects in Groups B or C of the same type;

(c) An organization not yet satisfying the conditions for ranking may only prepare an eco-technical report on construction of works of the same type.

Article 55 Conditions applicable to capability of director of project management consultants

1. Two sets of conditions shall be applicable to a director of project management consultants, depending on the project type. The director of project management consultants must have a university graduate degree in a construction specialty appropriate for the requirements of the project and must satisfy the conditions for each class as follows:

(a) Director of project management consultants for a Class 1 project: Have worked in design or execution of building works for a minimum of seven consecutive years, and have already acted as director or deputy director of project management consultants of one Group B project or two Group C projects of the same type, or as head of the building site of Class 2 construction works, or as person in charge of design of Class 1 construction works;

(b) Director of project management consultants for a Class 2 project: Have worked in design or execution of building works for a minimum of five consecutive years, and have already acted as director or deputy director of project management consultants of one Group B project or two Group C projects of the same type, or as head of the building site of Class 2 construction works, or as person in charge of design of Class 2 construction works;

(c) In remote or distant areas, an individual having college or vocational establishment qualifications in the specialty appropriate for the type of construction works and having worked in project formulation, design or execution of building works for a minimum of five consecutive years may act as director of project management consultants for a Class 2 project.

2. If the investor establishes a project management board, the director of project management must have the same capability as a director of project management consultants stipulated in clause 1 of this article.

3. Scope of activity:

(a) Class 1: May manage important national projects and projects in Groups A, B or C;

(b) Class 2: May manage projects in Groups B or C.

Article 56 Conditions applicable to capability of consultancy organizations with respect to provision of project management consultancy

1. Two sets of conditions shall be applicable to organizations providing project management consultancy as follows:

(a) Class 1:

- The organization has a director of project management consultancy for a Class 1 project appropriate to the type of project;

- The organization has at least thirty (30) architects, engineers or quantity surveyors appropriate to the requirements of the project, including at least three quantity surveyors;

- It has already managed one Group A project or two Group B projects of the same type;

(b) Class 2:

- The organization has a director of project management consultancy for a Class 2 project appropriate to the type of project;

- The organization has at least twenty (20) architects, engineers or quantity surveyors appropriate to the requirements of the project, including at least two quantity surveyors;

- The organization has acted as manager of one Group B project or of two Group C projects of the same type.

2. Scope of activity:

(a) Class 1: May manage important national projects and projects in Groups A, B or C;

(b) Class 2: May manage projects in Groups B or C;

(c) An organization not yet satisfying the conditions for ranking may only prepare an eco-technical report on construction of works of the same type.

Article 57 Conditions applicable to capability of person in charge of construction survey

1. Two sets of conditions shall be applicable to a person in charge of construction survey as follows:

(a) Class I: Must have an engineer practising certificate and have acted as Class 2 person in charge of construction survey and have managed five survey jobs on level II works;

(b) Class 2: Must have an engineer practising certificate and have participated in three survey jobs on level II works or four survey jobs on level III works after the date of issuance of the engineer practising certificate.

2. Scope of activity:

(a) Class 1: May act as person in charge of construction survey for the same type of special level, level I, level II, level III and level IV works;

(b) Class 2: May act as person in charge of construction survey for the same type of level II, level III and level IV works;

(c) In the case of topographical survey, may act as person in charge of construction survey for all types and scales.

Article 58 Conditions applicable to capability of consultancy organizations with respect to conducting construction survey

1. Two sets of conditions shall be applicable to consultancy organizations when conducting construction survey as follows:

(a) Class 1:

- The organization has at least twenty (20) engineers appropriate to the requirements of the construction survey, including one individual capable of acting as person in charge of Class I construction survey;

- The organization has appropriate facilities for each type of survey and a laboratory which satisfies the standards;

- The organization has conducted at least one survey task of the same type of special level or level I works, or at least two survey tasks of the same type of level II works;

(b) Class 2:

- The organization has at least ten (10) engineers appropriate to the requirements of the construction survey, including one individual capable of acting as person in charge of Class 2 construction survey;

- The organization has appropriate facilities for each type of survey;

- The organization has conducted at least one survey task of the same type of level II works, or at least two survey tasks of the same type of level III works.

2. Scope of activity:

(a) Class 1: May conduct construction survey for the same type of construction works being special level, level I, level II, level III and level IV;

(b) Class 2: May conduct construction survey for the same type of level II, level III and level IV works;

(c) In the case of topographical survey, only Class I and Class 2 survey organizations may conduct topographical survey for all types and scales.

Article 59 Conditions applicable to capability of person in charge of design of construction works

1. Two sets of conditions shall be applicable to a person in charge of design of construction works as follows:

(a)Class 1:

- Must have an architect practising certificate appropriate for the job that he or she undertakes;

- Must have already managed design of at least one construction works being special level works or level I at least two level II works of the same type, or already acted as chief designer of one main specialized sector on three construction works being special level or level I works of the same type;

(b) Class 2:

- Must have an architect practising certificate appropriate for the job that he or she undertakes;

- Must have already managed design of at least one construction works being level II works or two construction works being level III works of the same type, or already acted as chief designer of one main specialty on three construction works being level II works of the same type.

2. Scope of activity:

(a) Class 1: May act as person in charge of design of construction works for the same type of special level, level I, level II, level III and level IV works; and act as person in charge of project formulation for Group A, B and C projects of the same type;

(b) Class 2: May act as person in charge of design of construction works for the same type of level II, level III and level IV works; and may act as person in charge of project formulation for Group B and C projects of the same type.

Article 60 Conditions applicable to capability of manager of design of construction works

1. Two sets of conditions shall be applicable to a manager of design of construction works as follows:

(a) Class 1:

- Must have an architect practising certificate appropriate for the job that he or she undertakes;

- Must have already managed specialized design of at least one construction works being special level or level I works, or at least two level II works of the same type;

(b) Class 2:

- Must have an architect practising certificate appropriate for the job that he or she undertakes;

- Must have already managed specialized design of at least one construction works being level II works or at least two level III works, or participated in design of five construction works of the same type;

(c) In remote or distant areas, any individual having college or vocational establishment qualifications in the specialty appropriate for the relevant works and having worked in design for at least five consecutive years shall be permitted to manage design of construction works being level III or level IV works, except for the works stipulated in article 28 of the Decree on quality control of construction works.

2. Scope of activity:

(a) Class 1: May act as manager of specialized sector design of special level, level I, level II, level III and level IV works;

(b) Class 2: May act as manager of specialized sector design of level II, level III and level IV works.

Article 61 Conditions applicable to capability of consultancy organizations with respect to design of construction works

1. Two sets of conditions shall be applicable to consultancy organizations when they design construction works as follows:

(a)Class 1:

- The organization has at least twenty (20) architects or engineers in the appropriate specialty, including one individual capable of acting as person in charge of design of Class I construction works;

- The organization has appropriate design personnel for Class I works of the same type;

- The organization has already designed at least one special level or level I works, or at least two level II works of the same type;

(b) Class 2:

- The organization has at least ten (10) architects or engineers in the appropriate specialty, including one individual capable of acting as person in charge of design of Class 2 construction works;

- The organization has appropriate design personnel for Class 2 works of the same type;

- The organization has already designed at least one level II works, or at least two level III works of the same type.

2. Scope of activity:

(a) Class 1: May design construction works being special level, level I, level II, level III and level IV works of the same type; and may act on project formulation for important national projects and for projects in Groups A, B or C of the same type;

(b) Class 2: May design construction works being level II, level III and level IV works of the same type; and may act on project formulation for projects in Groups B or C of the same type;

(c) Any organization not yet satisfying the conditions for ranking may design level IV works of the same type; and may prepare an eco-technical report on construction of works of the same type.

Article 62 Conditions applicable to capability of consultancy organizations with respect to supervision of execution of building works

1. Two sets of conditions shall be applicable to consultancy organizations when they supervise execution of building works as follows:

(a) Class 1:

- The organization has at least twenty (20) individuals with practising certificates for supervision of execution of building works in the appropriate specialty;

- The organization has already supervised execution of at least one special level or level I works, or at least two level II works of the same type;

(b) Class 2:

- The organization has at least ten (10) individuals with practising certificates for supervision of execution of building works in the appropriate specialty;

- The organization has already supervised execution of at least one level II works, or at least two level III works of the same type.

2. Scope of activity:

(a) Class 1: May supervise execution of special level, level I, level II, level III and level IV works of the same type;

(b) Class 2: May supervise execution of level II, level III and level IV works of the same type;

(c) Any organization not yet satisfying the conditions for ranking may supervise execution of level IV works of the same type.

Article 63 Conditions applicable to capability of head of building site

1. Two sets of conditions shall be applicable to the head of a building site depending on the project type. The head of a building site must have a university graduate degree in a specialty appropriate for the type of works and must satisfy the conditions for a particular class as follows:

(a) Class 1: Have worked in execution of building works for a minimum of seven consecutive years, and have already acted as head of the building site on one special level or level I works, or on at least two level II works of the same type;

(b) Class 2: Have worked in execution of building works for a minimum of five consecutive years, and have already acted as head of the building site on one level II works, or on at least two level III works of the same type;

(c) In remote or distant areas, an individual having college or vocational establishment qualifications in the construction specialty appropriate for the type of works and having worked in execution of building works for a minimum of five consecutive years may act as head of a building site for a Class 2 project.

2. Scope of activity:

(a) Class 1: May act as head of a building site for construction of special level, level I, level II, level III and level IV works of the same type;

(b) Class 2: May act as head of a building site for construction of level II, level III and level IV works of the same type.

Article 64 Conditions applicable to capability of construction organizations with respect to execution of building works

1. Two sets of conditions shall be applicable to construction organizations when they execute building works as follows:

(a) Class 1:

- The organization has a head of building site for Class 1 works of the same type;

- The organization has sufficient architects or engineers in the specialty appropriate for the type of works to be constructed;

- The organization has sufficient technicians with certificates of training appropriate for the task accepted;

- The organization has basic building equipment appropriate for the type of works to be constructed;

- The organization has already built at least one special level or level I works, or at least two level II works of the same type;

(b) Class 2:

- The organization has a head of building site for Class 2 works of the same type;

- The organization has sufficient architects or engineers in the specialty appropriate for the type of works to be constructed;

- The organization has sufficient technicians with certificates of training appropriate for the task accepted;

- The organization has basic building equipment appropriate for the type of works to be constructed;

- The organization has already built at least one level II works, or at least two level III works of the same type.

2. Scope of activity:

(a) Class 1: May execute special level, level I, level II, level III and level IV works of the same type;

(b) Class 2: May execute level II, level III and level IV works of the same type;

(c)A construction organization not yet satisfying the conditions for ranking may execute building works being improvements or repairs with a total invested capital of below three billion Vietnamese dong and separate dwelling houses.

Article 65 Conditions applicable to independent practitioners engaged in design, survey or supervision of execution of building works

1. The following conditions shall apply to independent practitioners engaged in design, survey or supervision of execution of building works:

(a) Must have a practising certificate appropriate for the sector in which he or she practises;

(b) Must have business registration in accordance with law to practise design, survey or supervision of execution of building works.

2. Scope of activity:

(a) An independent practitioner engaged in construction survey may only provide consultancy to an investor on formulating survey tasks and on evaluation and approval of results of each type of survey commensurate with his or her practising certificate;

(b) An independent practitioner engaged in construction design shall be permitted to design construction works being level IV works of the same type and separate dwelling houses;

(c) An independent practitioner engaged in supervision of execution of building works shall be permitted to supervise execution of building works being level IV works of the same type and separate dwelling houses.

3. Independent practitioners engaged in construction activities must comply with all provisions of law.

Article 66 Rights and obligations of individuals issued with practising certificates

1. Individuals who are issued with practising certificates shall have the following rights:

(a) To use the practising certificate to conduct work in accordance with law;

(b) To lodge a complaint or denunciation upon discovery of a breach of the regulations on issuance of practising certificates.

2. Individuals who are issued with practising certificates shall have the following obligations:

(a) To attend training classes in their specialties relevant to issuance of practising certificates for design, survey or supervision of execution of building works;

(b)To engage only in design, survey or supervision of execution of building works within the scope permitted in their practising certificates;

(c) To be responsible before the law for items of work and quality of work performed by them and for files prepared by them;

(d) Not to alter or lend out their practising certificates.

Article 67 Conditions applicable to capability of foreign individuals and organizations conducting project formulation, project management, construction survey, construction design, execution of building works and supervision of execution of building works

Foreign individuals and organizations practising in project formulation, project management, construction survey, construction design, execution of building works and supervision of execution of building works in Vietnam must satisfy the conditions on capability in accordance with this Decree and guidelines of the Ministry of Construction on issuance of practising certificates.